Rezart Osmani v. Universal Structural Restorations Ltd. and Ludgero De-Almeida

COURT FILE NO.: CV-20-00003461

DATE: 2022-12-09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rezart Osmani Plaintiff

– and –

Universal Structural Restorations Ltd. and Ludgero De-Almeida Defendants

COUNSEL:

Filomena Kandola, Counsel for the Plaintiff

Nicole D. Tellier, Counsel for the Defendant, Universal Structural Restorations Ltd.

Albert Campea, Counsel for the Defendant, Ludgero De-Almeida

HEARD: May 20, 24, 25, 27, 30, 31, June 1, 2, 3, 6, 7, and 10, 2022

REASONS FOR DECISION

J. Di Luca J.

A. Overview of the Claim

[1] Like many people before him, Rezart Osmani came to Canada armed with a desire to work hard and a dream to provide for his family. He claims that his dream was disrupted by the abuse he suffered at the hands of his supervisor, Ludgero De-Almeida, and his employer, Universal Structural Restorations Ltd. (“USRL”). This case is about whether that abuse happened and whether Mr. Osmani was otherwise mistreated by Mr. De-Almeida and USRL in a manner that attracts civil liability.

[2] Mr. Osmani started working for USRL in December 2018. He was initially hired “off the books” as a labourer but, in February 2019, he secured Temporary Foreign Worker status under Canada’s Labour Market Impact Assessment (“LMIA”) program.

[3] Mr. Osmani claims that he was subjected to humiliating, degrading and embarrassing conduct by Mr. De-Almeida throughout the time of his employment at USRL. The conduct included derogatory and discriminatory language, profanity and threats related to Mr. Osmani’s immigration status.

[4] Mr. Osmani also claims that he was punched in the testicles by Mr. De-Almeida in front of a group of co-workers. As a result of the assault, on of Mr. Osmani’s testicles turned to mush, stopped functioning and was ultimately surgically removed.

[5] Mr. Osmani also suffered injuries when he fell from a ladder at a job site. He claims that USRL interfered with his ability to obtain compensation from the Workplace Safety and Insurance Board (“WSIB”). He also claims that when he returned to work, the conditions were intolerable and resulted in him being constructively dismissed.

[6] He wants to be compensated, not only for the lost testicle but also for the manner in which he was treated and the impact that this treatment has had on all aspects of his life. In his statement of claim, Mr. Osmani seeks the following from the defendant USRL:

a. Damages for pay in lieu of reasonable notice equivalent to four months’ wages or $28,218.68;

b. Damages for unpaid wages of $10,736;

c. Damages for loss of group health benefits coverage during the applicable notice period equivalent to 10% of gross wages for the period or $2,821.87;

d. Accrued unused vacation and statutory vacation pay as per the Employment Standards Act;

e. Damages of $5,000 for the intentional and inordinate delay in issuing a Record of Employment (“ROE”);

f. Damages in the amount of $50,000 for violations of the Ontario Human Rights Code;

g. Damages in the amount of $100,000 for the tort of human trafficking contrary to the Prevention of and Remedies for Human Trafficking Act (“PRHTA”);

h. Aggravated damages in the amount of $500,000.00 for the manner of his dismissal; and,

i. Punitive damages in the amount of $1,000,000 due to the USRL’s malicious, oppressive and high-handed misconduct that offends the court’s sense of decency and for the purpose of retribution, denunciation and deterrence.

[7] Mr. Osmani claims the following against the defendant, Mr. De-Almeida:

a. Damages for the torts of intentional infliction of mental suffering, battery and assault in the amount of $100,000 each;

b. Damages in the amount of $100,000 for the tort of human trafficking contrary to the PRHTA;

c. Damages in the amount of $16,500.00 to account for profits that have accrued to Mr. De-Almeida as a result of human trafficking contrary to the PRHTA;

d. Punitive damages in the amount of $150,000 due to Mr. De-Almeida’s malicious, oppressive and high-handed misconduct that offends the court’s sense of decency and for the purpose of retribution, denunciation and deterrence.

[8] The plaintiff claims that USRL is vicariously liable for the tortious acts of Mr. De-Almeida.

[9] The plaintiff also claims against both defendants jointly and severally, non-pecuniary damages of $100,000 for pain and suffering, emotional distress and for loss of enjoyment of life and impairment to relationships and physical ability.[^1]

[10] Lastly, the plaintiff seeks pre- and post-judgment interest and costs.

[11] The defendants seek a dismissal of all claims. They argue that Mr. Osmani’s account of the key events is not sufficiently credible to meet the civil standard of proof. In short, their position is that Mr. Osmani has not honestly recounted how his testicle came to be injured or how and why his employment at USRL came to an end. Moreover, they suggest that Mr. Osmani has greatly exaggerated the nature and extent of the mistreatment he received from Mr. De-Almeida and USRL.

[12] I will start my reasons with a brief overview of my final determinations followed by a summary of the evidence called and tendered at trial. I will then make over-all credibility findings and set out my key factual findings. I will then turn to the various claims pleaded and address each one in turn, starting with a review of the applicable legal principles and then the application of those principles to the facts as I have found them. In the course of doing so, I may refer to additional aspects of the evidence not covered in my summary and/or key factual findings.

B. Overview of Final Determinations

[13] Based on the reasons that follow, I am satisfied that Mr. Osmani has established the following causes of action and amounts of damages:

a. The tort of battery with general and aggravated damages of $100,000 jointly and severally between the defendants and punitive damages of $25,000 against Mr. De-Almeida alone;

b. The tort of assault with general damages of $10,000 jointly and severally between the defendants;

c. Violations of the Human Rights Code with damages of $50,000 against USRL;

d. Wrongful dismissal with damages of $4,364.70 which is equal to four months’ wages, less applicable mitigation, and in addition aggravated or moral damages of $75,000 and punitive damages of $25,000;

e. Unpaid wages of $5,794.

[14] I am not satisfied that Mr. Osmani has established the following causes of action and they are dismissed:

a. The tort of intentional infliction of mental suffering;

b. The tort of human trafficking;

c. Inconvenience damages for the late delivery of the ROE; and,

d. The claim for unpaid vacation pay during the period of employment.

C. Summary of the Evidence

[15] Rezart Osmani is the plaintiff. He is sometimes referred to as “Zak” or “Reza.” Mr. Osmani was born in Albania. He came to Canada in 2017 and found work as a labourer. He eventually gained status as a Temporary Foreign Worker. Prior to arriving in Canada, he lived in Italy where he lived and worked for a number of years after leaving Albania. His family, including his wife, son and daughter, eventually joined him in Canada as well.

[16] Mr. Osmani is a skilled labourer, though his employment in Canada was mainly as a general labourer. At the time of trial, he was 48 years old. He had been in a relationship with his wife for 30 years, with two children, ages 28 and 16.

[17] As a younger man, he was very involved in sports, especially cycling. He was in excellent physical shape and never had any issues with his general health and, more particularly, his sexual health.

[18] Redi Osmani is Mr. Osmani’s son. Redi works as a plumber and now employs his father as an assistant.

[19] USRL is a construction company owned by Onofrio Callipo and Basil Boutakis. Mr. Callipo has been in the construction industry for over 30 years, though he initially trained to be a chef.

[20] USRL does restoration contracting on buildings. At its height, USRL employed approximately 40-50 employees. By 2018, that number had dropped to approximately 20 employees.

[21] Simone Cunha was the office manager at USRL during the relevant time periods. She handled payroll and HR matters. She was also the “go-between” for employees and the owners of the company. While she figures prominently in the narrative of events that follows, she was not called as a witness at this trial.

[22] Paul Leal acted as Mr. Callipo’s “right-hand guy” and oversaw all the company’s projects. The company also employed a number of foremen, including Paul Machado and Fernando Fria.

[23] I turn next to providing a detailed summary of the more relevant aspects of the evidence called by each party. As indicated, I will review additional evidence when dealing with the specific claims advanced.

The Plaintiff’s Evidence

Rezart Osmani

Introduction to Ludgero De-Almeida

[24] Mr. Osmani met the defendant, Ludgero De-Almeida, in October 2017 through a friend who suggested that he could obtain employment with Mr. De-Almeida’s employer, CPF Paving. At the time, Mr. Osmani’s English was very poor. He understood roughly 10% of what was said to him and did not speak any English.

[25] Mr. Osmani was hired at CPF Paving and commenced working as a general labourer. Mr. De-Almeida was Mr. Osmani’s supervisor at CPF Paving. The company was owned by Domenic Panetta. Mr. De-Almeida’s two sons were also working at CPF Paving at the time.

[26] Mr. Osmani did not particularly like Mr. De-Almeida as he found him to be too harsh and tough. According to Mr. Osmani, Mr. De-Almeida would often refer to him as “a fucking Albanian” or “stupid Albanian.” When Mr. Osmani explained that he had learned the job while living in Italy, Mr. De-Almeida called him a “fucking Italian” or “stupid Italian.”

[27] According to Mr. Osmani, Mr. De-Almeida would also say things like “I have your balls in my hand…” and whenever Mr. Osmani complained or made a suggestion about work issues, Mr. De-Almeida threaten to “send him back”, which Mr. Osmani perceived as a reference to his immigration status. At the time, Mr. Osmani did not have a permit to work in Canada and feared being sent back to Albania.

[28] Mr. Osmani remained at CPF Paving for approximately four to six weeks. He then quit and went to look for work elsewhere. After a few unsuccessful months of searching for work, Mr. Osmani went to speak with Mr. Panetta to see if he could re-join CPF Paving. While Mr. Osmani did not relish the idea of returning to work with Mr. De-Almeida, his immigration status made it difficult to find other employment opportunities.

[29] During his second stint at CPF Paving, Mr. Osmani explained that Mr. De-Almeida continued with his harsh manner. He would use phrases like “Don’t piss me off” and “I’m going to slap you.”

The Move from CPF Paving to USRL

[30] In mid-November 2018, Mr. De-Almeida decided to change company and join the corporate defendant, USRL. Mr. De-Almeida told Mr. Osmani that he and his sons were joining USRL and invited him to join them. Mr. Osmani had a chance to meet the owner of USRL, Mr. Callipo, at a job site where CPF Paving was doing some subcontracting work for USRL. They conversed in Italian and discussed Mr. Osmani’s work permit.

[31] In cross-examination, Mr. Osmani was shown a Labour Market Assessment Application form which appears to be a form filled out by USRL seeking a work permit for Mr. Osmani. The form is dated September 11, 2018, which is at a time when Mr. Osmani was employed at CPF Paving. Mr. Osmani denied seeing this form and explained that he was not aware of when the document process for his work permit was started.

[32] Mr. Osmani agreed to join Mr. De-Almeida at USRL, despite the fact that he viewed Mr. De-Almeida as abusive. He hoped that once at USRL he would have the opportunity to work under other supervisors. Mr. Osmani understood that Mr. De-Almeida recommended him for the job at USRL, and further understood that Mr. De-Almeida asked USRL to help Mr. Osmani with his work permit.

The “Off the Books” Employment at USRL

[33] While at USRL, Mr. Osmani did a variety of manual labour jobs including painting, sanding, chipping, and installing water-proofing membranes. He understood the company hierarchy by the colour of the hardhats: supervisors and bosses wore orange hardhats, the foreperson of a site would wear a white hardhat and workers/general labourers wore blue hardhats.

[34] At the time of joining USRL, Mr. Osmani was awaiting his work permit which he had submitted through his immigration consultant. The work permit had USRL as Mr. Osmani’s sponsor and it was finally issued in February 2019.

[35] Between November 2018 and February 2019, Mr. Osmani worked “off the books” and was paid in cash. According to Mr. Osmani, the company would issue a cheque which would be cashed by either Mr. De-Almeida or Mr. Leal. Mr. Osmani would then receive cash. As corroboration of his evidence on this issue, Mr. Osmani referred to a text exchange between himself and Ms. Cunha dated January 14, 2019, wherein Ms. Cunha states “If ludgero passes by I’ll give it to him.” According to Mr. Osmani, this text exchange was in relation to his pay cheque.

[36] Mr. De-Almeida also told Mr. Osmani that he had to “pay” for the cash. While the official hourly rate was $37/hr, Mr. Osmani believes he ultimately received somewhere between $27 and $30/hr for the hours worked during this period of time. He was working between 35 and 44 hours per week, which suggests that the “cost” of getting cash was roughly $300-$400 per week. As well, there was no vacation time paid and no medical benefits offered during this period.

[37] During the period of time when Mr. Osmani was “off the books”, he would receive weekly pay stubs from Ms. Cunha. The pay stub was generic and did not relate specifically to Mr. Osmani. Nonetheless, the pay stub purported to detail source deductions for taxes and other remittances ostensibly made by USRL on Mr. Osmani’s behalf. Mr. Osmani was told by Ms. Cunha that his name would not be on the pay stubs until he obtained his work permit.

[38] Mr. Osmani did not complain about having to “pay for cash.” He simply assumed this was a normal part of working “off the books.” He agreed that none of his text messages or recordings reveal any discussion about having to pay for cash.

[39] In terms of his work permit, Mr. Osmani testified that he paid his immigration consultant $5,000, comprised of $3,500 in cash and $2,500 of value in painting services performed at her workplace. Mr. Osmani also explained that he gave $1,000 in cash to Mr. De-Almeida for the work permit fee that was paid by USRL.

[40] In addition to “paying for cash”, Mr. Osmani explained that he was also required to remit $2/hr back to the USRL, ostensibly for union dues. He would do this by bringing cash and giving it to Ms. Cunha. Mr. Osmani referred to a document which set out the number of hours he worked each month for 2019. At the bottom of this document, there is a handwritten notation stating “x2hr - $1,474.00.” According to Mr. Osmani, this document was given to him by Ms. Cunha when he gave her $1,474 in cash at the end of 2019. Mr. Osmani agreed that he never raised any issue regarding this payment either in his text messages or elsewhere in his communications with Ms. Cunha.

[41] On January 25, 2019, Mr. Osmani signed an employment contract with USRL. Ms. Cunha signed on behalf of the corporation. The agreement provided for a wage of $37/hr with 35-44 hours per week.

The Testicle Injury

[42] Mr. Osmani described that on December 18 or 19, 2018, he suffered a significant injury at work at the hands of Mr. De-Almeida. He was working a job site on Richmond Street. USRL employees, including Mark De-Almeida, Michael Toste, Paul Machado and others had gathered for a meeting in a small room on the first floor of the parking lot at around 9:30 or 10:00 a.m. Mr. De-Almeida was also present and everyone was sitting on paint buckets. During this meeting, Mr. Machado asked whether Mr. Osmani could join his crew to do some parging. Mr. De-Almeida replied, “nobody can touch my crew.” When Mr. Osmani suggested that he would be happy to go wherever the company needed him to go, Mr. De-Almeida reacted by swinging his left fist towards Mr. Osmani’s testicles.

[43] Mr. De-Almeida’s knuckles made contact with Mr. Osmani’s left testicle and Mr. Osmani ended up on the ground breathless. No one reacted or tried to help. After three or four minutes on the ground, Mr. Osmani went to a bathroom where he noticed that his testicle had swollen twice its regular size. After leaving the bathroom, he returned to the job site and told Mr. Machado that he was going to leave. Mr. Machado told him to ask Mr. De-Almeida for permission to leave. Mr. Osmani told Mr. De-Almeida that he wanted to go home as he was not feeling well. Mr. De-Almeida agreed, and Mr. Osmani was driven home by one of the company drivers who was dropping off supplies. Mr. Osmani described how he was in severe pain and could not breathe as a result of the strike to the testicles.

[44] Mr. Osmani did not initially seek medical attention as he did not have a Health Card. The incident occurred at a time when Mr. Osmani was still working “off the books.” Mr. Osmani also told his wife about the injury though he denied telling his son. In cross-examination, he acknowledged that at discovery he testified that he had told his son, though he noted that he corrected this evidence by way of an affidavit provided to counsel subsequent to his discovery.

[45] By April 2019, Mr. Osmani was still suffering pain in his testicle, and it remained swollen. He would apply ice regularly. He was also taking 10-12 Advil per day to manage the pain and the medication was affecting his stomach. The pain in his testicle made it hard for him to wear pants and underwear that would apply pressure to the area when he kneeled or moved in a certain manner. The pain also made it difficult to have sex.

[46] As a result of the continued pain, Mr. Osmani eventually decided to go see a doctor. He also explained that some delay in going to see a doctor was based on his reluctance to show the location of his injury to his female family physician, Dr. Marsetti. In cross-examination, he acknowledged that he had seen Dr. Marsetti for hemorrhoids in the past and had no difficulties in dealing with that issue.

[47] Mr. Osmani was asked to explain why he used the term “kicked” as opposed to “punched” when he initially told his doctor about the cause of his injury. He explained that given his limited facility with English, he used the words “punch” and “kick” interchangeably. He noted that he was essentially trying to convey that he was “kicked with a fist.” In cross-examination he acknowledged that in both Albanian and Italian, the words for “punch” and “kick” are different. Mr. Osmani also acknowledged that the word “accidentally” appears in Dr. Marsetti’s notes. However, he denied suggesting to her that the punch was accidental.

[48] When Mr. Osmani saw Dr. Marsetti in April of 2019, he told her the injury had occurred “two months ago.” Mr. Osmani explained that by February 2019, he had obtained his work permit and a Health Card, so he simply chose a date that fit this time period. In cross-examination, Mr. Osmani acknowledged that he intentionally provided the wrong date for the incident. He also agreed that while he knew he could file a WSIB claim in relation to the testicle injury, it never crossed his mind. He only filed a WSIB claim much later and it was denied due to delay.

[49] After Mr. Osmani saw Dr. Marsetti, he was referred to Dr. Elias, a specialist in urology. He saw Dr. Elias on a number of occasions and was prescribed three different medications. Despite the medications, the pain remained constant, and Dr. Elias eventually referred Mr. Osmani to Dr. Jarvi.

[50] The COVID pandemic caused delays in terms of seeing Dr. Jarvi, but Mr. Osmani eventually managed to see and be assessed by him. Dr. Jarvi suggested an injection which would freeze the area around the testicle. Mr. Osmani understood that this was a final option before surgery.

[51] Mr. Osmani attended at Mount Sinai Hospital for the injection. It was a painful procedure that unfortunately provided no lasting pain relief. As a result, Mr. Osmani agreed to pursue surgery as a final option to rid himself of the pain.

[52] The surgery resulted in the removal of Mr. Osmani’s left testicle. He was in hospital for part of a day and then was sent home to recover. He now has a small scar where the surgery incision was performed.

Discussions with Mr. De-Almeida and USRL about Testicle Injury

[53] Within days of the incident, Mr. Osmani advised Paul Leal, the “right-hand man” supervisor at USRL, that Mr. De-Almeida punched him in the testicles. At the time, Mr. Leal was wearing an orange hardhat which signified that he was a supervisor. Mr. Osmani approached Mr. Leal first as they were roughly the same age and he hoped Mr. Leal would be understanding. According to Mr. Osmani, Mr. Leal was sympathetic. He told Mr. Osmani that it should not have happened and he advised Mr. Osmani to report the incident to Simone Cunha, the office manager. It appeared to Mr. Osmani that Mr. Leal already knew of the injury as he approached Mr. Osmani and asked “how are you feeling?”

[54] Mr. Osmani denied telling Mr. Leal that the punch to the testicles occurred while they were employed with CPF Paving. In cross-examination, Mr. Osmani acknowledged that none of his texts to Mr. Leal refer to the testicle injury.

[55] In December 2018, USRL held a Christmas party for employees. During the party, Mr. Osmani approached Ms. Cunha and told her that Mr. De-Almeida punched him in the testicles. He also explained that Mr. De-Almeida had engaged in name calling. According to Mr. Osmani, Mr. Callipo joined the conversation. Ms. Cunha explained what she had just learned, and Mr. Osmani also spoke directly to Mr. Callipo in Italian. Mr. Callipo appeared surprised when he heard about what had happened. In response, he stated, “Why this fucking guy did this?”

[56] Following his reporting to Ms. Cunha and Mr. Callipo, Mr. Osmani was not advised of any internal investigation into the incident, nor was he advised of any corrective or disciplinary actions against Mr. De-Almeida. That said, for a period of approximately one month Mr. Osmani was separated from Mr. De-Almeida and he worked under a different supervisor, Carlito. Mr. Osmani was very happy working under Carlito’s supervision. However, Mr. Osmani was soon moved back under Mr. De-Almeida.

[57] In March 2019, Mr. Osmani advised his immigration consultant, Ms. Alba Zoto, about the punch to the testicles and how he was treated by Mr. De-Almeida. Ms. Zoto was an acquaintance of Mikel Koijdeli, who was an employee of USRL. She contacted Mr. Koijdeli in Mr. Osmani’s presence and reported the information received from Mr. Osmani to him. Mr. Koijdeli invited Mr. Osmani to come speak with him at the USRL office. Mr. Osmani went to USRL that same day and met with Mr. Koijdeli, telling him about the punch, the name calling and the general treatment by Mr. De-Almeida. Mr. Koijdeli appeared surprised and told Mr. Osmani not to worry as he would eventually get his “immigration papers” and they could work together in the future. Mr. Osmani understood this as an implicit offer by Mr. Koijdeli to hire him if the need arose in the future.

[58] Mr. Koijdeli also explained that he would contact the other owner of USRL, Mr. Basil Boutakis, to report what had happened. Mr. Osmani never heard anything further.

[59] According to Mr. Osmani, approximately two to three months after the surgery to remove his testicle, he sent Mr. De-Almeida photographs of the surgical scar and surrounding area. A series of text messages between Mr. Osmani and Mr. De-Almeida sent and received from February 2019 to October 27, 2020 were tendered into evidence. In a text exchange dated October 27, 2020, Mr. Osmani is seen in a photo with his pants pulled down and shirt lifted up. Mr. Osmani explained that he sent this photo to Mr. De-Almeida as Mr. De-Almeida would often say “I have your balls in my hand.” Mr. Osmani intended the photo to convey the message that Mr. De-Almeida had succeeded in getting one of his testicles. Mr. Osmani acknowledged that Mr. De-Almeida responded to the text message and asked Mr. Osmani to call him. Mr. Osmani explained that he did call back, but they did not end up speaking about it.

[60] Mr. Osmani agreed that apart from the photographs of the surgical scar and surrounding area, the text messages with Mr. De-Almeida make no specific reference to the testicle injury. He acknowledged sending some texts to Mr. De-Almeida in March of 2019, indicating that he could not come in to work and/or could not drive. He denied that he sent these texts because of problems with hemorrhoids and maintained they were in relation to the pain in his testicle. Nonetheless, he agreed that he did not go see Dr. Marsetti about the pain in his testicle until April 2019.

Mr. De-Almeida as Supervisor

[61] Mr. Osmani was asked to describe what Mr. De-Almeida was like as a supervisor. He explained that Mr. De-Almeida would routinely engage in demeaning pranks. These included instances where Mr. De-Almeida would hold a shovel upright and let it fall towards Mr. Osmani’s testicles, or allow a tape measure to snap shut towards Mr. Osmani’s testicles. At other times, Mr. De-Almeida would park his vehicle so close next to Mr. Osmani’s vehicle that Mr. Osmani could not enter from the driver’s side door. These pranks caused others present to laugh at Mr. Osmani and insult him.

[62] Mr. Osmani also described Mr. De-Almeida’s harsh manner. He related how one day he was sent to get coffee at Tim Hortons and Mr. De-Almeida “flicked” a coffee card at his face, which caused him to feel humiliated in front of his co-workers.

[63] On another occasion, Mr. Osmani was in a truck with Mr. De-Almeida and his son and one or both of them were smoking with the windows rolled down. As it was cold outside, Mr. Osmani asked Mr. De-Almeida to roll up the window and Mr. De-Almeida told him that if he did not like it, he could simply drive his car the next day. The following day, Mr. Osmani was told that if he brought his own car, he should stay home instead. Mr. De-Almeida added, “Don’t piss me off or I will slap you”, which was a phrase he used on more than one occasion.

[64] Mr. Osmani described telling Mr. De-Almeida that the surgery to remove his testicle had affected his intimate relations with his wife and that in response Mr. De-Almeida smirked and stated words to the effect, “I can help, bring me your wife.” This was a comment Mr. De-Almeida made on three or four occasions.

[65] Mr. De-Almeida would also routinely call Mr. Osmani derogatory names such as “stupid Albanian”, “fucking Albanian”, “stupid Italian” and “fucking Italian.” If Mr. Osmani reacted to this name calling, Mr. De-Almeida would say words to the effect, “for two years, I have your balls in my hands” and “the first plane, you go back.” Mr. Osmani understood these comments as references to his immigration status and a suggestion that Mr. De-Almeida would send him back to Albania.

[66] Mr. Osmani denied ever retorting with the phrase “stupid Portuguese” or any other offensive name calling. In cross-examination, Mr. Osmani explained that in 20 years of construction work, he had never heard such language used on a job site. Mr. De-Almeida was the only person who used that kind of language.

[67] Mr. Osmani said he was under constant humiliation while at work. Mr. Osmani described how on one occasion, Mr. De-Almeida’s son, Mark, observed the treatment being meted out by his father and he intervened by asking Mr. Osmani to go to Tim Hortons and commenting “my dad is an asshole.”

[68] A number of text messages between Mr. Osmani and Mr. De-Almeida were tendered into evidence. In a text dated February 14, 2019, Mr. De-Almeida uses the word “beach”, which Mr. Osmani understood as an instance of Mr. De-Almeida calling him a “bitch.” On March 19, 2019, Mr. Osmani sent a text indicating he was sick. Mr. De-Almeida replied, “Take the rest of the year off.” According to Mr. Osmani, the main reason he was feeling sick at this time was the injury to this testicle.

[69] While he was not physically afraid of Mr. De-Almeida, he feared that Mr. De-Almeida had the ability to have him removed from Canada. He recalled that during one instance where Mr. De-Almeida was making comments about having Mr. Osmani removed from Canada, Mr. De-Almeida made a comment along the lines of “I’m going to grow up your daughter” which he took to be an implicitly sexual comment. Mr. Osmani was angry over the comment but said nothing.

[70] Mr. Osmani agreed that Mr. De-Almeida also did several nice things for him. On one occasion Mr. De-Almeida drove over to Mr. Osmani’s and they went to Canadian Tire to by gifts for Mr. Osmani’s daughter. The gifts included a bike and a skateboard. On another occasion, when Mr. Osmani did some work at Mr. De-Almeida’s son’s home, he was given two Bench hoodies. Mark De-Almeida also gave him a set of knives on a wood stand. Mr. Osmani denied, however, that Mr. De-Almeida helped him pay his bills, including his legal bills.

The Work at Mr. De-Almeida’s Home

[71] In March 2019, Mr. Osmani was approached by Mr. De-Almeida who asked him to assist with renovation work at his home. Mr. Osmani had previously worked as a tile setter when he lived in Italy, and as such had the requisite skills. According to Mr. Osmani, Mr. De-Almeida asked Mr. Osmani to do this work as “pay back” for Mr. De-Almeida’s efforts in assisting Mr. Osmani with his work permit and immigration issues. Mr. Osmani denied that he simply offered to assist with the renovations as a kind expression of gratitude for Mr. De-Almeida’s efforts.

[72] Mr. Osmani explained that he installed tiles, including a scratch coat, in various rooms of the house and was also involved in painting significant portions of the home. He worked there on three consecutive weekends and on many days after work hours.

[73] Mr. Osmani felt like he had no choice but to perform the work for Mr. De-Almeida. At the time, he was on a work permit that was specifically connected to USRL, and he believed that he had to do the work for Mr. De-Almeida. In addition, Mr. De-Almeida had stated that he had the power to do whatever he wanted with Mr. Osmani’s work permit. In cross-examination, Mr. Osmani agreed that Mr. De-Almeida never specifically threatened the loss of his work permit. He also agreed that he did not know whether Mr. De-Almeida had any actual power or control over his work permit.

[74] Mr. De-Almeida did not ever discuss paying Mr. Osmani for the work done on the home and Mr. Osmani was never compensated for his efforts. In terms of estimating the value of his labour, Mr. Osmani testified that he obtained three or four quotes by telephone from painting companies. He also included estimates for tiling. In total, Mr. Osmani estimated he provided $16,500 in free labour to Mr. De-Almeida’s home renovation project. In cross-examination, Mr. Osmani agreed that he had no evidentiary support for the estimates he provided. He also agreed that he never asked to be paid for the work done nor did he ever object to doing the work.

The Fall from the Ladder

[75] On May 8, 2019, Mr. Osmani was on the Blackthorn job site in Toronto. He was instructed by Mr. De-Almeida to fill some cracks in blocks on the outside of the building they were working on. The cracks were not wide enough for cement, so Mr. Osmani was required to use a grinder to expand the cracks before filling them. He also needed a 10-foot ladder to reach the cracks which were approximately 13-14 feet off the ground. The grinder and ladder were provided by Mr. De-Almeida.

[76] While Mr. Osmani was repairing the cracks, he lost his balance and fell to the ground. He landed mainly on his buttocks and was in significant pain. He called for help several times. Eventually, he used his telephone to call Mark De-Almeida who arrived within five minutes. Mr. De-Almeida and his youngest son, Brendan, also arrived.

[77] Approximately 40-60 minutes after the fall, Mr. Leal arrived. It appeared to Mr. Osmani that Mr. Leal had been called by Mr. De-Almeida. Mr. Osmani could not recall seeing Stephanie Leal present at the site that day.

[78] He recalled hearing Mr. De-Almeida speaking to Mr. Callipo. He also recalled a discussion between Mr. De-Almeida and one of Mr. De-Almeida’s sons wherein the son suggested calling an ambulance. Mr. De-Almeida responded by saying that the company could not afford another WSIB claim. Ultimately, no one offered to call an ambulance and when Mr. Osmani asked whether one would be called, Mr. De-Almeida replied that they could not call one as the company would have “a problem.”

[79] Mr. Osmani testified that he remained on the ground where he fell from approximately 10:30 a.m. until around 3:00 p.m. A rolled-up jacket was placed under his head, but he was not initially provided with any other first aid treatment. Mr. Osmani was in significant pain and could not get up. He had pain in his neck which was worse when he moved. During that time, Mr. De-Almeida’s sons Mark and Brandon were taking turns staying with Mr. Osmani. Brandon was more sympathetic and was staying close to Mr. Osmani. Mark was playing games on his phone and smoking. Eventually, they brought Mr. Osmani a coffee, but nothing else was provided.

[80] After several hours passed, Mr. Osmani asked to be sent home. Mark and Brandon De-Almeida lifted him off the ground and carried him into his vehicle, which had been moved over close to the site of the fall. Mr. Osmani had an arm around each of their necks and they were holding him by his thighs. They placed Mr. Osmani in the back seat of his vehicle and then drove him home.

[81] Upon arrival at the home, Mr. Osmani’s son, Redi, was present. Mark and Brandon carried Mr. Osmani in his home and placed him on the couch in the living room. Redi became upset and was asking why his father had not been taken away by ambulance. Mark and Brandon explained that an ambulance was not needed.

[82] Approximately an hour and a half later, Mr. De-Almeida arrived at Mr. Osmani’s home. Mr. De-Almeida told Mr. Osmani that he could take whatever time off he needed in order to recover and that the company would “pay for everything.” Mr. De-Almeida then left with his sons.

[83] That evening, Mr. Osmani was in significant pain. He required assistance in order to move to the bathroom. Within three or four days, Mr. Osmani purchased crutches online and began using them to move around.

[84] On May 14, 2019, Mr. Osmani went to see his family doctor, Dr. Marsetti, and she sent him for an x-ray. Dr. Marsetti filled out a Functional Abilities Form for Mr. Osmani to provide to USRL. While Mr. Osmani told Dr. Marsetti what happened, he did not provide certain details including the name of his employer and his social insurance number (“SIN”). He was concerned that Dr. Marsetti might initiate a WSIB claim. He did not want USRL to get in trouble.

[85] Around May 18, 2019, Mr. De-Almeida asked Mr. Osmani to come see him during break time. He told Mr. Osmani to bring coffees. Mr. Osmani was using crutches to move around due to the pain from the fall. He nonetheless managed to get in his truck and drive towards a Tim Hortons near his home. On the way there, Mr. Osmani was involved in a minor motor vehicle accident. He bumped the car in front of him at low speed. He explained that he suffered no further injury in the accident.

[86] On May 22, 2019, Mr. De-Almeida was insisting on meeting Mr. Osmani. As he was having difficulty moving, Mr. Osmani sent a text to Mr. De-Almeida with a photo of crutches leaning up against his pick-up truck. They did not meet on this date.

[87] At some point, Mr. De-Almeida went to see Mr. Osmani at his home. He told Mr. Osmani that he had to come back to work as the company could not pay him to stay home any longer.

[88] Mr. Osmani did not initially report the injury to the WSIB. He was instructed not to do so by Mr. De-Almeida. However, after considering the matter, Mr. Osmani decided he would report the accident to the WSIB. He asked Dr. Marsetti to help him in this regard. He also told Ms. Cunha about his plan to report the injury to the WSIB.

[89] In June 2019, Mr. Osmani began receiving WSIB benefits which covered his weekly salary and the cost of physiotherapy and medical reports. Around June 11, 2019, Mr. Osmani had a telephone call with Ms. Cunha who expressed concern with the advice that Mr. Osmani was getting from his doctor. She suggested that Mr. Osmani go to the Emergency at Sunnybrook Hospital to seek an assessment. Ms. Cunha sent a text message with the address and telephone number for Sunnybrook Hospital. During her conversation with Mr. Osmani, she advised him to tell the doctors that he fell on the stairs at his home.

[90] Up until this time, Mr. Osmani had not been made aware of any investigation by the company into his accident. On June 17, 2019, Mr. Osmani met with Ms. Cunha. His son was also present. Ms. Cunha was holding a letter which she explained was a “report” prepared by the company. When Mr. Osmani looked at the report, he noted that it stated that he had not requested an ambulance.

[91] The meeting with Ms. Cunha on June 17, 2019 was partially recorded by Mr. Osmani. At the outset of the recording Mr. Osmani states “And him said I don’t need an ambulance?” to which Ms. Cunha replies “He said he asked you if you need ambulance and you said no.” Mr. Osmani then begins to give his version of events and Ms. Cunha explains that she is “gonna keep it very simple in the report” which she explains is for “internal” purposes. According to Mr. Osmani, this is when he first learned of the suggestion that he never asked for an ambulance.

[92] In late July or early August 2019, Mr. Osmani arranged to meet Mr. Callipo. He explained that he was being pressured to return to work and wanted to discuss the matter directly with the “big boss.” During this meeting, Mr. Callipo suggested that if Mr. Osmani ended his WSIB claim, he would be given “smaller jobs” for the same pay. Mr. Osmani declined as he felt that he was not capable of returning to work at that time.

[93] By approximately mid-September 2019, the WSIB had engaged a return to work process that involved meetings between the WSIB representative and management at USRL, including Ms. Cunha and Mr. Leal. The WSIB recommended that Mr. Osmani could resume work by performing light duties, three days a week for up to four hours a day. Tasks such as heavy lifting, pushing or pulling were prohibited, as was the use of heavy machinery and tools.

[94] Mr. Osmani returned to work in mid-September 2019. He explained that upon his return, Mr. De-Almeida would essentially ignore him and would not even speak with him. Mr. Osmani believed that the work restrictions had been communicated to Mr. De-Almeida. In cross-examination, Mr. Osmani agreed that following the filing of the WSIB claim and more particularly between September 2019 and November 2019, he had little communication with Mr. De-Almeida.

[95] By mid-November 2019, Mr. De-Almeida resumed speaking to Mr. Osmani. He was upset with Mr. Osmani for going to the WSIB against his direction. On one occasion in December 2019, Mr. De-Almeida brought out heavy tools used for chipping and cutting cement. While Mr. De-Almeida did not specifically instruct Mr. Osmani to perform the task with the heavy tools, Mr. Osmani observed that there were two sets of tools and only he and Mr. De-Almeida were present. He inferred that Mr. De-Almeida’s intention was that they would each use one set of the heavy tools. Mr. Osmani used the heavy tools for approximately two hours. He then carried heavy buckets of cement pieces. While he raised no specific objection with Mr. De-Almeida, he felt pressure to do the work.

[96] Mr. Osmani also felt pressure from USRL to close the WSIB file. In particular, he was contacted several times by Ms. Cunha who indicated that the WSIB file was to be closed before the end of the year. On November 22, 2019, Ms. Cunha emailed him with a form to be filled out by his doctor in order to close the WSIB claim.

[97] Around this time, Mr. Osmani returned to working full-time hours. However, after doing so for one week, he determined that he was not physically capable of performing the job for full-time hours, so he decided to scale back to part-time hours. Up until that point, he had been receiving a wage top-up from the WSIB. After trying to work full-time hours, the wage top-up stopped even though he returned to part-time hours after a week. When he followed up with the WSIB, Mr. Osmani was advised that USRL had informed the WSIB that he had returned to full-time work. In cross-examination, Mr. Osmani agreed that he raised no objection to the WSIB decision to end his wage top-up.

[98] While Mr. Osmani remained on light duties in December 2019, he was tasked by Mr. De-Almeida on two occasions to move cement and paint. While he was not directly instructed to move the cement bags, Mr. De-Almeida told him that the cement had to be organized by type. On one occasion, he spent hours moving 20 to 30 bags of cement at the USRL shop. He did not complain to Mr. De-Almeida and he noted that their rapport was cold.

[99] By January 2020, Mr. De-Almeida and Mr. Osmani were working together again. According to Mr. Osmani, Mr. De-Almeida would regularly refer to him as “a bitch” or “his bitch.” On one occasion, Mr. Osmani was explaining that the testicle injury was making things difficult with his wife. In response, Mr. De-Almeida suggested that he would give Mr. Osmani a punch in the other testicle, have that testicle removed also and then “take care” of his wife.

[100] Mr. Osmani quit his job at USRL towards the end of February 2020. He could tell that there was “no place” for him at the company. The dynamic had soured. He had been punched in the testicle and then left on the ground for hours after falling from a ladder. He could no longer take how he was being treated and was worried about what might happen to him next. In cross-examination, Mr. Osmani agreed that despite these feelings, he never complained in writing about his treatment at the hands of Mr. De-Almeida.

[101] At the time he left his employment, Mr. Osmani still had one year remaining on his work permit. Leaving USRL meant that he could no longer work under the work permit as it was specifically issued for employment at USRL. It also meant that he would lose his health care coverage.

[102] Mr. Osmani attended at the USRL offices to quit in person. He met Mr. Callipo and advised him that he was quitting. Mr. Callipo told Mr. Osmani to send an email to Ms. Cunha confirming his resignation.

[103] According to Mr. Osmani, he asked his son to prepare a letter of resignation. At the time, he did not read it in any detail as he was not proficient in English. He sent the email to Ms. Cunha from his email account. In cross-examination, Mr. Osmani agreed that the resignation letter makes no reference to Mr. De-Almeida. While he acknowledged that the resignation letter states, “I genuinely enjoyed my time at the company”, he denied that this was the truth. He maintained that the letter was simply “cut and paste” from the internet by his son.

[104] Mr. Osmani explained once he quit, he felt like a free man.

The Communications Following his Departure from USRL

[105] Following his departure from USRL, Mr. Osmani communicated with several of the people at USRL, including Ms. Cunha, Mr. De-Almeida, Mr. Leal and others. He did so because he wanted to let them know he had had surgery to remove his testicle. The communications were surreptitiously recorded by Mr. Osmani.

[106] On August 27, 2020, he met with Ms. Cunha at the USRL offices. During this conversation, Mr. Osmani advised Ms. Cunha that he had surgery on his testicle and he referenced an earlier discussion wherein he told her about his “problem” with Mr. De-Almeida. Ms. Cunha confirms a recollection of this earlier discussion and advises Mr. Osmani to do something about the injury. She offers to set up a meeting with the Mr. Callipo and Mr. Boutakis, the owners of USRL.

[107] During this discussion, Ms. Cunha tells Mr. Osmani that he should have stayed at USRL as Mr. De-Almeida is no longer there. She also acknowledges that “he pushed you out” and “he threatened you.” She tells Mr. Osmani that he should sue Mr. De-Almeida because he “basically destroyed your…life, basically because you’re suffering now…”

[108] In cross-examination, Mr. Osmani agreed that when speaking to Ms. Cunha, he referred to the testicle injury as having occurred “a year and a half ago”, which given the date of the conversation suggested that the injury occurred in February 2019. Mr. Osmani explained that he always referred to the incident as having occurred in February 2019, as he was worried about the implications of having worked before the arrival of his work permit.

[109] On September 3, 2020, Mr. Osmani called Ms. Cunha to follow up on the offer of a meeting with Mr. Callipo and Mr. Boutakis. During this call, Ms. Cunha confirmed that Mr. Callipo already knew of the injury to the testicle. Ms. Cunha also indicated that she had not heard back from Mr. Callipo or Mr. Boutakis about scheduling a meeting. Despite the offer, no meeting ever occurred.

[110] Mr. Osmani also called Mr. De-Almeida on September 3, 2020. During this call, the following exchange takes place:

Mr. De-Almeida: Are you working?

Mr. Osmani: Right now, no, I did surgery.

Mr. De-Almeida: Where?

Mr. Osmani: I did surgery, you remember, my testicle?

Mr. De-Almeida: Ya.

Mr. Osmani: Ya, from February to last year, or February or March, I no remember…you kicked me in my testicle.

Mr. De-Almeida: [laughs then sighs]

Mr. Osmani: Yeah man, and ah, its really bad and I did surgery.

And further on:

Mr. Osmani: are you doing interlock?

Mr. De-Almeida: Ya.

Mr. Osmani: I can come with you again…like, you can hurt me, another testicle.

Mr. De-Almeida: Oh…fuck.

Mr. Osmani: Hello?

Mr. De-Almeida: Yeah, I’ll help you with another testicle….

Mr. Osmani: You know, you keep it one testicle, you can keep another one, and that’s it, no?

Mr. De-Almeida: Yah…You don’t need those anyways…

[111] In cross-examination, Mr. Osmani agreed that during this conversation, it appears that he is trying to go back and work with Mr. De-Almeida. He explained, however, that he was simply trying to get Mr. De-Almeida engaged in discussion and never had any actual intention of resuming work for him.

[112] On October 27, 2020, Mr. Osmani contacted Mr. Leal by telephone. During this call, Mr. Osmani states, “You see my surgery my friend?” and Mr. Leal replied “Ya, ya, fuck, its big.” According to Mr. Osmani, he sent Mr. Leal a photo of the surgical scar relating to the removal of his testicle. Mr. Leal asks whether “compensation” is going to pay “because you got hurt at work.” When Mr. Osmani explains that “nobody…did this claim for the testicle”, Mr. Leal replies “Holy fuck….geez, fuck, that’s not good.” Mr. Leal also comments that “it doesn’t matter if you’re legal here or no legal, you gotta treat the people the same way…you no treat people like garbage.”

[113] Mr. Leal suggests that Mr. Osmani should speak to a lawyer and sue the company. He states, “tell them, eh, this happen at work, his foreman punch me, you know I told them, and look what happened now, now I’m stuck with this….”

Events After Leaving USRL

[114] After Mr. Osmani left USRL, he found employment as a handyman with Highcastle Homes. While this was not his chosen line of work, Mr. Osmani took the job because it was the first job that became available. He was initially paid $31.50/hr and after a couple months that was raised to $35/hr. The job did not pay benefits. It was a fixed term of one year, but Mr. Osmani left after seven months. He explained that the company found someone who could do his job for less pay, so they cut his contract short.

[115] After a period of unemployment, Mr. Osmani started working with his son as a plumber’s assistant.

[116] Mr. Osmani received his ROE from USRL almost one year after he left. The ROE is dated February 5, 2021 and was issued by Simone Cunha. Mr. Osmani did not initially know he was supposed to be given this document by USRL. However, in October 2020, he was trying to obtain Employment Insurance benefits and he was asked to provide his ROE. Mr. Osmani described how he needed to borrow money from family and friends to cover his expenses in the period of time when he was not employed.

The Physical and Mental Impacts of Employment at USRL

[117] Mr. Osmani explained that the testicle removal surgery, or orchidectomy, reduced the overall amount of pain he is in. It is a “3 to 4 out of 10”, whereas prior to the surgery it was often a “10.” The pain ebbs and flows, but is never completely gone. He continues to take Advil for the pain.

[118] Following surgery, Mr. Osmani developed side-effects including numbness over the area where the testicle was removed and on parts of his penis. He also has difficulty maintaining an erection and when he is able to ejaculate, there is blood in the ejaculate. Prior to the injury to his testicle, Mr. Osmani had no issues with erections and ejaculation.

[119] As a result of the injury to his testicle, Mr. Osmani is no longer able to have regular intercourse with his wife. He indicates that he now has sex rarely, perhaps once every four months. He uses medications to achieve an erection, but the medications are not working as well as expected.

[120] Mr. Osmani described how his injury and, more generally, his treatment at USRL has impacted his life. He explained that his enjoyment of life is gone and he is now a different person. He is no longer an engaged and happy father and husband. He suffers from anxiety, low self-esteem, panic and depression. He often has difficulty sleeping and has undergone testing at a sleep clinic. Mr. Osmani described the stress that was occasioned to his marriage and related how he went to see a psychologist for marriage counselling. He and his wife have discussed divorce on many occasions.

[121] Mr. Osmani also described how, prior to the surgery, he had become suicidal. He related an incident where he had decided to take his life by drowning himself at Niagara Falls. At the time, he was staying with a friend, Ms. Lucia Laposta. She became concerned over his well-being and contacted police who attended to perform a wellness check. The police listened to his story and then asked whether he wanted Mr. De-Almeida arrested. Mr. Osmani explained that as a father and knowing Mr. De-Almeida’s sons, he did not want Mr. De-Almeida arrested in front of his children.

[122] Mr. Osmani shared his suicidal thoughts with his current family doctor, Dr. Chow and he was prescribed various medications for depression, stress and panic. He was also referred to a psychiatrist, Dr. Memarpour. He had one visit with the psychiatrist by telephone on January 14, 2021. Dr. Memarpour opined that Mr. Osmani appeared to suffer from a major depressive disorder with anxious distress and generalized anxiety disorder. He also opined that Mr. Osmani has some elements of post-traumatic stress disorder (“PTSD”).

[123] Mr. Osmani could not explain why Dr. Chow’s and Dr. Memarpour’s note indicate that he denied suicidal ideation. He suggested that it was perhaps an error due to his limited English abilities.

[124] At the time of trial, Mr. Osmani testified that he was no longer taking any medications. He explained that his work permit had expired and as a result he no longer had a Health Card or medical coverage. He explained that he continues to feel anxiety, panic and depression stemming from the events at USRL.

[125] In terms of his current work prospects, Mr. Osmani described how he no longer works in his chosen field and now works as a labourer with his son who is a plumber. He is not a trained plumber and earns less than he used to while at USRL. Mr. Osmani described how he enjoyed his old work and derived satisfaction from it despite the fact that it involved significant physical activity.

Dr. Sandra Marsetti

[126] Dr. Sandra Marsetti was Mr. Osmani’s family physician. She began caring for him on February 14, 2019. On April 13, 2019, Mr. Osmani attended for a visit and reported that he been hit in the scrotum approximately two months prior. Dr. Marsetti examined the testicle and noted that it felt flat and mushy, the sac was fluid filled and the testicle was indistinct. Dr. Marsetti concluded that Mr. Osmani probably had a ruptured testicle. She ordered an ultrasound test in order to determine what was happening with the testicle.

[127] On April 26, 2019, Dr. Marsetti reviewed the ultrasound test results and noted a large hydrocele around the testicle. As she did not have expertise with this type of issue, she referred Mr. Osman to Dr. Elias, a specialist in urology.

[128] On May 9, 2019, Mr. Osmani again attended at Dr. Marsetti’s office. He complained of an injury to his back sustained in a fall at work. He reported that his spine was tingling, and he could not sit much. Dr. Marsetti ordered x-rays and prescribed an anti-inflammatory. She formed the opinion that he had suffered a back strain from the fall.

[129] Mr. Osmani was initially reluctant to contact the WSIB and would not reveal his SIN to Dr. Marsetti. On May 13 or 14, 2019, Dr. Marsetti was involved in filling out a Functional Abilities Form advising Mr. Osmani’s workplace that he would not be able to return to work for “many weeks.”

[130] On May 27, 2019, Mr. Osmani attended for a further visit in relation to back pain. He advised that he had been involved in a car accident that was caused by his inability to move his feet between the pedals quickly enough. Dr. Marsetti noted that the x-rays were negative but expressed the opinion that soft-tissue pain was often an issue that would not reflect on an x-ray.

[131] On June 12, 2019, Mr. Osmani attended for another visit and had Dr. Marsetti fill out a Form 8 for a WSIB claim. During this visit, Mr. Osmani reported that he had pain in his lower back shooting down his leg. He also had an area in the middle of his back with decreased sensation. He was using crutches to get around and could only walk for short periods.

[132] On July 11, 2019, Mr. Osmani returned for a follow up visit. He indicated that he had gone to a rehabilitation clinic. However, by July 16, 2019, Mr. Osmani reported that the symptoms had worsened. He was using two canes to walk and had difficulty putting weight on his right leg. Dr. Marsetti filled out another Functional Abilities Form on this date relating to the injuries suffered in the workplace fall.

[133] In cross-examination, Dr. Marsetti confirmed that during her initial visits with Mr. Osmani in February and March of 2019, he made no mention of any issue regarding his testicle. The first mention of the testicle occurred during a visit on Aril 10, 2019. During this visit, Mr. Osmani described being “accidentally” hit in the testicle, though she explained that he translated these comments from Italian into English.

Dr. Rami Elias

[134] Dr. Rami Elias is a general urologist. Mr. Osmani was referred to him by Dr. Marsetti in May 2019 for a complaint relating to scrotal pain. He met with Mr. Osmani on four occasions and examined him in order to rule out certain causes such a sexually transmitted disease or malignancy. Based on his examination and the results of an ultra-sound, Dr. Elias determined that Mr. Osmani had a minor hydrocele on or around his testicle and that the testicle appeared “normal.” He described a hydrocele as a collection of water that would, in most cases, be painless. He explained that hydroceles have a number of known causes but could also occur randomly without a known cause. He explained that in most cases hydroceles resolve on their own with medical intervention but in serious cases, the fluid could be drained with a needle.

[135] Based on his initial examination, Dr. Elias did not believe that the matter was serious. He prescribed anti-inflammatory medication as well as Gabapentin, but these medications did not reduce Mr. Osmani’s pain. Eventually, he referred Mr. Osmani to Dr. Jarvi.

Dr. Keith Jarvi

[136] Dr. Keith Jarvi is a urologist with a specialty in men’s reproductive medicine. He has approximately 30 years experience in his chosen field, and both teaches and sees patients.

[137] Dr. Jarvi’s first contact with Mr. Osmani was on May 26, 2020. On that date, Mr. Osmani reported that he had suffered a testicular trauma approximately a year and a half before the consultation. He was in severe pain and advised that he could not work or engage in normal activities. He reported swelling that followed the trauma and advised that any jostling or light touch was uncomfortable.

[138] On June 17, 2020, Mr. Osmani saw Dr. Jarvi for a physical investigation. Dr. Jarvi noted that Mr. Osmani’s right testicle was normal, but his left testicle was extremely sensitive to touch and appeared soft, small and felt irregular in the lower part. Dr. Jarvi came to the conclusion that the testicle was no longer functioning, and he further opined that the reported trauma was the likely cause.

[139] Dr. Jarvi decided that a more interventionist treatment was required. A nerve block was applied using a needle. Dr. Jarvi hoped that the nerve block would provide relief from pain. It worked for approximately two hours, after which Mr. Osmani reported a return to baseline pain.

[140] Dr. Jarvi met with Mr. Osmani again on July 21, 2020 to discuss further possible options given that the nerve block had not worked. The options included simply living with the pain, surgically removing nerves around the testicle, or surgically removing both nerves and the testicle. Dr. Jarvi believed that removal of the nerves and testicle had a 90% success rate in terms of eliminating or at least reducing pain.

[141] After considering the options and advice, Mr. Osmani opted to have the testicle removed. Surgery was performed on August 25, 2020, and the testicle was removed.

[142] A follow up visit occurred on September 14, 2020. Mr. Osmani reported swelling and numbness to the left side of his scrotum, though his pain level had improved. Further follow up visits and ultrasound tests were conducted. At a visit that occurred on November 6, 2020, Mr. Osmani reported numbness to the side of his penis, blood in his semen and erectile dysfunction. According to Dr. Jarvi, blood in the semen was potentially related to other issues, though erectile dysfunction was not uncommon after the type of surgery Mr. Osmani had.

[143] In January 2021, Dr. Jarvi referred Mr. Osmani to Dr. Krakowski for an opinion regarding the penile numbness issues. Investigation conducted in May of 2021 revealed that Mr. Osmani’s remaining testicle was working properly. Cialis was prescribed for the erectile dysfunction.

[144] During a further follow up visit on March 28, 2022, Mr. Osmani reported that his pain had not completely resolved, and the numbness continued. Dr. Jarvi explained that while the surgery had not been 100% successful, it was worth doing as it gave Mr. Osmani the benefit of reduced pain. In terms of the remaining pain, Dr. Jarvi opined that it could be managed with oral medications going forward.

[145] In cross-examination, Dr. Jarvi agreed that his diagnosis of a non-functioning testicle was compatible with trauma, but he also agreed that trauma was not the definitive or singular possible cause of the discomfort. Dr. Jarvi was cross-examined on the possibility that an accumulation of fluid known as hydrocele, which was found by Dr. Elias, was related to the pain in Mr. Osmani’s testicle. Dr. Jarvi indicated that he was aware that on November 26, 2019, Dr. Elias had noted a very minimal hydrocele on examination of Mr. Osmani’s testicle. He agreed that it was theoretically possible that an intervening event, such as the hydrocele, could have caused scrotal pain as opposed to the alleged trauma. However, Dr. Jarvi was of the opinion that the fluid relating to the hydrocele was not a cause of pain in this case as there was a clear-cut area of pain on the testicle. Dr. Jarvi explained that unless the hydrocele was the source of the pain, draining it would not help. He noted that draining the hydrocele also entailed a risk of bleeding and infection. Ultimately, Dr. Jarvi was of the opinion that addressing the hydrocele was very unlikely to reduce the pain.

[146] In terms of the necessity of surgery, Dr. Jarvi explained that surgery is viewed as a “last stop” that could only be agreed to by the patient after appropriate consultations. The final decision on surgery was made by Mr. Osmani.

[147] Dr. Jarvi agreed that erectile dysfunction could have many causes unrelated to the trauma or surgery. That said, he maintained that the numbness was likely caused by the surgery.

Other Medical Evidence

[148] On January 14, 2021, Mr. Osmani attended a telephone appointment with the Rapid Access Psychiatry program. The appointment was arranged following a referral by Dr. Maria Chow in November of 2020.

[149] The attending psychiatrist for the telephone appointment was Dr. Memarpour. Mr. Osmani was diagnosed as suffering from a major depressive disorder with anxious distress and a generalized anxiety disorder. Dr. Memarpour also noted elements of PTSD. Mr. Osmani was prescribed an increased dose of medication and referred to the Canadian Mental Health Association for cognitive behavioural therapy.

[150] On January 13, 2021, he was seen at a sleep clinic on referral from Dr. Chow. In a report dated January 19, 2021, Dr. Ranjit diagnosed Mr. Osmani as having sleep apnea.

Alba Zoto

[151] Alba Zoto is an immigration consultant, licensed since 2015. Approximately 80% of her practice involves Temporary Foreign Workers and most of those clients are in the construction industry.

[152] In 2018-2019, she was retained to assist USRL in hiring Mr. Osmani as a Temporary Foreign Worker. She had assisted USRL on a prior application to hire a Temporary Foreign Worker.

[153] Ms. Zoto prepared the Labour Market Impact Application for USRL and Mr. Osmani. On January 28, 2019, Ms. Cunha was advised that the application was approved in relation to Mr. Osmani and USRL. The work permit was issued on February 14, 2019, with an expiry date of February 13, 2021.

[154] In terms of fees, Ms. Zoto agreed that Mr. Osmani paid $3,500 for her services. She did not specifically acknowledge that he also provided painting services worth approximately $2,500. Ms. Zoto explained that a $1,000 fee for the application would have been paid by USRL. She further explained that it was absolutely impermissible for this fee to be passed on to the employee.

[155] On one occasion, Mr. Osmani asked her whether he could quit his job and remain in the country. She explained that his work permit only permitted him to work at USRL and as a result, he could remain in the country while the permit remained valid, but he could not work for anyone else.

[156] Ms. Zoto asked Mr. Osmani why he wanted to quit and he indicated that he had been “touched inappropriately” by another worker. He also used a physical gesture to explain what happened, though at trial Ms. Zoto could not recall the nature of the physical gesture.

[157] Ms. Zoto knew Mr. Koijdeli, who worked in the USRL head office. As a favour to Mr. Osmani, she contacted Mr. Koijdeli to see if she could learn more about what happened to Mr. Osmani. According to Ms. Zoto, a few months later, Mr. Koijdeli reported that the company had looked into the matter but “the stories did not match.”

Redi Osmani

[158] Redi Osmani is Mr. Osmani’s son. Prior to coming to Canada, Redi was in Australia for a period of two years. His father moved to Canada and he followed approximately six months after. His sister and mother later also arrived in Canada.

[159] Redi described his family was very happy once they reunited in Canada. Redi also described how his father’s behaviour began to change once he started working at USRL. He was becoming less patient, more frustrated and “on the edge.” He described how his father was “nervous all the time” and was spending less and less time with the family.

[160] Redi first learned of the injury to his father’s testicle when he accompanied his father to an appointment with Dr. Elias and entered the visiting room with his father. On prior occasions when he had accompanied his father to medical appointments, he waited outside.

[161] Redi also testified about the workplace fall his father suffered. He described how he was home that day and around 3:00 or 4:00 p.m., when he saw Mr. De-Almeida’s sons carrying his father into the home and place him on the couch. His father had his arms around them, and they were supporting his weight. Redi noted that his father was pale and was holding his arm on his forehead. He suggested calling an ambulance, but Mr. De-Almeida’s sons said it was not necessary. Later that evening, Redi helped his father get to the bathroom. He noted that his father could not move on his own. He agreed that he did not call an ambulance himself as he was concerned about his father’s work permit.

[162] Redi was present when Mr. De-Almeida came by to see his father. According to Redi, Mr. De-Almeida told his father that the company would pay him cash while he recovered.

[163] On June 17, 2019, Redi went with his father to meet Ms. Cunha at the USRL offices. He explained he wanted to attend because things were not being done properly and he wanted to take matters in his own hands. He agreed that this discussion was about the workplace fall and no mention was made of the punch to the testicles.

[164] Redi explained that in July 2019, there was a second meeting with Ms. Cunha at the USRL offices. Basil Boutakis and Onofrio Callipo were also present for the initial part of the meeting and then left. After that, Redi and his father talked with Ms. Cunha. His father explained how he had been punched and Ms. Cunha commented that it was just a joke and not serious. Ms. Cunha explained that Mr. De-Almeida was Mr. Osmani’s supervisor and he had to work with him.

[165] According to Redi, before they left this meeting, Ms. Cunha presented a document which listed hours worked by his father. This is when Redi learned that his father was paying $2/hr back to USRL.

[166] Redi also described preparing the resignation letter that his father emailed to Ms. Cunha. He explained that he found a sample letter online and cut and paste it. He further explained that he used a version that was “most pleasing” as he did not want his father to get in trouble.

[167] In cross-examination, Redi was asked about his knowledge of the punch to his father’s testicles. He agreed that in his witness will state, he explained that Mr. De-Almeida stood up before punching his father. He also explained that his father told him that Mr. De-Almeida was making jokes and when Mr. Osmani “replied back”, Mr. De-Almeida hit him in the testicles.

Domenic Panetta

[168] Domenic Panetta is the owner of CPF Paving. His company installs interlock driveways and curbside walks in both residential and municipal locations.

[169] Mr. Panetta confirmed that Mr. Osmani worked for CPF Paving for two periods of time. Initially, he was there around 2017 or 2018. He then returned to CPF Paving about a year later in the spring or summer and stayed until November 2018.

[170] While at CPC Paving, Mr. Osmani worked with Mr. De-Almeida, who essentially ran the company. At some point, Mr. De-Almeida became upset with the pricing on a job and he quit. When he left, he took his sons Brandon and Mark and Mr. Osmani with him.

[171] Mr. Panetta never saw anything untoward happen between Mr. De-Almeida and Mr. Osmani, though he would only see them for short periods of time while bringing them coffee. He never heard any complaints about Mr. De-Almeida’s conduct towards Mr. Osmani.

[172] Mr. Panetta could not recall whether Mr. Osmani had a work permit while at CPF Paving. He could not recall having an agreement with USRL whereby he paid the wages USRL gave to Mr. Osmani. He also could not recall paying for Mr. Osmani’s legal bills or reimbursing Mr. De-Almeida for Mr. Osmani’s legal bills.

[173] Mr. Panetta agreed that USRL hired CPF Paving to perform some subcontracting work. This was done on Mr. De-Almeida’s recommendation.

The Defendants’ Evidence

Onofrio Callipo

[174] Mr. Callipo met Mr. De-Almeida in 2008 or 2009 and was then re-acquainted with him in 2018, when one of his employees, Paul Leal, suggested hiring CPF Paving to perform interlock work.

[175] Mr. Callipo met Mr. Osmani in late summer of 2018. At the time Mr. Osmani was working with CPF Paving which was doing sub-contracting work for USRL. Mr. Callipo recalled that in late August 2018, Mr. De-Almeida asked him to sponsor Mr. Osmani, who he described as “a good worker” and a “family man.” He suggested that Mr. Osmani would obtain a work permit with USRL and would be paid by USRL, but would work for CPF Paving. The plan was that CPF Paving would then cover Mr. Osmani’s wages. This was proposed as a favour to CPF Paving. Mr. Callipo agreed, and Ms. Zoto was contacted and instructed to start the process. While the application was prepared and submitted, this original plan never came to fruition. CPF Paving never employed Mr. Osmani while he was ostensibly working under a permit issued to USRL.

[176] In November or early December 2018, Mr. De-Almeida approached Mr. Callipo and indicated that he was no longer happy working at CPF Paving and wanted to come work for USRL. He wanted to know whether Mr. Callipo would hire him, his two sons and Mr. Osmani. He agreed and hired Mr. De-Almeida as a supervisor or foreman, and his sons and Mr. Osmani as general labourers. In cross-examination, Mr. Callipo agreed that the employment contract and the work permit application listed Mr. Osmani’s job title as a “brick and stone mason” despite the fact that this was not his actual job. He explained that “brick and stone mason” was “just a title.”

[177] Mr. Callipo agreed that from December 2018 until the middle of February 2019, Mr. Osmani was paid in cash. Ms. Cunha would tell him how much Mr. Osmani was owed and either he or his partner would place the cash in an envelope. In cross-examination, Mr. Callipo agreed that he was aware that Ms. Cunha was using an on-line source deduction tool to determine how much Mr. Osmani’s net pay in cash would be. He explained that this was done to be fair to the other employees who had deductions taken out of their gross pay. He agreed that no remittances were made on Mr. Osmani’s behalf. Mr. Callipo also asserted that Mr. Osmani was initially paid $28-$29/hr in cash and then when his work permit arrived, it went up to $37/hr.

[178] Mr. Callipo denied any knowledge of Mr. Osmani being required to “pay for cash”, though he agreed that on occasion Mr. Osmani’s cash wages were given to Mr. De-Almeida and Mr. Leal for delivery to Mr. Osmani. He agreed that USRL had no written authorization permitting this process but maintained that it was not unusual. He explained in the days prior to direct deposit, pay cheques would be distributed by the foreman.

[179] In February 2019, Mr. Osmani received his work permit and was placed on payroll with direct deposit and benefits. Mr. Callipo denied any knowledge of a $2/hr deduction being paid back to USRL in cash by Mr. Osmani. He maintained this position in cross-examination when shown the time sheet printout relating Mr. Osmani for the year 2019 which bears a handwritten notation stating “x2hr - $1,474.00.” He could not explain why that notation appeared on the document but agreed that the printed portion of the document was in the style or format produced by USRL’s computer system. He did not recognize the handwriting and did not believe it was either Basil Boutakis’ or Simone Cunha’s handwriting.

[180] Once the work permit was issued, Mr. Osmani completed an Employment Application and completed training in relation to workplace health and safety. Mr. Callipo states that Mr. Osmani would have been provided with a copy of USRL’s Employee Safety Manual and Employment Policies. The document is written in English and it would have been reviewed with the employee. Mr. Osmani signed a document acknowledging that he received and understood the manual and policies.

[181] In cross-examination, Mr. Callipo was asked about the two versions of the document entitled “Labour Market Impact Assessment – Processing Fee Payment Form.” He claimed to have no knowledge about the form or why a copy of the form appeared to have been given to Mr. De-Almeida. He could not explain why the handwritten notations did not appear on the other version of the document. He speculated that perhaps Mr. De-Almeida asked for the form, and he further noted that it was Ms. Cunha who handled payroll at the office.

[182] Mr. Callipo did not observe anything amiss between Mr. Osmani and Mr. De-Almeida. To him, it seemed like they had a normal working relationship. They were cordial and friendly.

[183] In March or April 2019, Mr. Callipo first learned from Ms. Cunha of issues between Mr. Osmani and Mr. De-Almeida when he was advised that there was name calling and joking going on that Mr. Osmani objected to. Mr. Callipo understood that name calling and joking was fairly typical on construction sites, nonetheless he decided to call Mr. De-Almeida in for a meeting. During this meeting, Mr. De-Almeida was told of the complaint and told to stop. According to Mr. Callipo, they had “no proof” of the name calling so they simply told Mr. De-Almeida that “if he was doing it, he should stop.” Mr. De-Almeida denied any inappropriate name calling and Mr. Callipo did not pursue the matter further.

[184] In cross-examination, Mr. Callipo agreed that he made no inquiries to determine whether the name calling happened only once or “50 times.” He did not know whether USRL conducted any further investigation of the issue. He also explained that “construction talk” was a regular and accepted occurrence between the employees at job sites who would routinely engage in pranks that sometimes got out of hand.

[185] Mr. Callipo confirmed that between January and February 2020, it appeared that Mr. De-Almeda had been separated from Mr. Osmani. He explained that this had been done by Mr. Leal, but he did not know why. He agreed that it was possibly a remedy relating to Mr. De-Almeida’s name calling. He also agreed that the time sheets showed that from late February until the date of the workplace fall in May 2020, Mr. De-Almeida was regularly scheduled with Mr. Osmani. However, Mr. Callipo explained that since he didn’t hear anything further in relation to name calling between Mr. De-Almeida and Mr. Osmani, he assumed that the matter had been resolved.

[186] Mr. Callipo denied any knowledge of the testicle injury and maintained that he first learned of it in November 2020, when he heard that Mr. Osmani had applied to the WSIB for compensation in relation to a “pelvis injury.” More particularly, he denied learning of the testicle injury in December 2018 while at the company Christmas party and explained that if he had learned of it at the time, he would have set up a meeting to address the issue. In cross-examination, Mr. Callipo modified his evidence on this issue and explained that he learned of a punch to the testicles in August or September 2020, but believed that it had happened while Mr. Osmani and Mr. De-Almeida were working at CPF Paving.

[187] While Mr. Callipo agreed that he knew of the testicle injury, he conducted no investigation regarding the circumstances that led to the injury. He did not approach Mr. Osmani to ask what had happened as he received no further complaints about the issue or about Mr. De-Almeida’s behaviour. Mr. Callipo agreed that he permitted Mr. De-Almeida to continue as Mr. Osmani’s supervisor despite his knowledge of the issue between them.

[188] Mr. Callipo agreed that USRL’s policy manual had a section dealing with incidents of workplace violence and harassment. He further agreed that the manual requires USRL to conduct an investigation into allegations of violence. However, he explained that in this case, he was told that the punch to the testicle had occurred at CPF Paving and not USRL.

[189] When asked about the policy manual more generally, Mr. Callipo acknowledged that many of his employees do not speak and/or read English fluently. He explained that the policy manual would be read out in English and translated into a language they understood. Mr. Callipo was also asked about the training done at USRL. He explained that some employees, like Mr. Osmani, worked for a couple months before the training sessions occurred. He also acknowledged that at times employees would be “fed answers” by Ms. Cunha so that they would pass their training courses.

[190] Mr. Callipo explained that the training included a discussion of the workplace violence and harassment policies. Employees who were the subject of violence or harassment were expected to go to either him or Mr. Boutakis. At the start of the work season each year, the employees would gather for a meeting and the various policies and procedures would be explained.

[191] In terms of Mr. Osmani’s fall from the ladder, Mr. Callipo testified that Mr. Machado was the foreman of the job site where the accident occurred, and Mr. Leal was the supervisor. While Mr. De-Almeida acted as a foreman and supervisor at other job sites, his role at the site where the accident occurred was a “regular employee doing regular work.” When confronted with time sheets for the relevant period, Mr. Callipo agreed that it was possible that Mr. De-Almeida was running the site. Mr. Callipo was also shown a WSIB Form 7 dated June 17, 2019, prepared by Ms. Cunha, which lists Mr. De-Almeida as a supervisor. He agreed that perhaps both Mr. Leal and Mr. De-Almeida were acting as supervisors that day. Mr. Callipo explained that the delay in preparing this report was due to the belief that Mr. Osmani was simply planning on returning to work within a week or so of the fall.

[192] Mr. Callipo recounted that Mr. De-Almeida called him around 10:30 or 11:00 a.m. on the day of the accident and told him that Mr. Osmani had fallen off a ladder while doing tuckpointing on an entrance shaft. He was informed that Mr. Osmani landed on his back, but was okay. Mr. De-Almeida also indicated that Mr. Osmani did not want an ambulance.

[193] After speaking to Mr. De-Almeida, Mr. Callipo spoke with Paul Leal who indicated he was on his way to the job site to see how Mr. Osmani was doing. Mr. Leal later reported that Mr. Osmani did not want to go to hospital either by ambulance or by car, he simply wanted to “lie there” and “get his bearings back.”

[194] Mr. Callipo attended at the site around 2:00 or 2:30 p.m. Mr. Osmani was still on the ground. Mark and Brandon De-Almeida were helping him get up and into a truck so he could go home. Paul Leal was present as was his daughter, Stephanie Leal, who was acting as the safety co-ordinator for USRL.

[195] Mr. Osmani looked injured, and his back was hurting. Mr. Callipo told Mr. Osmani that he could stay home for the rest of the week. Mr. Osmani replied that he would need a couple of weeks to see if he could get back to work.

[196] Mr. Callipo was later advised that Mr. Osmani declined an ambulance on more than one occasion, though he agreed that he had no direct knowledge as to whether this was accurate. Mr. Callipo explained that if an employee was unconscious, an ambulance would be called. However, if the employee was conscious, it would be left up to the employee to decide whether an ambulance was needed.

[197] Following the workplace fall, USRL continued to pay Mr. Osmani’s wages. Mr. Callipo believed that Mr. Osmani would be back at work within one or two weeks. However, he was advised by Ms. Cunha that Mr. Osmani was not getting better and was not going to be returning to work any time soon. When it became clear that Mr. Osmani was not prepared to return to work within that timeframe, USRL decided that the WSIB process would be engaged. In June 2019, an application for WSIB was made.

[198] According to Mr. Callipo, the offer to pay the wages was a gesture extended to several employees. USRL did not want the employees to lose their pay. In cross-examination, Mr. Callipo denied that the USRL attempted to leverage Mr. Osmani’s vulnerable status as a Temporary Foreign Worker in order to avoid a WSIB claim. He also denied instructing Mr. De-Almeida to tell Mr. Osmani that the company wanted him to return to work or it would stop paying his wages. Mr. Callipo agreed that the USRL’s time sheets showed Mr. Osmani working for a time period after the fall. He explained that this was done in order to generate a pay cheque, though he further explained that he did not know how their time/payroll system worked. He denied that this was done in order to avoid having a paper trail showing that Mr. Osmani was on informal sick leave.

[199] Mr. Callipo denied any knowledge of Mr. Osmani being told or encouraged not to apply for WSIB by anyone at USRL. Mr. Callipo explained that this would make no sense, as it does not cost him anything when an employee is on WSIB. In cross-examination, Mr. Callipo was asked whether his WSIB premiums would be increased following a claim. He replied, “sometimes they do and sometimes they go down.” While he ultimately agreed that the number of WSIB claims was an issue in his mind, it was not at the forefront. He maintained that it was cheaper for him if Mr. Osmani went on WSIB as he did not have to pay him. He then agreed that it would not be cheaper because the premiums would increase, though not necessarily for a long time.

[200] Mr. Callipo also recalled a meeting with Mr. Osmani, Redi Osmani, Ms. Cunha and Mr. Boutakis in July or August of 2019. He had no recollection of the nature of the conversation and explained that he was only there briefly.

[201] Mr. Callipo and Mr. Osmani exchanged a number of text messages following the accident. They eventually met on August 6, 2019. Mr. Callipo could not recall what was discussed during this meeting, though he agreed that the WSIB claim was a possible topic. He could not recall whether he offered to extend Mr. Osmani’s work permit and place him on small jobs in exchange for Mr. Osmani ending his WSIB claim.

[202] In terms of Mr. Osmani’s return to work, Mr. Callipo understood that Mr. Osmani was only to perform light duties. Mr. Leal was assigned to be the supervisor and would assign the light duties. Mr. Callipo explained that upon return to work, an employee who felt up to the task could do more duties as he or she saw fit. However, USRL would accept an employee’s position that they only wanted to do light duties. Mr. Callipo assumed that his office staff would properly keep the WSIB apprised of any changes in an employee’s status and fitness.

[203] Mr. Callipo was aware that in November 2019, the WSIB was advised that Mr. Osmani had returned to work full-time and that as a result the WSIB stopped paying Mr. Osmani a “top-up” for loss of earnings. Mr. Callipo acknowledged that Mr. Osmani’s return to work lasted only one week and he then returned to part-time hours. He did not have direct knowledge as to why the WSIB was provided with the information suggesting that Mr. Osmani was back at work full-time. He indicated that Ms. Cunha would know.

[204] Mr. Callipo confirmed that upon Mr. Osmani’s return to work, he was scheduled with Mr. De-Almeida less frequently. Mr. Callipo could not confirm the reason behind this and suggested that it was Mr. Leal who did the scheduling.

[205] Mr. Callipo recalled the conversation wherein Mr. Osmani said he was quitting. It was a brief conversation in the parking lot. Mr. Osmani did not give a reason. Mr. Callipo told him to put his resignation in writing so that he could put it with the work permit. To the best of his knowledge the work permit was not cancelled. The benefits continued until July 31, 2020.

[206] In terms of the ROE, Mr. Callipo explained that they had difficulties producing the document given the type of SIN that Mr. Osmani had. While he did not know whether Mr. Osmani had ever asked for his ROE, he maintained that he would have had no objection providing the document earlier. He also explained that Ms. Cunha was on sick leave and another office manager left in March of 2019.

[207] Mr. Callipo was asked about Mr. Osmani’s vacation pay. He explained that Mr. Osmani was entitled to two week’s vacation time after one year. He noted that 10% vacation pay would be added to Mr. Osmani’s pay cheque and if he took his holiday, it would have been already paid in advance. Mr. Callipo did not know whether Mr. Osmani ever took holidays. He also explained that unused holiday time was not carried forward. He noted that this was an issue that Ms. Cunha would know about and would have dealt with.

[208] Mr. Callipo was asked to explain the seniority system at USRL. He explained that a supervisor would be in charge of two or three projects, but each project had a foreman. At times, the supervisor and foreman at a particular site would be the same person, though not invariably. Mr. Callipo also agreed that the hierarchy of employees was reflected in the colour of hardhat worn on a job site, though he explained that oftentimes the employees did not strictly follow the colour code.

[209] With respect to the job site where Mr. Osmani fell from the ladder, Mr. Callipo explained that Paul Leal was the supervisor and Paul Machado was the foreman. While Mr. De-Almeida would act as a supervisor or foreman when he was at the job site, he was essentially a worker as it was not “his” site. In cross-examination, Mr. Callipo was shown time sheets for various employees which showed the location of their assignment. Mr. Callipo agreed that based on the time sheets, it appeared that on some days, Mr. De-Almeida would have been the most senior person on the job site. Nonetheless, he maintained that Mr. Leal would have been the supervisor even though he may not have been at the job site everyday. According to Mr. Callipo, Mr. Leal, “was everywhere.”

Ludgero De-Almeida

[210] Ludgero De-Almeida was employed at USRL from November 2018 until July 2020. Prior to that he worked at CPF Paving from 2016 until he moved to USRL in 2018. At CPF Paving, Mr. De-Almeida “ran the company.”

[211] Mr. De-Almeida met Mr. Osmani in August 2017, when Mr. Osmani asked Mr. Panetta for a job at CPF Paving. They became friends and would see each other socially including at events such as a barbeque.

[212] According to Mr. De-Almeida, he asked Mr. Callipo to obtain a work permit for Mr. Osmani “as a favour” and he agreed. Mr. De-Almeida then had a falling out with Mr. Panetta and he left CPF Paving to join USRL. Mr. De-Almeida brought his sons and Mr. Osmani with him.

[213] Once at USRL, Mr. De-Almeida acted as both a supervisor and a foreman. He was a supervisor on jobs involving interlock or stonework, as this was a skill he had knowledge in. On other jobs, he would act as a foreman, though at times he would also work as a labourer under a foreman.

[214] While Mr. De-Almeida agreed that Mr. Osmani was paid in cash for the initial period of employment at USRL, he denied any involvement in the cash payments and more specifically denied “skimming” from the cash.

[215] Mr. De-Almeida denied hitting Mr. Osmani in the testicles at the Richmond Street job site in December 2018. He maintained that he did not start working at the Richmond Street site until January 2019 and even then, he was only there as a labourer. In cross-examination, he agreed that in his examination for discovery he testified that he “probably” was at the Richmond Street site along with Mr. Osmani in December of 2018. Nonetheless, he maintained that he now recalled only being there in January of 2019.

[216] In further cross-examination, Mr. De-Almeida was asked about an incident that allegedly occurred at CPF Paving which involved him hitting Mr. Osmani in the testicles. He explained that Mr. Osmani would grab him by the shoulders and would squeeze. On the second occasion when this happened, he “flicked” his hand sideways in a “get away” motion and in doing so, he possibly came into contact with Mr. Osmani’s testicles.

[217] Mr. De-Almeida denied any verbal abuse towards Mr. Osmani, though he admitted that he would use phrases such as “stupid Italian” and “stupid Albanian.” The phrases were used rarely and only when Mr. Osmani himself engaged in name calling, using phrases such as “stupid Portuguese” or “stupid Canadian.” Mr. De-Almeida agreed that he used the word “beach” in a text to Mr. Osmani and that it was a misspelled attempt to say “bitch.” He explained that it was “just a saying.” He specifically denied threatening to interfere with Mr. Osmani’s work permit, or using phrases like “next plane you are gone” and “I have you by the balls.”

[218] While Mr. De-Almeida acknowledged throwing a Tim Hortons card towards Mr. Osmani, he explained that he simply threw the card into Mr. Osmani’s vehicle and it landed “under his arms.” Mr. De-Almeida denied any further physical acts towards Mr. Osmani, such as dropping a shovel or flicking a tape measure towards his testicles.

[219] In terms of the renovation work done by Mr. Osmani at Mr. De-Almeida’s home, Mr. De-Almeida explained that when Mr. Osmani learned of Mr. De-Almeida’s plans to renovate the home, he offered to help with tile work and painting as he had done that sort of work while living in Italy.

[220] Mr. Osmani worked at Mr. De-Almeida’s house for approximately five to six days, laying tiles with the assistance of Mr. De-Almeida and his sons. Mr. Osmani never asked to be paid and Mr. De-Almeida never offered. He assumed that Mr. Osmani was helping him in return for his help in getting Mr. Osmani the work permit. Mr. De-Almeida maintained that Mr. Osmani decided to help out. It was simply his choice to help for free.

[221] When directed to the estimated value of the work performed by Mr. Osmani, Mr. De-Almeida explained that the figures appeared inflated. He estimated the value of the work at approximately $3,600 for the tiles and paint.

[222] In relation to the workplace fall, Mr. De-Almeida explained that the accident happened after the morning break which usually occurs at 9:30 a.m. When he arrived on scene, he found Mr. Osmani at a location where he should not have been. He checked Mr. Osmani’s condition and noted no blood. He also noted that Mr. Osmani could move his legs. A number of people present asked Mr. Osmani if he wanted an ambulance and he declined. After approximately 1 to 1 ½ hours Mr. Osmani asked to go home. Mr. De-Almeida went to get Mr. Osmani’s truck and his sons helped Mr. Osmani into the truck. According to Mr. De-Almeida, they left around noon.

[223] Later that day, Mr. De-Almeida went to Mr. Osmani’s home to pick up his sons. He informed Mr. Osmani that Mr. Callipo had decided to pay his wages while he recuperated at home. Mr. Osmani indicated that he just needed a few days to recuperate. There was no discussion of WSIB during this visit.

[224] Mr. De-Almeida denied later telling Mr. Osmani that USRL could not pay him any longer. He explained that he simply contacted Mr. Osmani to check in with him to see how he was doing.

[225] Mr. De-Almeida acknowledged that Mr. Osmani was on light duties when he returned to work. He denied directing Mr. Osmani to use the chipping gun and denied directing him to move bags of cement at the USRL shop during this time period.

[226] According to Mr. De-Almeida, Mr. Osmani told him he was planning on quitting USRL a few days in advance of quitting. Mr. Osmani’s stated reason was that USRL was not planning on renewing his work permit.

[227] Mr. De-Almeida was asked about the recorded conversation between him and Mr. Osmani on September 3, 2019. He claimed to have no knowledge of what Mr. Osmani was referring to during the portion of the call where Mr. Osmani states “you kicked me in my testicle.” When asked why he sighed and laughed during this portion of the call, he explained that he reacted in that manner as he had “no clue” what Mr. Osmani was talking about. Mr. De-Almeida explained that he thought Mr. Osmani’s comments were “a joke” and that he just “went along” with what Mr. Osmani was saying during the call. Mr. De-Almeida denied that he was worried following this call and denied that his repeated attempts thereafter to get in touch with Mr. Osmani were related to an attempt at “damage control.”

[228] Mr. De-Almeida was never disciplined or reprimanded by USRL in relation to any interaction with Mr. Osmani, though he agreed that he was given a verbal warning in April 2019 by Mr. Callipo and Ms. Cunha. The warning related to a complaint about name calling which Mr. De-Almeida described as “ordinary joking around.” Mr. De-Almeida acknowledge that the name calling related to ethnicity, but he explained that this sort of talk was normal on a job site and he was often called names based on his ethnicity as well.

Paul Leal

[229] Paul Leal had been employed with USRL since 1998 and had been a supervisor for approximately six years. In his capacity as supervisor, he would travel to various job sites and instruct the foremen on their tasks. The foreman would then direct the employees.

[230] Mr. Leal met Mr. De-Almeida around 2012. He met Mr. Osmani in 2018 at a job site on the Esplanade in Pickering where CPF Paving was doing subcontracting work for USRL. He had occasion to observe the interactions between Mr. De-Almeida and Mr. Osmani and he felt they were friends and got along well as co-workers. During his observation, he never heard any derogatory language such as “stupid Italian” or “stupid Albanian”, though he agreed that workers would often engage in crude “construction talk.” He noted that Mr. Osmani would engage in “construction talk” as did “everybody.”

[231] Mr. Leal agreed that USRL had policies in place for workplace harassment and violence, though noted that he never read them as his English is only “50-50.”

[232] According to Mr. Leal, while at the CPF Esplanade job site in September 2018, Mr. Osmani approached him and told him that he did not like the way Mr. De-Almeida “plays.” Mr. Osmani also made a gesture mimicking a hit to the testicles. Mr. Leal told Mr. Osmani to tell Mr. De-Almeida to stop. Mr. Leal also told Mr. De-Almeida about the complaint and Mr. De-Almeida explained that he “flicked” Mr. Osmani in response to Mr. Osmani grabbing him by the shoulders. Mr. Leal did not report the incident to the owners of USRL. He did not hear anything further and assumed that the matter had been resolved.

[233] Mr. Leal denied any knowledge of the punch to the testicles that Mr. Osmani suggests occurred at the Richmond Street job site in December 2018. He denied the suggestion that Mr. Osmani specifically told him about the punch during a trip to Oakville.

[234] In terms of the workplace fall on May 8, 2019, Mr. Leal explained that he was at a job site on Sheppard Avenue when he received a call advising that Mr. Osmani had fallen off a ladder. Mr. Leal attended at the Blackthorn site and observed Mr. Osmani laying down on the ground on a steep slope. He offered to call an ambulance, but Mr. Osmani declined indicating that he wanted to rest. Mr. Leal also heard others offer to call an ambulance. Mr. Leal explained that he had taken first aid training and knew to look for signs of injury. He noted that they would not move a person until the paramedics arrived and then qualified the comment by adding “if we need to.” He noted that in this instance, Mr. Osmani did not want paramedics and he was not bleeding, so Mr. Leal simply complied with his wishes.

[235] After 1 to 1 ½ hours on the ground, they arranged for Mr. Osmani to be taken home. Mr. Leal noted that he arrived on the site at approximately 10:45 to 11:00 a.m. and Mr. Osmani was taken home around 1:30 or 2:00 p.m. Mr. Osmani walked to a vehicle with assistance from Mark and Brandon De-Almeida who held his arms. Mr. Osmani was told to stay home and return to work when he felt better.

[236] Mr. Leal was the supervisor for the job site. Mr. De-Almeida was the foreman who reported the fall. Mr. Leal denied that Mr. De-Almeida was the supervisor at the time of the fall. He explained that Mr. De-Almeida and Mr. Machado were both foremen who reported to him. Mr. Leal would travel from job site to job site as the supervisor.

[237] According to Mr. Leal, at the time of the fall, Mr. Osmani was not where he was supposed to be. The fall occurred near a canopy and Mr. Osmani should have only been doing tuckpointing at the entrance to the garage of the building.

[238] In terms of Mr. Osmani’s return to work, Mr. Leal was present at a meeting on September 12, 2019 where the return to work plan was discussed. He understood that Mr. Osmani would be returning to work for half days and on light duties such as sweeping and watching traffic. He never saw Mr. Osmani perform heavy duties contrary to the plan. He denied any knowledge of Mr. Osmani using a chipping gun at the Blackthorn job site or being directed to move bags of cement around the USRL shop. He denied receiving a complaint from Mr. Osmani about the assigned duties.

[239] Mr. Leal was shown a series of text exchanges between himself and Mr. Osmani. He identified several text messages that were work related. He identified photographs of his mother’s home and explained that Mr. Osmani offered to do patch work around the walls. While this was on company time, Mr. Leal explained that he later told Mr. Callipo that this work had been done by Mr. Osmani.

[240] When Mr. Leal’s attention was directed to the photograph sent by Mr. Osmani depicting the area of the surgery, Mr. Leal offered the very helpful suggestion “please shave to be nice…”

[241] Mr. Leal also took objection to the fact that Mr. Osmani had recorded their conversation and offered the thinly veiled promise to “follow up after this.” Despite the obvious context of the call, he explained that his reference to “compensation” during the call was in relation to the fall from the ladder and not to the punch to the testicles. He further explained that any reference to a punch to the testicles related to the earlier incident at CPF Paving and not the later incident alleged to have happened while at USRL. When pressed in cross-examination on the content of this call, Mr. Leal became openly argumentative. Eventually, he agreed that some of the call related to testicle injury but maintained that other portions of the call were about the injury caused by the fall.

[242] Mr. Leal acknowledged that between January 2019 and February 2019, Mr. De-Almeida was separated from Mr. Osmani. He agreed that he assigned employees to work at various locations but explained that it was simply a scheduling matter. He did not intentionally split Mr. De-Almeida and Mr. Osmani.

Paul Machado

[243] Paul Machado was a foreman at USRL, where he had been employed for 26 years. Mr. Machado explained that at USRL a supervisor had seniority over a foreman, though both had control over the workers. He agreed that both Mr. De-Almeida and Mr. Leal were supervisors. He did not know whether Mr. Leal was above Mr. De-Almeida in the USRL hierarchy. He explained that he would always wear a white hardhat. Mr. De-Almeida wore an orange hardhat and the workers wore blue hardhats.

[244] He was the foreman at the Richmond Street job site and was present on the day when Mr. Osmani claims he was punched in the testicles by Mr. De-Almeida.

[245] Mr. Machado denied seeing any punch or hit in any manner. He denied any conversation wherein he asked Mr. Osmani to join his crew in front of Mr. De-Almeida.

[246] He had no concerns about the interactions he observed between Mr. Osmani and Mr. De-Almeida. To the best of his knowledge, they were friends. He never heard any instances of name calling between them nor had he seen Mr. De-Almeida ever hit Mr. Osmani or anyone else. If Mr. Machado had seen anything untoward, he would have addressed it by either speaking with the parties or reporting it to USRL management. He explained that he would have reported Mr. De-Almeida, even though Mr. De-Almeida was a rank above him in the company hierarchy.

[247] Mr. Machado acknowledged that name calling was a regular occurrence on a construction job site, though he denied observing instances of horseplay.

[248] He agreed that he had seen the policy manual for USRL and had his own copy, though he only read “some pages.” He did not read the version that had been translated into Portuguese as he did not have enough time.

Stephanie Leal

[249] Stephanie Leal is Paul Leal’s daughter. She was employed at USRL initially as a labourer and then as the health and safety representative. In this latter capacity, she would make sure that all the employees had proper safety equipment and that they were working in safe conditions. She was also in charge of conducting the required safety inspections on job sites. Ms. Leal had taken training in occupational health and safety as well as first aid.

[250] On May 8, 2019, Ms. Leal was working at the Blackthorn project along with Mr. De-Almeida and his sons, Mark and Brandon. Michael Toste was also present. At around 11:00 -11:30 a.m., Mark De-Almeida received a telephone call from Mr. Osmani indicating that he had fallen from a ladder. She, and other employees, rushed over to check on him. They found Mr. Osmani lying down on a slight hill next to the location where he had been working. Ms. Leal checked Mr. Osmani for obvious signs of injury and asked him to lift his shirt. Her father, Paul Leal, arrived some 20 minutes later. He was the job site supervisor at that location.

[251] According to Ms. Leal, Mr. Osmani did not want an ambulance. He simply wanted to rest. She offered to call an ambulance on more than on occasion and he declined. Ms. Leal explained that in the usual case, unless there was a broken bone or blood, she would comply with the employee’s decision to decline an ambulance. She noted that in this case, she checked Mr. Osmani for signs of blood and/or broken bones and observed none. That said, she agreed that she had no specific training on determining whether a person suffered a broken bone.

[252] Eventually, Mr. Osmani said he just wanted to go home. Mark and Brandon De-Almeida assisted him by the arms, though they were not carrying him. Ms. Leal estimated that Mr. Osmani left the site approximately 1 ½ to 2 hours after the fall.

[253] After Mr. Osmani left the site, Mr. Leal return to the USRL office where she prepared an accident report. Ms. Cunha, the office manager, was present and she “assisted” Ms. Leal in preparing the report. Ms. Leal noted in the report that Mr. Osmani was not following proper procedures that day. She learned from Mr. De-Almeida that Mr. Osmani had been instructed to do tuckpointing but was doing it at the wrong location.

[254] In cross-examination, Ms. Leal was challenged on the accuracy and reliability of the accident report she prepared with Ms. Cunha’s assistance. In particular, she was challenged on certain corrections that appear to have been made on the handwritten report. She agreed that the phrase “Co-worker heard scream” appeared to be crossed out. She initially explained that she must have mis-heard this information. While she agreed that she would have been the sole source of information being provided to Ms. Cunha, who was writing the report, she then denied telling Ms. Cunha that a co-worker heard a scream.

[255] Ms. Leal agreed that the report states Mr. Osmani’s “Mobility was OK” despite the fact that he was carried to a vehicle by Mr. De-Almeida’s sons. When pressed on this issue, she explained that Mr. Osmani was “walking” and did not need a stretcher. She ultimately agreed that it was not accurate to note “Mobility was OK” in the report. When directed to the scratched-out portion of the report that reads “Reza asked if needs” which appears right before the word “ambulance”, Ms. Leal suggested she could not make out the scratched-out words. She also explained that she has trouble reading and writing English.

[256] Ms. Leal could not explain why Mr. Osmani was left on the ground for such a long period of time, though she noted that they initially waited for the supervisor to attend the site. She also explained that Mr. Osmani was “taking a rest” after the fall and she did not want to move him right away. She maintained that it was Mr. Osmani who asked to go home and did not want an ambulance.

Mark De-Almeida

[257] Mark De-Almeida was a labourer at USRL and worked as part of his father’s “crew” along with his brother Brandon and Mr. Osmani. He described his father’s position as “foreman” and explained that this crew worked together 95% of the time. He never observed anything untoward occurring between his father and Mr. Osmani. They appeared to be friends who helped each other out and would visit each others’ homes. He never observed any physical interactions such as a punch to the testicles. He agreed that language referring to ethnicity was used but maintained that it was mutual and said in a joking fashion.

[258] Mark was present on the day Mr. Osmani fell from the ladder. Mr. Osmani called him on his cellphone, and he went over to the location where Mr. Osmani had fallen. Once there, he and others checked Mr. Osmani for injuries and offered to call an ambulance. Mr. Osmani declined.

[259] After no more than one hour, Mr. Osmani indicated that he wanted to go home. Mark and Brandon carried him to his truck. He had his arms around their necks and was walking slowly. They then drove Mr. Osmani home.

[260] Mark recounted events relating to Mr. Osmani’s work at his home. He explained that Mr. Osmani did tile work and painting over four days and that he, his brother and father, were there assisting.

Mikel Koijdeli

[261] Mikel Koijdeli was an office employee at USRL. He too was Albanian and he would speak with Mr. Osmani on occasion, though he did not have extensive involvement with the employees in the field. He recalled a discussion with Mr. Osmani wherein he inquired whether Mr. Osmani might be interested in joining the “interior division” of USRL, doing tiles and repairs. Mr. Osmani was not interested.

[262] He recalled seeing Mr. Osmani and Mr. De-Almeida in the shop. They appeared to have a good relationship and appeared to laugh and have a good time during breaks, though Mr. Koijdeli did not have any significant interactions with them.

[263] He also recalled receiving a call from Ms. Zoto, though according to him Ms. Zoto provided no details regarding Mr. Osmani’s complaints. She merely stated that Mr. Osmani had concerns and that perhaps he could assist by speaking to the office manager. After the call, he raised the issue with Ms. Cunha and later learned that there had been a meeting about Mr. Osmani’s concerns. He denied that Ms. Zoto specified that Mr. Osmani was concerned about “inappropriate touching.” He also denied reporting to Ms. Zoto that the company conducted an investigation and determined that the stories “did not match.”

D. Analysis and Findings

[264] I start this next portion of my reasons with some overall credibility determinations and general findings of fact. I will then turn to an assessment of the specific claims advanced and will make further factual and legal findings as required.

Credibility Findings

[265] Credibility is the key issue in this case. As has been often stated, there is no magic formula to be applied in determining whether a witness is telling the truth. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.

[266] Credibility is to be assessed based on the totality of the evidence before me. I am not to engage in a piecemeal determination of a particular witness’ evidence standing alone without context and without reference to the balance of the evidence. That said, in conducting a credibility analysis, I am permitted to accept some, none or all of a witness’ evidence.

[267] Ultimately, the assessment of credibility is a task guided by common sense and reason. In this regard, I am guided by the following oft-quoted passage from Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, [1951] 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354 (C.A.) at para. 11:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick- minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. [Emphasis added.]

[268] In addition, I note that the credibility findings to be made in this case are set against the civil standard of proof which requires that I be satisfied on a balance of probabilities, see F.H. v. McDougall, 2008 SCC 53. Unlike a criminal case, I need not be ultimately satisfied on the much higher standard of proof beyond a reasonable doubt. Put another way, I need not be sure that a witness is telling the truth, I simply need to conclude that they are probably telling the truth.

[269] Turning to the evidence before me, I find that Mr. Osmani was generally a credible witness. In short, I accept key aspects of his evidence. I find that Mr. Osmani’s evidence was consistent and logical. It was supported in several significant regards by objective corroborating evidence. He had reasonable explanations for aspects of his evidence where he admitted not telling the truth to his doctors.

[270] I find that Mr. Callipo was not honest on certain aspects of his evidence. First, I do not accept his denial of any knowledge regarding the punch to the testicles. I find he was present with Ms. Cunha at the Christmas party when Mr. Osmani reported the incident. In any event, the record amply demonstrates that the incident was well known within USRL and would have been known to Mr. Callipo early on and not much later as he asserts. Second, I find that Mr. Callipo has a selective memory on some issues. For example, while he agreed that he met with Osmani in August of 2019 and acknowledged that the WSIB claim was a possible topic, he claimed to have no recollection of what was actually discussed. Viewed in context, I find this absence of memory to be contrived. That is the meeting where Mr. Osmani was asked to drop his WSIB claim in exchange for light duties and full pay. Similarly, his recollection of the meeting with Mr. De-Almeida in March or April 2019 is also sparse. According to Mr. Callipo, this was simply a brief meeting wherein he told Mr. De-Almeida to quit using any inappropriate language he may have been using. I find that the meeting likely stemmed from Mr. Osmani’s complaints about inappropriate physical contact that were passed on from Ms. Zoto to Mr. Koijdeli. Third, Mr. Callipo’s evidence regarding the minimal impact of a WSIB claim on USRL defies credulity. The evidence very strongly suggests that USRL had a distinct interest in avoiding and/or minimizing the length of a WSIB claim.

[271] I also reject Mr. De-Almeida’s evidence on the key issues. His denial of striking Mr. Osmani in the testicles while at USRL was an obvious attempt to mislead the court. The recorded call with Mr. Osmani effectively amounts to an admission by him in this regard. I readily reject his attempt to explain away the call in his evidence. I also find that he engaged in minimization and denial in relation to the allegations of verbal abuse and other physical acts. As well, he tried to minimize his role within USRL and was flatly contradicted by others on this issue. In short, I find that material aspects of his evidence were contrived to defeat the claim before the court.

[272] Similarly, I reject Mr. Leal’s evidence. He bore an open and distinct animus towards Mr. Osmani and clearly shaded his evidence in favour of USRL and Mr. De-Almeida. He did not give honest and objective evidence. He too was caught by his own words as recorded by Mr. Osmani. His attempts to explain away his comments were nonsensical and illogical.

[273] I further find the evidence of Ms. Leal to be problematic. She was reluctant to admit that the accident report was amended to reflect a false version of events that favoured USRL. The changes to the report are obvious. I reject her evidence on the issue.

Failure to Call Simone Cunha

[274] Before moving on to specific factual findings, I will address Simone Cunha’s absence from the trial. First, apart from a very brief mention in Mr. Callipo’s evidence about not being able to find her, no evidence was presented at trial as to why Ms. Cunha was not called as a witness. Second, Ms. Cunha was a central participant in the unfolding of the events in this action. She was the office manager at USRL and acted as a “go-between” for employees and the owners. She handled human resources matters, including payroll. She assisted Ms. Leal in preparing the accident report relating to Mr. Osmani’s workplace fall. Her name is on many of the documents involved in this action.

[275] In Parris v. Laidley, 2012 ONCA 755, the Court of Appeal discussed the availability of an adverse inference in civil cases and commented:

Drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for calling the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.

[276] In The Law of Evidence in Canada, 6th ed. by Bryant, Lederman and Fuerst, the test for an adverse inference is described as follows at §6:509, p. 437-438:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it.

[277] Based on the authorities, it appears that the following criteria must be satisfied before an adverse inference can be drawn:

a. The witness must have key evidence to provide;

b. There must be no adequate explanation for the failure of the party to call the witness, see Kaytor v. Lion's Driving Range Limited (1962), 1962 CanLII 346 (BC SC), 40 W.W.R. 173 (B.C.S.C.) at p.176; and,

c. The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn, see Lambert v. Quinn (1994), 1994 CanLII 978 (ON CA), 110 D.L.R. (4th) 284 at 287-88 (Ont. C.A.) and Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (C.A.), at para. 158; and

d. An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof, see Dwyer v. Mark II Innovations Ltd. (2006) 2006 CanLII 9406 (ON CA), 208 O.A.C. 305. In other words, the party bearing the onus of proof must first establish that there is a case to meet.

[278] While it is very tempting to draw an adverse inference in the circumstances of this case, I decline to do so. Ultimately, I am not satisfied that she is in the exclusive control of USRL and Mr. De-Almeida. Indeed, I heard no evidence or submissions suggesting that Mr. Osmani was not in a position to obtain her evidence.

[279] That said, while Ms. Cunha was not called as a witness, a number of her utterances and statements were tendered into evidence without objection by either defendant. I turn next to briefly assessing what evidential use can be made of these utterances and statements, which primarily include text message exchanges, the recorded meeting and recorded conversation with Mr. Osmani, as well as the accident report Ms. Cunha prepared along with Ms. Leal.

[280] I am satisfied that while Ms. Cunha’s utterances and statements are presumptively inadmissible hearsay, they are exceptionally admissible for the truth of their contents as party statements made on behalf of USRL. These were utterances made by her as an employee of USRL and were made within the scope of her employment at USRL. As such, they are admissible against USRL as admissions, see R. v. Strand Electric Ltd., 1968 CanLII 421 (ON CA), [1969] 1 O.R. 190-203 (Ont. C.A.), Morrison-Knudsen Co. v. B.C. Hydro and Power Authority (1973), 1973 CanLII 1107 (BC SC), 36 D.L.R. (3d) 95 (B.C.S.C.), The Metropolitan Conference Centre Inc. v. Hunter, 2016 ABCA 83, at para. 42, and Ault v. Canada (Attorney General), 2007 CanLII 55359 (ONSC) at para. 27.

[281] I now turn to my specific findings of fact.

The Relationship between Mr. Osmani and Mr. De-Almeida

[282] I am satisfied that the relationship between Mr. Osmani and Mr. De-Almeida was abusive, though, like many abusive relationships, not exclusively so. When Mr. Osmani first met Mr. De-Almeida, he had no legal status in Canada. He needed work in order to provide for his family and more importantly, he wanted to remain in Canada along with his family. He was new to the country and spoke very little English. He also had limited financial resources. In short, Mr. Osmani was in a vulnerable situation which led to a precarious employment relationship.

[283] I find that Mr. De-Almeida provided an avenue for Mr. Osmani to obtain employment with a view to obtaining some form of legal status in Canada. In this regard, I accept that Mr. De-Almeida took Mr. Osmani “under his wing” and helped him obtain his Temporary Foreign Worker status. He arranged for him to move from CPF Paving to USRL. I also accept that USRL hired him based on Mr. De-Almeida’s recommendation that Mr. Osmani was “good worker” and “family man.” Furthermore, I find that Mr. De-Almeida gave Mr. Osmani occasional gifts for him and his daughter.

[284] While there can be no doubt that Mr. De-Almeida initially helped Mr. Osmani, that assistance came with a duality. Mr. Osmani was subjected to Mr. De-Almeida’s harsh and demeaning conduct. I accept that throughout their relationship, Mr. De-Almeida regularly and routinely used harsh and demeaning language towards Mr. Osmani. I find that he would use phrases like “stupid/fucking Italian” and “stupid/fucking Albanian.” While I also find that Mr. Osmani may have on occasion responded in kind, it was not a response amongst equals. To so find would be to ignore the obvious power imbalance between them.

[285] I also find that Mr. De-Almeida would routinely say things like “I’ve got you by the balls” and “next flight, you are gone.” These were references to Mr. Osmani’s precarious immigration status. Mr. De-Almeida, for whatever reason, seemed to enjoy reminding Mr. Osmani that he had apparent control over his stay in Canada.

[286] In addition, I find that Mr. De-Almeida made incredibly crude comments about Mr. Osmani’s wife, essentially offering to sleep with her in response to being advised that Mr. Osmani was having difficulties with his testicles. The comments are all the more crude when considered in context with the findings I set out below in relation to the strike to the testicles. That said, I stop short of finding that Mr. De-Almeida’s comments regarding “growing up” Mr. Osmani’s daughter were overtly crude or sexual in nature. Understood in context, the comments related to the possibility of Mr. Osmani being removed from Canada and leaving his family behind. In any event, the comments were no doubt unwelcome and were also entirely inappropriate.

[287] The harsh and demeaning language was accompanied by physical acts and threats of physical acts as well. Leaving aside the strike to the testicles, I find that Mr. De-Almeida engaged in “pranks” such as dropping shovels and flicking tape measures towards Mr. Osmani’s testicles. He would also threaten to slap him if he spoke out of turn or objected to matters.

[288] I accept Mr. Osmani’s evidence that on one occasion, Mr. De-Almeida threw a Tim Hortons coffee card at his face when he offered to pay for coffee for the crew. Mr. De-Almeida’s evidence on this issue was contrived. He attempted to minimize his actions by explaining that he essentially tossed the card onto Mr. Osmani’s lap. Moreover, he tried to paint himself as the “good guy” who wanted to spare Mr. Osmani the expense of paying for coffee for the crew. This was a humiliating and demeaning gesture done intentionally and done in front of co-workers.

[289] In his written closing submissions, counsel for Mr. De-Almeida asked rhetorically, “If Mr. Osmani has suffered at the hands of Mr. De-Almeida, why would he want to work for him?” While this question was posed specifically in relation to the recorded call Mr. Osmani had with Mr. De-Almeida, it was an implicit theme of the overarching submission that Mr. Osmani should be disbelieved because he stayed with Mr. De-Almeida, never complained and carried on as though he and Mr. De-Almeida were friends.

[290] In another era, rhetorical questions such as this were often used to discredit victims of sexual assault and domestic violence. Implicit in this type of rhetorical question is a false assumption no “true” victim would remain in a relationship with their abuser. It is a long-discredited myth that no abused person would stay with an abuser.

[291] Mr. Osmani was in a vulnerable position. He initially had no status in Canada and even when he obtained that status, it was conditional on his continued employment at USRL. He could not just walk away from Mr. De-Almeida, who was, from his perspective, in a relative position of power. In the vernacular, he had little option but to “grin and bear it.”

[292] Viewed in context, it is hardly surprising that Mr. Osmani remained entangled with Mr. De-Almeida despite the prolonged abuse. It is also hardly surprising that some of the people who worked at CPF Paving and USRL noted that Mr. De-Almeida and Mr. Osmani appeared to get along in a friendly manner. It would have been in Mr. Osmani’s best interests to keep matters as calm and friendly as possible.

[293] That said, I also find that Mr. Osmani did in fact complain. He complained about the strike to the testicles. He raised concerns about Mr. De-Almeida’s abusive manner. He sought assistance from Ms. Zoto and through her, Mr. Koijdeli.

The Punch to the Testicles

[294] I am satisfied that on December 17 or 18, 2018, Mr. Osmani was punched in the testicles by Mr. De-Almeida. I accept Mr. Osmani’s evidence that this occurred while a number of USRL employees were on break and were sitting together. I find that Mr. De-Almeida became upset or angry during a discussion wherein Mr. Osmani either offered or was asked to work on a different crew. Mr. De-Almeida viewed this as an affront to his authority as the leader of his crew.

[295] I further find that the punch was done with significant force. It caused Mr. Osmani to fall to the ground breathless. It also caused his testicle to swell and left him in significant and long-lasting pain and discomfort. More importantly, I find that the punch ultimately caused the loss of Mr. Osmani’s testicle. I am also satisfied that the loss of the testicle is causally related to Mr. Osmani’s sexual dysfunction and related mental impacts which continue to this day.

[296] Lastly, I find that the punch to the testicle was brought to the attention of Ms. Cunha and Mr. Callipo within days at the USRL Christmas party. It was also brought to the attention of Mr. Leal.

[297] I reach these findings for the following reasons:

a. I accept Mr. Osmani’s evidence that he was punched in the testicles as he described. His evidence on this point was compelling and logical. The injury to his testicle is corroborated by medical evidence. I accept Dr. Jarvi’s evidence that the injury to Mr. Osmani’s testicle is consistent with the version of events he provided. In short, I accept that the punch to the testicles ultimately resulted in the loss of the testicle. The testicle was turned to mush and was no longer functioning. Mr. Osmani was in significant pain for a long period of time.

b. There is no issue that Mr. Osmani had a testicle surgically removed. I accept the medical evidence that the surgery was the final stage of a long course of treatment that included painful nerve block injections and various medications.

c. There is no evidence or even an objectively reasonable suggestion, that something else might have caused the testicle to cease functioning, requiring it to be surgically removed. In this regard, I am not concerned that Dr. Elias initially diagnosed a hydrocele on or around Mr. Osmani’s testicle. I accept Dr. Jarvi’s explanation for why the hydrocele was not the likely cause of the testicular pain.

d. I accept Mr. Osmani’s explanation for why he misled his doctors about the date of the incident. It makes sense. At the time of the incident, Mr. Osmani was working “off the books.” He had no status in Canada and was awaiting his Foreign Temporary Worker permit. He was in an acutely vulnerable position. He needed medical assistance but did not have OHIP coverage. He also did not want to get his employer in trouble. In these circumstances, it is hardly surprising that when asked by his doctors when the injury occurred, he gave a date that corresponded with the issuance of his work permit. In any event, once Mr. Osmani was no longer working for USRL, he gave the correct date to Dr. Jarvi. At that point, the issues that caused him to give an incorrect date had resolved.

e. I am not troubled by the fact that in the September 3, 2020 recorded phone call with Mr. De-Almeida, Mr. Osmani stated “Ya, from February to last year, or February, or March, I no remember…you kick me in my testicle.” This is simply an instance of Mr. Osmani sticking to dates he originally provided to the doctors. In any event, the most noteworthy aspect of this recorded conversation is Mr. De-Almeida’s response. Rather than asking Mr. Osmani what he is referring to, Mr. De-Almeida sighs and then laughs. Viewed in context I find that this is an obvious, albeit tacit admission, by Mr. De-Almeida. On any reasonable analysis, if Mr. Osmani was simply making up the strike to the testicles, one would have expected Mr. De-Almeida’s response to be along the lines of “what the hell are you talking about….”

f. When Mr. Osmani texted the graphic photograph of his surgery to Mr. De-Almeida on October 27, 2020, one might have expected a similar response. Instead, Mr. De-Almeida simply replied, “can you call back later?” I infer that Mr. De-Aleida knew precisely why he was getting these texts. It was because they showed the injury he caused to Mr. Osmani.

g. I am not troubled by Mr. Osmani’s delay in reporting the injury to his family doctor the instant he had his work permit. Mr. Osmani did not see Dr. Marsetti until April 10, 2019, and the work permit was issued in February 2019. The delay in reporting from February until April 2019, does not cause me to question my finding that the incident happened as Mr. Osmani suggested. A mere delay in reporting is a poor indicator of the veracity of a complaint of violence, particularly in circumstances of vulnerability such as those Mr. Osmani found himself in. That said, I note that Mr. Osmani claimed that some of the delay related to the fact that he was embarrassed to show his testicles to his female doctor. As counsel for Mr. De-Almeida fairly notes, Mr. Osmani had already gone to see the same family doctor for hemorrhoids. Despite that, I nonetheless find that he may well have been reluctant to show his swollen testicle to a female doctor even if she had already examined him for hemorrhoids on a prior occasion. There is no set or fixed pattern dictating a person’s comfort level in revealing matters of an intimate nature to a professional such as a doctor.

h. I am not troubled by Dr. Marsetti’s note suggesting that the hit to the testicle was “accidental.” While Mr. Osmani had no recollection of saying that to Dr. Marsetti, it would not be surprising if he did as he was trying to minimize the chances of USRL getting in trouble at the time. On this issue, I note that Mr. Osmani was reluctant to give his SIN number to Dr. Marsetti or even identify his employer.

i. I accept Mr. Osmani’s evidence that he mistakenly used the word “kicked” instead of “punched” when describing what Mr. De-Almeida did to him, both to his doctors and to Mr. De-Almeida and Ms. Cunha in the recorded conversations. There is no issue that Mr. Osmani had very limited English-speaking ability at the time of these statements. I accept his evidence that he used “kick” and “punch” interchangeably. I find that he was always clear in his recollection that it was a punch to the testicle and not an actual kick. In short, I accept his explanation that when he used the word “kick”, he essentially meant “kicked with a fist.”

j. I am not troubled by Ms. Zoto’s evidence that Mr. Osmani described the strike to the testicles as an instance of being “inappropriately touched.” Even assuming this was the description used, it does not cause me to conclude that Mr. Osmani was lying or making up the allegation. He may well have been reluctant to discuss his testicles with his immigration consultant, who happened to be female.

k. I place no weight on the inconsistency between Redi Osmani’s evidence and Mr. Osmani’s evidence on whether Mr. De-Almeida was seated or standing when he struck Mr. Osmani in the testicles. The inconsistency is minor, at its highest.

l. I find that Mr. De-Almeida’s evidence about not being at the Richmond Street job site until January 2019 to be contrived in order to support the position that no incident occurred in December. He was successfully impeached on this issue using his discovery testimony wherein he admitted that he was probably at the job site along with Mr. Osmani in December. I also disregard Mr. Leal’s evidence in this regard. As mentioned, Mr. Leal demonstrated an open animus towards Mr. Osmani. His evidence cannot be safely relied on.

m. I find that Mr. De-Almeida’s suggestion that he may have “flicked” Mr. Osmani in the testicles while working at CPF Paving was a late breaking change in his evidence. It was not mentioned in his evidence in chief. It was not a suggestion put to Mr. Osmani in cross-examination. It was not mentioned during discovery. In short, it was contrived. Interestingly, while Mr. De-Almeida acknowledged that his hand only possibly came into contact with Mr. Osmani’s testicles during this interaction, he essentially sought to blame Mr. Osmani for the incident by suggesting that Mr. Osmani had forcefully grabbed one of his shoulders first and he was simply reacting in self-defence.

n. In any event, even if there was a “flick” to the testicles while at CPF Paving as suggested by Mr. De-Almeida and Mr. Leal, it does not cause me to disbelieve Mr. Osmani on the issue of the testicle injury in December 2018. I accept Mr. Osmani’s evidence that Mr. De-Almeida would often drop shovels and flick a tape measure towards his testicles. As such, I am not surprised that there would have been an earlier incident of Mr. De-Almeida flicking Mr. Osmani’s testicles. For reasons known perhaps only to Mr. De-Almeida, this appears to be something he liked to do.

o. As well, assuming the earlier “flick” to the testicles occurred, it would in no way explain the injury that Mr. Osmani suffered. To repeat, his testicle turned to mush. It was no longer functioning and had to be removed. The suggestion that a passing flick, which according to Mr. De-Almeida only possibly touched Mr. Osmani’s testicles, caused the injury treated by the various doctors is beyond any reasonable realm of belief.

p. I am satisfied that Mr. Osmani reported the strike to his testicles to Ms. Cunha and Mr. Callipo days after the incident at the Christmas party in December 2018. I entirely accept his evidence in this regard, including his evidence that Mr. Callipo responded by stating word to the effect, “why does this fucking guy do this.” I also accept that Mr. Osmani told Mr. Leal about the incident days after it happened. The recorded calls with Mr. Leal and Ms. Cunha confirm that they had knowledge of the strike to the testicles.

The Workplace Fall

[298] I am satisfied that Mr. Osmani suffered a significant injury during a workplace fall. I am further satisfied that USRL engaged in a concerted and prolonged attempt to minimize its exposure to a WSIB claim. It also attempted to craft a false narrative of events in order to minimize the nature of the incident and to shift blame onto Mr. Osmani. Lastly, I am satisfied that the return to work process added further strife to Mr. Osmani’s employment situation and culminated in his departure.

[299] I reach these findings for the following reasons:

a. There is no issue that Mr. Osmani fell from a ladder while doing work at the Blackthorn job site on May 8, 2019. The fall resulted in a significant back injury that legitimately prevented Mr. Osmani from returning to work.

b. I reject Mr. De-Almeida’s attempt to suggest that he was simply a worker at the Blackthorn site. This is an attempt at minimizing responsibility. I find that Mr. De-Almeida was present and was acting in a supervisory capacity towards Mr. Osmani, likely as a foreman. I am satisfied that he directed Mr. Osmani to perform the specific work he was doing when he fell from the ladder.

c. I reject the attempts to suggest that Mr. Osmani was working at the wrong location at the job site when he fell. Specifically, I reject the suggestions by Mr. De-Almeida and Mr. Leal in this regard. These are obvious further attempts at minimizing USRL’s blame for the accident and shifting it onto Mr. Osmani.

d. I find that the accident report was crafted and altered to paint a different picture of the accident. I find that the report initially stated that Mr. Osmani was assigned “to complete outstanding tuckpointing.” The word “outstanding” is scratched out and has been replaced with “other/unneeded.” I find that this alteration was likely made by Ms. Cunha when she was assisting Ms. Leal in creating the report. The purpose of the alteration is obvious. It was done to suggest that Mr. Osmani was engaged in work outside the scope of his instructions at the time of the accident.

e. The accident report also states that Mr. Osmani “without concent [sic]” went to the certain location to perform the tuckpointing. I find that this notation is false. It was included in the report in order support the suggestion that the work Mr. Osmani was performing was unauthorized. Similarly, on the second page of the accident report under the heading “Causes”, a checkmark is placed next the box that states, “Not following appropriate procedures.” This is entirely unsupported by the evidence I accept. It is simply an attempt to blame Mr. Osmani.

f. I find that Mr. Osmani wanted an ambulance, but his requests were ignored. First, I accept Mr. Osmani’s own evidence in this regard. I accept that he asked for an ambulance more than once. He not only wanted an ambulance, but he also actually needed one. On any measure of the evidence, he fell from a significant height, landed on his back and then was on ground for hours. He was accorded minimal if any first aid or other assistance. Second, I am satisfied that Mr. Osmani’s request for an ambulance was initially recorded in the accident report which stated, “Reza asked if he needs ambulance.” That portion of the report is then altered, with the words “Reza asks if he needs” scratched out. The amended version reads “Advised doesn’t need an ambulance, he was OK and didn’t want to hospital.” I find that the report was doctored to conceal the fact that Mr. Osmani wanted an ambulance.

g. I find that as a result of the fall, Mr. Osmani was not mobile. He had to be carried to his vehicle and taken home by Mr. De-Almeida’s sons. Redi Osmani was at home when his father arrived and instantly noted that his father was in significant distress and likely should have been taken to hospital. Amazingly, the accident report states, “mobility was ok, still sore from fall.” The reality is that Mr. Osmani was not mobile. The report is manifestly false. I also find that the witnesses who testified about the incident were all reticent to admit that Mr. Osmani was not mobile. To varying degrees, they attempted to exaggerate the extent of his mobility despite the fact that they all agreed he was essentially carried to his vehicle by two people.

h. I find that USRL came to its conclusion about the accident without ever asking Mr. Osmani what happened. This was done on purpose as Mr. Osmani’s account was not the version of events USRL wanted to memorialize. I find support for this conclusion in the portion of the recorded conversation between Mr. Osmani, his son and Ms. Cunha on June 17, 2019. During this conversation, Ms. Cunha suggests that she is asking for Mr. De-Almeida’s version of events. She also states that she is “gonna keep it very simple in the report” which “is just for internal…” Viewed in context, I accept that Mr. Osmani was being shown the accident report and was objecting to its contents and the fact that it does not reflect his version of events.

i. I find that Mr. Osmani was instructed to not report the accident to the WSIB. I accept his evidence that Mr. De-Almeida told him that USRL could not afford another WSIB claim. This is consistent with USRL’s immediate offer to pay his wages while he remained at home recuperating. I also accept Mr. Osmani’s evidence that he was reluctant to give information to his family doctor out of fear that USRL would get in trouble. This is consistent with the instructions he received from Mr. De-Almeida.

j. I reject Mr. Callipo’s evidence suggesting that it would have been cheaper for him to have Mr. Osmani report the accident to the WSIB as he then would not have paid the wages. While Mr. Callipo appeared reluctant to admit it, I find that the reason behind the offer to pay Mr. Osmani’s wages was the desire to avoid a further WSIB claim which would impact USRL’s rates. I find that Mr. Callipo and USRL hoped that Mr. Osmani would recover quickly so that any wages they paid would have been less than the premium increase they faced for reporting the accident.

k. I find that once it became clear that Mr. Osmani could not quickly return to work, USRL exerted pressure on Mr. Osmani. I accept that Mr. De-Almeida told him that USRL could not just keep paying his wages and suggested that he needed to return to work.

l. I also find that even once Mr. Osmani was on WSIB, USRL engaged in efforts to get him to end his claim early. I accept Mr. Osmani’s account of the discussion he had with Mr. Callipo in August 2019, wherein he was offered light duties and full pay in exchange for dropping the claim. Mr. Callipo’s purported lack of recollection of the details of this discussion is telling.

m. I accept that Mr. Osmani attempted to return to full-time work for one week but could not manage the workload. He returned to part-time work the following week. USRL caused his LOE or loss of earning wage top-up to end, and did not advise the WSIB that he had returned to part-time work thereafter.

n. Lastly, I accept that Mr. Osmani was assigned tasks well beyond the light duties he was supposed to be assigned. I find that these included using the chipping gun, carrying buckets of cement chips, and also moving cement bags at the USRL shop. These tasks were assigned by Mr. De-Almeida likely in an attempt to “call the bluff” on what he perceived to be a slow return to full capacity work on the part of Mr. Osmani.

o. I find that by the time Mr. Osmani returned to work, the workplace environment was poisoned. Mr. Osmani was not supported and he reasonably believed that his health and safety remained at risk. It appears that Mr. Osmani was separated for a period of time from Mr. De-Almeida. While Mr. Leal suggested that this was simply happenstance, I find that it was obvious that Mr. Osmani could not be left under Mr. De-Almeida’s supervision and this is the likely reason for the move. In any event, the separation was short-lived and Mr. Osmani was returned to Mr. De-Almeida’s crew.

p. I accept that Mr. Osmani left his employment at USRL due to a culmination of the abuse he suffered from Mr. De-Almeida and USRL’s failure to substantively do anything about it. The events relating to the WSIB claim would have cemented Mr. Osmani’s view that USRL was not on his side.

q. I reject any suggestion that Mr. Osmani quit his job because USRL was not planning on renewing his work permit. Quite the opposite, Mr. Osmani quit his job despite the fact that he had a year left on his permit and despite the fact that the permit specifically required him to work for USRL.

[300] I turn next to assessing the specific legal claims advanced by Mr. Osmani.

The Torts of Assault and Battery

[301] The tort of battery involves non-consensual physical contact beyond the trivial contact that may be reasonably expected in course of ordinary life, see Cole v. Turner (1704) Holt. K.B. 109, 90 E.R. 958 (N.P.) as cited in Canadian Tort Law, 12th edition, Linden et al., (LexisNexis: Toronto, 2022). The tort is aimed at protecting the autonomy of the individual, see Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 at paras. 96 to 99 and Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417 (C.A.). While the tort may be committed by way of negligent contact, it most often arises in situations of intentional physical contact, see Larin v. Goshen (1974), 1974 CanLII 1334 (NS CA), 56 D.L.R. (3d) 719 at 722 (N.S.C.A.).

[302] That said, an intention to cause injury is not required, see Scalera at paras. 125-126. All that is required is “contact plus something else.” The “something else” means “contact that renders the contact either physically harmful or offensive to a reasonable person’s sense of dignity” see, Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208 at para. 143.

[303] By contrast, the tort of assault arises where a person merely causes another person to apprehend imminent physical contact. As stated in Warman v. Grosvenor, 2008 CanLII 57728 (ON SC), 92 O.R. (3d) 663 (S.C.J.), at paras. 58-59:

Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that conduct never actually occurs: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006), at p. 46.

Conduct that intentionally arouses apprehension of an imminent battery (physical contact) constitutes an assault. Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent: Canadian Tort Law, supra, at p. 47.

[304] While the word “fear” is used in explaining the concept of assault, the actual emotion of fear is not required. An apprehension of unwanted contact will suffice. As pithily stated in Canadian Tort Law, at p. 58:

If a pipsqueak holds up a fist to the heavyweight boxing champion of the world and threatens to knock his block off, the boxer may sue for assault, even though he is not in the least frightened. Tort law protects even the brave from interference with their psychological integrity and security. [Emphasis added.]

[305] Turning to the specific facts of this case, I am amply satisfied that the strike to the testicles satisfies the test for battery. I find that the strike was intentional and delivered with significant force. On the basis of the force used, I infer that the strike was delivered with an intention to cause harm, though not to the extent of the harm that actually ensued. However, the fact that the loss of the testicle and related consequential trauma was not intended, does not affect the extent of Mr. De-Almeida’s liability, see Bettel v. Yim (1978), 1978 CanLII 1580 (ON SC), 20 O.R. (2d) 617 at 628-629 (Ont. Co. Ct.).

[306] In terms of damages, I am guided by the helpful summary of the applicable legal principles set out in D.M. v. W.W., 2013 ONSC 4176 at paras. 121-129:

The plaintiff is entitled to “fair and reasonable” compensation for the non-pecuniary damages that he sustained and will continue to suffer as a result of the defendant’s wrongful conduct. These customarily are set out in one figure encompassing all non-pecuniary damages, “including such factors as pain and suffering, loss of amenities and loss of expectation of life”. See Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at pp. 261-264.

That “one figure” may be augmented in appropriate cases if the circumstances warrant “aggravated damages”; for example, where the defendant’s conduct has been “particularly high-handed or oppressive”, thereby increasing a plaintiff’s “humiliation, anxiety, grief, fear and the like”. Such aggravated damages are compensatory in nature, and “take into account the additional harm caused to the plaintiff’s feelings”. See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paragraph 188.

However, “aggravated damages” usually are not awarded separately or “in addition to” general damages. Rather, general damages normally are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded”. See Norberg v. Wynrib, supra, at paragraph 53, and Doe v. Dell, 2003 CanLII 64220 (ON SC), [2003] O.J. No. 3546 (S.C.J.) at paragraph 279.

Our courts generally have emphasized that the assessment of such non-pecuniary losses is functional; to provide alternative sources of satisfaction and solace, instead of making a futile attempt to put a money value on what has been lost. See Andrews v. Grand & Toy Alberta Ltd., supra, at pp. 261-264, and B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, [2007] N.S.J. No. 506 (C.A.), at paragraph 120-126.

In the context of claims for sexual assault and abuse, where courts recognize that there are “fundamental, although intangible, interests at stake”, this functional approach “takes account of the capacity of the award to provide solace for the victim, to vindicate the victim’s physical autonomy and dignity and, through an award of aggravated damages, to take account of the humiliating and degrading nature of the defendant’s conduct”. This is in addition to “pain, suffering and the loss of enjoyment of life” flowing from the sexual assault. See B.M.G. v. Nova Scotia (Attorney General), supra, at paragraphs 120, 127 and 135.

Courts in this context bear in mind that “a sexual assault is very different from other assaults”. It is more than a simple act of violence; “it is an assault upon human dignity”. See R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at paragraph 165.

Courts also recognize the inherent difficulty of assessing non-pecuniary damages in cases of sexual abuse. See, for example, the following comments of the British Columbia Court of Appeal, in S.Y. v. F.C.G., 1996 CanLII 6597 (BC CA), [1996] B.C.J. No. 1596 (C.A.), at paragraph 55:

What is fair and reasonable compensation for general damages, including aggravated damages, in [such a] case is not easy to say. This is an evolving area of the law. We are just beginning to understand the horrendous impacts of sexual abuse. To assess damages for psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement.

The assessment of damages inherently is a fact-specific exercise, but a non-exhaustive list of factors which may be considered, in fashioning a non-pecuniary award of damages in cases of sexual assault, includes the following:

a) The circumstances of the victim at the time of the events, including factors such as age and vulnerability;

b) The circumstances of the assaults, including their number, frequency and how violent, invasive and degrading they were;

c) The circumstances of the defendant, including age and whether he or she was in a position of trust; and

d) The consequences for the victim of the wrongful behavior, including ongoing psychological injuries.

Numerous decisions have emphasized that the last identified factor, (gravity of damage caused to the particular victim), is by far the most important factor that the court must consider. See, for example, C. (J.C.) v. Keats, 1995 CanLII 5681 (SK QB), [1995] 8 W.W.R. 570 (Sask. Q.B.), and M.A. v. Canada, [2001] S.J. No. 686 (Q.B.), affirmed at [2003] S.J. No. 28 (C.A.)

[307] Applying these principles, I am satisfied that the strike to the testicles was a humiliating and degrading battery inflicted in front of Mr. Osmani’s co-workers. It was a show of force, control and domination by Mr. De-Almeida, who I find simply took objection to Mr. Osmani speaking out of turn.

[308] I am further satisfied that the strike to the testicles ultimately caused the loss of Mr. Osmani’s testicle. I find that the loss of the testicle resulted in medical issues including erectile dysfunction, penile numbness and residual pain that continues to this day. Lastly, I am satisfied that the strike to the testicle and the resulting medical treatments and issues have had a significant impact on Mr. Osmani’s mental health and enjoyment of life, including ongoing sexual relations with his wife. As such, while the battery is not a sexual battery in the most commonly seen sense, I am satisfied that there is an aggravating sexual component to the battery, see Scalera, at para. 27. There can be no issue that the battery and its consequences objectively impacted Mr. Osmani’s sexual integrity. Moreover, the absence of a sexual motivation or gratification on the part of Mr. De-Almeida, does not undermine this finding, see R. v. V.(K.B.), 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857.

[309] Mr. Osmani seeks $100,000 in damages against Mr. De-Almeida. In assessing damages, I have considered the following cases cited by the plaintiff, all of which awarded general damages of approximately $100,000 for significant injuries: Coburn v. Nagra and Lomax, 2001 BCSC 234, Guignard v. Hall, 2013 NBQB 7, and Morris (Guardian ad litem of) v. Gentry, 2005 BCSC 670. While these cases do not specifically relate to testicle injuries, they provide a measure of guidance in relation to significant injuries that resulted in significant impacts on the plaintiffs’ enjoyment of life.

[310] I have also considered the following cases that deal specifically with injuries to testicles: Brain v. Mador 1984 CarswellOnt. 2625 (H.C.J.), a case where the court awarded $10,000 in damages following a negligently performed vasectomy (reduced by $2,500 on appeal), Houkayem v. Michaud, [1989] O.J. No. 765 (H.C.) a case where the court dismissed the action but noted that it would have awarded $20,000 in damages, Ballendine (Guardian ad litem of) v. Dodds, [1999] B.C.J. No. 1386 (S.C.) a case where the trial judge awarded $25,000 to a boy who lost a testicle due to medical negligence, Bolianatz v. Edmonton Police Service, 2002 ABQB 284, where the court dismissed the action but noted that it would have award $15,000 in damages to the plaintiff who lost a portion of a testicle after being kicked by a police officer, Sit v. Trillium Health Centre, 2020 ONSC 2458, where the court found that an award of $45,000 would have been appropriate if liability had been found in a case of an allegedly misdiagnosed testicle injury and, J.N. v. Horton, 2010 ABQB 767, where the court awarded $120,000 in general damages in a case where a police officer kicked the 22-year-old plaintiff in the groin causing significant, debilitating and chronic pain in his testicles thereafter.

[311] Based on all of the above noted facts, legal principles and caselaw, I find that general damages of $100,000 are appropriate. In arriving at this number, I have taken into account the aggravating feature of the sexual nature of the battery. I have also considered that the previous awards set out in the caselaw should be roughly “grossed-up” to account for inflation, see Sit, at para. 234.

[312] Lastly, I turn to punitive damages. I note that the strike to the testicles amounts, at a minimum, to the criminal offence of assault causing bodily harm. Mr. De-Almeida was never charged with any criminal offence in relation to the strike to the testicles. As such, the punitive aspect of damages remains open to consideration. Regardless of the specific corresponding Criminal Code provision violated, the gravamen of conduct is the same, a violent punch to the testicles, resulting in the loss of a testicle with long term physical and mental impacts. The issue is whether this conduct warrants punishment beyond the compensatory aspects of general and aggravated damages.

[313] In my view, punitive damages are warranted in relation to this tort. Mr. De-Almeida’s conduct justly requires denunciation and punishment. I find that punitive damages of $25,000 are warranted.

[314] In terms of the tort of assault, Mr. Osmani argues that during his course of employment, Mr. De-Almeida would routinely and frequently threaten to slap or hit him. These threats occurred throughout their employment at USRL and likely started earlier at CPF Paving.

[315] In considering whether these comments are sufficient to establish the tort of assault, I note that while comments alone are often not sufficient to establish a tort of assault, a context specific approach is required. In this case, the comments made throughout the time at USRL would have occurred after the battery involving the strike to the testicles. In my view, it would have been objectively reasonable for Mr. Osmani to apprehend that these comments might imminently result in a further physical assault. Mr. De-Almeida had already demonstrated a willingness to use significant physical force simply based on Mr. Osmani speaking out of turn while amongst co-workers. Mr. De-Almeida had also engaged in other forms of assaultive behaviour such as throwing a Tim Hortons card at Mr. Osmani, allowing shovels to fall towards his testicles and flicking a tape measure at his testicles. As such, when the comments are viewed in context and against the backdrop of the relationship, I am prepared to find that Mr. Osmani was assaulted by Mr. De-Almeida on numerous occasions. While these assaults did not result in specific physical injuries, they would have formed part of the abusive supervisor-employee relationship and would have contributed to Mr. Osmani’s stress, anxiety and mental suffering.

[316] Mr. Osmani seeks $100,000 in damages for the tort of assault. When I consider the circumstances in which this tort occurred, including the repetitive nature of the assaults and their contribution to the abusive work environment, I find that general damages of $10,000 are appropriate to compensate Mr. Osmani for the harm done. I am not prepared to award separate aggravated or punitive damages. While the repeated assaults are without a doubt abusive, viewed objectively they are not of a magnitude warranting either aggravated or punitive damages.

[317] Mr. Osmani further argues that USRL should be jointly and severally liable for the damages caused by Mr. De-Almeida in relation to the torts of battery and assault. In this regard, he relies on the following legal analysis set out in Blackwater v. Plint, 2005 SCC 58 at para. 20:

Vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong. Having created or enhanced the risk of the wrongful conduct, it is appropriate that the employer or operator of the enterprise be held responsible, even though the wrongful act may be contrary to its desires: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534. The fact that wrongful acts may occur is a cost of business. The imposition of vicarious liability in such circumstances serves the policy ends of providing an adequate remedy to people harmed by an employee and of promoting deterrence. When determining whether vicarious liability should be imposed, the court bases its decision on several factors, which include: (a) the opportunity afforded by the employer’s enterprise for the employee to abuse his power; (b) the extent to which the wrongful act furthered the employer’s interests; (c) the extent to which the employment situation created intimacy or other conditions conducive to the wrongful act; (d) the extent of power conferred on the employee in relation to the victim; and (e) the vulnerability of potential victims.

[318] USRL resists any finding of vicarious liability, relying on Jacobi v. Griffiths, 1999 CanLII 693 (SCC), [1999] 2 S.C.R. 570, and Ivic v. Griffiths, 2017 ONCA 446 which stand for the general proposition that the mere provision of an opportunity to commit an intentional tort is not a sufficient basis for the imposition of vicarious liability.

[319] In determining this issue, I am guided by the following principles set out in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 at para. 41-42:

Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:

(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”.

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

(3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;

(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d) the extent of power conferred on the employee in relation to the victim;

(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. The policy considerations that justify imposition of vicarious liability for an employee’s sexual misconduct are unlikely to be satisfied by incidental considerations of time and place. For example, an incidental or random attack by an employee that merely happens to take place on the employer’s premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created. Nor is the imposition of liability likely to have a significant deterrent effect; short of closing the premises or discharging all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used in negligence law the test. What is required is a material increase in the risk as a consequence of the employer’s enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability.

[320] In this case, I am satisfied that an application of the Bazley criteria warrants a finding of vicarious liability on the USRL for the tortious battery and assaults by Mr. De-Almeida. Mr. De-Almeida was Mr. Osmani’s direct supervisor at USRL. The hierarchy at USRL placed Mr. Osmani in Mr. De-Almeida’s crew and he was subject to Mr. De-Almeida’s direction and control in relation to duties performed for USRL. The battery occurred at a meeting where work assignments were being discussed. During this meeting, Mr. Osmani was struck in the testicles when he offered to join another work crew for the benefit of USRL. He was struck by his immediate supervisor in front of other co-workers and supervisors. This is not simply an incident where the battery simply took place at a USRL workplace. USRL created a scenario where Mr. Osmani was in the direct control of Mr. De-Almeida who was tasked with supervising and directing work placements for his “crew” on behalf of USRL.

[321] I also find that USRL is vicariously liable for the tort of assault. I note that the battery came to USRL’s attention in December of 2018. In March of 2019, USRL met with Mr. De-Almeida and told him to stop what he was doing, “if he was doing” anything. I find that assaultive incidents continued at USRL after the point in time that USRL was aware that Mr. De-Almeida was being abusive to Mr. Osmani. As I will discuss below, USRL did precious little to investigate the incidents or prevent their recurrence. The incidents occurred during the course of Mr. De-Almeida’s direct supervision of Mr. Osmani at the behest of USRL. Taken together, these facts support a finding of vicarious liability for assault.

[322] Lastly, while I have found USRL vicariously liable for the torts of assault and battery, that finding does not automatically apply to the punitive damages I have awarded in relation to the battery. In this regard, I am guided by comments of McLachlin C.JC., in Blackwater, at para. 21, where she explains that in cases of vicarious liability, punitive damages cannot be awarded against the vicariously liable party absent specific reprehensible conduct on the part of that party, see also Boucher, at para. 82.

[323] In this case, apart from the facts that support a finding of vicarious liability, USRL did not engage in any specific reprehensible conduct in relation to the actual commission of the battery. While USRL’s conduct once it learned of the battery on Mr. Osmani, raises issues which I address in discussing the Human Rights Code and constructive dismissal claims, I am not prepared to find that this conduct rises to the level required by the case law.

[324] As a result, the award of punitive damages on the tort of battery is against Mr. De-Almeida only.

The Tort of Intentional Infliction of Mental Suffering

[325] Mr. Osmani seeks $100,000 in damages against each Mr. De-Almeida and USRL in relation to the tort of Intentional Infliction of Mental Suffering (“IIMS”). As set out in Boucher v. Wal-Mart Canada Inc., 2014 ONCA 419 at para. 41 and Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), the tort of IIMS has three elements:

a. Conduct that is flagrant and outrageous;

b. Calculated to produce harm; and,

c. Resulting in a visible and provable illness.

[326] I note at the outset that in the employment context, the negligent infliction of mental suffering is not an available tort, see Piresferreira v. Ayotte, 2010 ONCA 384 at para. 63. In reaching this conclusion, the court noted the established principles of employment law already provide a framework for determining these types of damages. As Juriansz J.A. explained at para. 61:

In a case in which the employer’s allegedly tortious behaviour includes the termination of the employee, compensation for mental distress is available under the framework the Supreme Court has set out in Honda. In a case in which the employer does not terminate the employee, the employee who is caused mental distress by the employer’s abusive conduct can claim constructive dismissal and still have recourse to damages under the Honda framework. Recognizing the tort in the employment relationship would overtake and supplant that framework and all of the employment law jurisprudence from which it evolved. In other words, in the dismissal context, the law already provides a remedy in respect of the loss complained of here. The recognition of the tort is not necessary.

[327] Starting with the conduct, as indicated I find that Mr. De-Almeida was an abusive supervisor, who not only physically battered Mr. Osmani, but also engaged in repeated verbal abuse consisting of assaultive threats, demeaning and humiliating comments directed at Mr. Osmani’s immigration status, his abilities to perform the job at proper capacity, and his sexual relationship with his wife following the injury inflicted on his testicle. Viewed in the context of a supervisor-employee relationship where the employee has the added vulnerability of being a Temporary Foreign Worker, I am readily satisfied that the requirement of flagrant and outrageous conduct is established.

[328] In terms of the second element of the tort of IIMS, Mr. Osmani submits that Mr. De-Almeida’s conduct was so extreme and callous that it demonstrates a reckless and wanton disregard for Mr. Osmani’s heath.

[329] In Prinzo, at para. 61, Weiler J.A. held that in order for this element of the test to be satisfied, the “actor must desire to produce the consequences that follow, or the consequences must be known by the actor to be substantially certain to follow.”

[330] An objective level of recklessness is not sufficient to make out this element. The test is subjective. As Juriansz J.A. explains in Piresferreira, at paras. 75-76:

“Recklessness” is a flexible term capable of different meanings in different contexts. As I read it, Correia indicates that in the context of the employment relationship, recklessness should be understood as proceeding in the face of subjective awareness that harm of the kind that resulted was substantially certain to follow. An objective approach to recklessness that considers whether a reasonable person would know that the harm was foreseeable or likely to result seems more consonant with negligence than with an intentional tort. Intentional torts provide remedies for advertent behaviour, rather than inadvertent behaviour. The law treats intentional torts more severely, for example by not limiting the scope of damages in the same way as in a negligence case. The test stated in Prinzo and reaffirmed in Correia maintains the distinction between intentional torts and negligence. As noted Weiler J.A. said in Prinzo that the “consequences must be known by the actor to be substantially certain to follow” (emphasis added).

I have already rejected the recognition of the tort of negligent infliction of mental suffering in an employment relationship. Accepting an objective sense of “recklessness” dependent on whether the harm ultimately suffered was foreseeable or likely to result should be rejected for the same reasons. Essentially, permitting liability on such a reduced standard would unduly interfere with the settled principles of employment law.

[331] The test for this element of the tort is “necessarily high” and requires evidence beyond objective foreseeability or reckless disregard, see Colistro v. Tbaytel, 2019 ONCA 197 at paras. 26-27. In addition, the test also requires a subjective intention to produce the kind of harm that was suffered of knowledge that it is substantially certain to follow, see Piresferreira, at para. 78.

[332] In assessing the evidence on this element, I find that Mr. Osmani has fallen short of establishing that Mr. De-Almeida subjectively intended to cause the type of harm suffered by Mr. Osmani or knew that it was almost certain to occur.

[333] There is no issue that Mr. De-Almeida was an abusive boss who engaged in a series of demeaning and humiliating acts against Mr. Osmani. That said, there is no evidence in this case, that Mr. De-Almeida engaged in the conduct in order to cause Mr. Osmani harm so that he would quit. This is not like the scenario in Boucher, where the supervisor engaged in unrelenting abusive conduct specifically geared towards getting Ms. Boucher to quit. As Laskin J.A., writing for the majority, explained at para. 51:

Pinnock intended to produce the harm that eventually occurred. He wanted to get Boucher to resign. To do so, he wanted to cause her so much emotional distress or mental anguish that she would have no alternative but to quit her job.

[334] In Boucher, the court inferred subjective knowledge on the basis of the supervisor’s stated motive of wanting to force the employee to quit. No such motive arises in this case.

[335] That said, I must nonetheless consider whether the balance of the evidence otherwise supports an inference that Mr. De-Almeida had the requisite degree of knowledge of the consequences of his lengthy course of conduct.

[336] On this issue, I note that in his written submissions, Mr. Osmani places significant weight on the physical act of battery in support of the tort of IIMS. While I am satisfied that the battery caused both physical and mental harm to Mr. Osmani, I am not prepared to find that it was caused with an intention to cause the kind of mental impacts it contributed to, namely depression, anxiety and related PTSD symptoms, or with a knowledge that these were almost certainly to occur as a result.

[337] When I turn to the balance of the conduct, I find that this is not a case where the impact of the behaviour on Mr. Osmani’s physical and mental well being would have been well known to Mr. De-Almeida. This is unlike the scenario in Prinzo where the trial judge found that the defendants were “well aware of the physical and emotional health of the plaintiff and would realize the detrimental effect their harassment would have on the plaintiff and yet they persisted [in] such harassment with almost sadistic resolve.”

[338] The impact of Mr. De-Almeida’s conduct on Mr. Osmani was not so obvious while he was at USRL. While it is true that Mr. Osmani showed emotions in response to specific instances of Mr. De-Almeida’s conduct, I find that Mr. Osmani did not reveal the full extent of the impact while he remained at USRL. He had good reason not to do so. He was beholden to Mr. De-Almeida and to his job at USRL and likely would not have wanted to reveal the true and full extent of the impact of Mr. De-Almeida’s behaviour at the time. This does not diminish the fact that the impact was extensive, but it limits what I can infer about Mr. De-Almeida’s knowledge of the consequences on Mr. Osmani. In the absence of that inference, it is hard to conclude that by continuing the conduct for a lengthy period of time, Mr. De-Almeida intended to cause the specific type of consequences or knew that they were almost certain to result.

[339] As well, as indicated much earlier in these reasons, there was a duality to Mr. De-Almeida’s conduct towards Mr. Osmani. While he was an abusive boss, he was not exclusively so. He bought Mr. Osmani and his daughter gifts. He helped him get his work permit. He took him along with sons from CPF Paving to USRL a move which, on its face, appeared to be step up. On occasions they socialized and generally appeared to get along as friends.

[340] I note these facts not to excuse Mr. De-Almeida’s conduct towards Mr. Osmani. To repeat, it was abusive. However, when I look at the course of conduct engaged in by Mr. De-Almeida and consider whether I can infer that he intended to cause the illness suffered by Mr. Osmani or infer that he knew that it was almost certain to occur, I conclude that he did not. I find that he engaged in an abusive course of conduct as a matter of course. In short, he was a mean boss prone to humiliating and demeaning conduct to those who work beneath him. He was objectively reckless as to the consequences of his conduct towards Mr. Osmani, but he did not set out to inflict the type and degree of harm that Mr. Osmani suffered as a result of their working relationship, nor did he know that it was almost certain to occur. This finding is fatal to the claim of IIMS.

[341] While unnecessary to do so, I turn to the final element of the tort of IIMS. Mr. Osmani submits that Mr. De-Almeida’s conduct resulted in visible and provable illness which consists of his resultant depression, anxiety, sleeplessness and PTSD symptomology. He argues that the combined effect of the strike to his testicles which resulted in the loss of a testicle, coupled with the lengthy period of abusive conduct that followed caused these various medical conditions. I agree. Based on Mr. Osmani’s direct evidence and additional medical evidence, all of which I accept, I am satisfied that Mr. Osmani suffered “visible and provable” illness as a result of the conduct of Mr. De-Almeida.

[342] In view of my finding on the second element of the tort of IIMS, Mr. Osmani’s claim on this tort is dismissed.

[343] If I am wrong on this finding of IIMS, I would have awarded general damages of $30,000 and no punitive damages. While I accept that Mr. Osmani suffered significant impacts to his mental health and well-being, I find that the bulk of the impact stems from the injury to his testicle and the related consequences. Those injuries are already addressed by way of damages for the tort of battery. In reaching this conclusion, I am not minimizing the lengthy period of abuse that Mr. Osmani was subjected to by his boss. No employee should be subjected to this type of abuse by their boss.

[344] Lastly, for the same reasons provided in relation to the tort of battery and assault, I would have found USRL vicariously liable for this tort as well.

The Tort of Human Trafficking

[345] Mr. Osmani seeks $100,000 in damages against each Mr. De-Almeida and USRL in relation to the statutory tort of human trafficking. He also seeks damages of $16,500, which is the accrued profit to Mr. De-Almeida based on the value of the free labour provided by Mr. Osmani.

[346] As far as I am aware, this is the first trial decision to address this tort.

[347] The tort of human trafficking is established by the Prevention of and Remedies for Human Trafficking Act, 2017, S.O. 2017, c.12 [“PRHTA”]. While human trafficking is most often addressed in the context of the sex trade industry, it is not restricted to the sex trade. It also applies to instances of labour trafficking. This point was made clear when the PRHTA was debated in the legislature. During the second reading of the Bill on March 21, 2017, MLA Mme. Nathalie Des Rosiers, made the following comments:

The bill, as was mentioned, aims both to deter human trafficking of young people to the sex trade or to prostitution, but also to protect people who are being trafficked in what we call labour human trafficking, who are being trafficked into places where their rights will be violated and they won’t be paid and will be made to work for long hours without any protection. Migrant workers are particularly at risk in that context. They may have been lured by promises of big payouts, and arrive in Ontario and are unable to realize that promise and are put in dire circumstances where their right to health and safety is being breached as well as their right to get paid for the work that they have done, and sometimes are being shipped around so that they are unable to escape the trafficker’s grasp.

[348] In a report titled “Human Trafficking Trends in Canada, 2019-2020”, The Canadian Centre to End Human Trafficking notes that the impacts of human trafficking are often visited disproportionately on certain populations. One such population is Temporary Foreign Workers. As the report explains at p. 29:

Low wage migrant workers with temporary immigration status are exposed to heightened levels of workplace abuse and trafficking. Labour migration in Canada is governed by the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Although both programs contain streams for high-skilled and low-skilled occupations, the IMP predominantly enables migration to fill high skilled occupations, whereas the TFWP primarily facilitates migration to fill lower-skilled and low-wage occupations. The two programs are governed with separate rules and requirements. Overall, workers employed in low skilled occupations in the TFWP - including the Caregiver Program, Seasonal Agricultural Worker Human Trafficking Trends in Canada Literature Review: The Impact of Human Trafficking on Vulnerable Communities 28 Program, and the Stream for Low-Wage Positions - are at increased risk for workplace abuse and labour trafficking. At the same time, Temporary Foreign Workers (TFWs) face significant barriers to reporting abuse and exploitation because they lack legal protections that shield most Canadians from abuse. Many TFWs are subject to permits that are tied to one specific employer while in Canada. Workers are understandably afraid to report abuse because their employer can retaliate by letting the work permit expire. This means that if a person is being exploited, they can be led to believe that they must choose between returning to their home country or losing their legal status in Canada. Many TFWs lack economic alternatives in their home countries and are compelled to remain in exploitative work conditions in Canada. Other barriers to getting help include social and geographic isolation, and language barriers that make it difficult to reach TFWs and inform them of their rights. [Citations omitted][^2]

[349] Sections 16 and 17 of the PRHTA provide:

Action

16 (1) A victim of human trafficking may bring an action against any person who engaged in the human trafficking.

Proof of damage not required

(2) The action may be brought without proof of damage.

Standard of proof

(3) Findings of fact in an action under this section shall be made on the balance of probabilities.

Powers of court

17 (1) In an action under section 16, the court may,

(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;

(b) order the defendant to account to the plaintiff for any profits that have accrued to the defendant as a result of the human trafficking;

(c) issue an injunction on such terms and with such conditions as the court determines appropriate in the circumstances; and

(d) make any other order that the court considers reasonable in the circumstances.

Considerations

(2) In awarding damages under clause (1) (a), the court shall have regard to all of the circumstances of the case, including,

(a) any particular vulnerabilities of the plaintiff;

(b) all aspects of the defendant’s conduct; and

(c) the nature of any existing relationship between the plaintiff and the defendant.

Accounting not relevant to damages

(3) The court shall not take into account any order made under clause (1) (b) when awarding damages.

No double compensation

(4) When assessing damages or any other compensation in an action under section 16 respecting conduct that is the subject of another civil proceeding, the court shall take into account any damages or compensation awarded in the other proceeding in respect of the same conduct.

[350] Section 1 of the PRHTA defines “human trafficking” by reference to the related Criminal Code provisions. It states:

“human trafficking” means conduct described in section 279.01, 279.011, 279.02 or 279.03 of the Criminal Code (Canada), taking into account any evidentiary or other rules set out in those sections respecting the determination of the conduct but not requiring a charge or conviction under any of those sections.

[351] The relevant portions of the specified Criminal Code provisions provide as follows:

Trafficking in persons

279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence…

[352] Section 279.011 creates a separate offence with identical elements as s. 279.01 but higher penalties when the person trafficked is under 18 years of age. Section 279.02 then makes it a further offence to “receive a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission” of an offence under ss. 279.01(1) or 279.011(1). Section 279.03 prohibits doing various actions in relation to travel, identification or immigration documents for the purpose of committing or facilitation the s. 279.01 offence.

[353] The section 279.01 and 279.011 offences require proof of two main elements; the conduct and the purpose, see R. v. A.A., 2015 ONCA 558, at para. 79 and R. v. Gallone, 2019 ONCA 663 at para. 17. The conduct element can be established in a number of ways including exercising control, direction or influence over the movements of a person. In Gallone at para. 47, the Court of Appeal offered the following direction on the phrase “exercising control, direction or influence”:

[47] … I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it.

[354] More recently, in R. v. Ochrym, 2021 ONCA 48, the Court of Appeal provided the following additional guidance, albeit in the context of an offence under s. 286.3(1) of the Code:

[30] The statement at para. 47 of Gallone that “[e]xercising influence over a person’s movements means doing anything to affect the person’s movements” cannot be read in isolation. The balance of para. 47 and para. 50, reproduced below, indicate that in considering whether what an accused did amounted to exercising control, direction or influence over the movements of a complainant, regard must be had to the nature of the relationship between the accused and complainant:

…all these residual terms – “exercises control, direction or influence” – evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements. As stated in A Handbook for Criminal Justice Practitioners on Trafficking in Persons, (Ottawa: Department of Justice, 2015), which was developed by the Federal/Provincial/Territorial Working Group on Trafficking in Persons, these residual terms characterize “the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim’s mobility”: at p. 20. In other words, by virtue of the relationship between the accused and the complainant, the accused was in a position or had the ability to control, direct or influence the movements of the complainant. However, as already stated, the terms “control”, “direct” and “influence” involve different degrees of coercion[.]

[355] The purpose element of the s.279.01 and 279.011 offences requires proof that the defendant’s conduct was for the purpose of exploiting or facilitating the exploitation of the person trafficked. In R. v. A.A., at para. 82, Watt J.A. suggests that the purpose element “extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended”.

[356] It is important to note that in order for the offence to be established