Construction worker, punched in testicles by boss, awarded nearly $300,000 in damages

A pair of boxing gloves. Photo: HR Law Canada/Canva

Editor’s note: This story was updated on Jan. 4, 2022. An earlier version of the story missed $50,000 in human rights damages awarded to the plaintiff.

A worker who was punched in the testicles by his boss has been awarded more than $295,000 in damages by the Ontario Superior Court of Justice.

The assault, which happened in front of a group of co-workers, was so violent that one of his “testicles turned to mush, stopped functioning and was ultimately surgically removed.”

The backstory

Rezart Osmani was hired in December 2018, shortly after he came to Canada from Albania, as an “off the books” labourer with Universal Structural Restorations (USRL). In February 2019, he secured temporary foreign worker status under Canada’s Labour Market Impact Assessment (LMIA) program.

Osmani claimed he was subjected to humiliating, degrading and embarrassing conduct by his supervisor, Ludgero De-Almeida.

“The conduct included derogatory and discriminatory language, profanity and threats related to Mr. Osmani’s immigration status,” the court said.

In addition to the punch, Osmani also suffered injuries when he fell from a ladder at a job site. He claimed that USRL interfered with his ability to obtain workers’ compensation benefits from the WSIB and that, when he returned to work, the conditions were intolerable and resulted in constructive dismissal.

Long list of damages

Osmani sought a range of damages against USRL, including:

  • $28,218.68 in reasonable notice (four months’ pay)
  • $10,736 for unpaid wages
  • $2,821.87 for loss of group health benefits during the notice period (10 per cent of wages)
  • $5,000 for intentional and inordinate delay by USRL in issuing a Record of Employment (ROE)
  • $50,000 in damages for violations of the Ontario Human Rights Code;
  • $100,000 for the tort of human trafficking
  • $500,000 in aggravated damages for the manner of dismissal
  • $1 million due to USRL’s malicious, oppressive and high-handed misconduit

He also sought damages against De-Almeida, including:

  • $100,000 each for the torts of intentional infliction of mental suffering, battery and assault
  • $100,000 for human trafficking
  • $16,500 to account for profits De-Almeida made from human trafficking
  • $150,000 in punitive damages for his malicious, oppressive and high-handed misconduct.

Osmani claimed USRL was vicariously liable for De-Almeida’s activities, and he also sought claims against both defendants of $100,000 for pain and suffering, emotional distress and for loss of enjoyment and life and impairment to relationships and physical ability.

Editor’s note: The ruling in this case is quite lengthy – 140 pages – and HR Law Canada is not covering every aspect of the ruling. For full details, see the full case. (Citation below.)

The employer’s response

The defendants sought a dismissal of all claims, and that Osmani’s account of key events was not sufficiently credible to meet the civil standard of proof. They said he was not being honest about 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,” the court said.

The testicle punch

The alleged assault happened in December 2018. USRL employees had gathered for a morning meeting in a small room on the first floor of the parking lot at a job site, according to Osmani.

During the meeting, a worker asked if Osmani could join his crew to do some parging work. De-Almeida responded by saying “nobody can touch my crew.” When Osmani said he would be happy to go wherever the company needed him, De-Almeida responded by swinging his left first towards his testicles.

“Mr. De-Almeida’s knuckles made contact with Mr. Osmani’s left testicle and Mr. Osmani ended up on the ground breathless,” the court said. “No one reacted or tried to help.”

Osmani was eventually driven home by a company driver, and he did not seek immediate medical attention because he didn’t have a health card. (He was still working “off the books” at this time.)

After trying to manage the pain by popping 10 to 12 Advils per day, he went to see a doctor. Ultimately, a decision was made to remove his left testicle.

The fall from the ladder

On May 8, 2019, Osmani was at a worksite in Toronto. While working on a ladder, he lost his balance and fell to the ground.

He landed primarily on his buttocks and was in serious pain. Osmani testified he laid on the ground from about 10:30 a.m. to 3 p.m. He claimed there was discussion about calling an ambulance, but De-Almeida allegedly said the company could not afford another WSIB claim.

Ultimately, no ambulance was called and Osmani asked to be sent home. He was carried to a car and driven home. On May 14, he went to see his family doctor. She sent him for an X-Ray and filled out a functional abilities form for him 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,” the court said. “He was concerned that Dr. Marsetti might initiate a WSIB claim. He did not want USRL to get in trouble.”

Eventually, though, he decided to file a claim with WSIB with the help of his doctor. In June 2019, he began receiving workers’ compensation benefits.

Around June 11, Simone Cunha, the office manager, had a call with Osmani, he said. She expressed concern about the advice he was getting from his doctor and suggested he go to the emergency department at Sunnybrook hospital to seek an assessment.

During her conversation with him, she advised him to tell the doctors he fell on the stairs at his home, he said.

Osmani returned to work in September 2019 on modified duties, and said De-Almeida would essentially ignore him and not speak to him. By mid-November, they were talking again but he was upset with Osmani for going to the WSIB against his direction. There were numerous additional incidents of poor workplace behaviour.

“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,” the court said.

Eventually, towards the end of Feb. 2020, Osmani quit. He still had one year left on his work permit, meaning leaving USRL meant he couldn’t work under the permit and that he would lose his health-care coverage.

The court’s ruling

The court was satisfied that De-Almeida punched him in the testicles.

“I further find that the punch was done with significant force,” it said. “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.”

It also was satisfied that Osmani fell from a ladder and suffered a significant injury.

“I am further satisfied that USRL engaged in a concerted and prolonged attempt to minimize its exposure to a WSIB claim,” it said.

“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.”

It awarded the following damages:

  • $100,000 for general and aggravated damages for battery, jointly and severally between USRL and De-Almeida
  • $25,000 for battery against De-Almeida alone
  • $10,000 for general damages for assault, jointly and severally between USRL and De-Almeida
  • $4,364.70 for wrongful dismissal (four months’ notice)
  • $75,000 in aggravated or moral damages
  • $25,000 in punitive damages
  • $5,794 in unpaid wages
  • $50,000 in damages against USRL for violations of the human rights code.

It dismissed his claims for damages for mental suffering; human trafficking; late ROE issuance; and unpaid vacation pay.

It awarded costs to Osmani.

For more information, see Osmani v. Universal Structural Restorations Ltd., 2022 ONSC 6979 (CanLII)

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