Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2018 6 INHOUSE News Roundup Employee who alleged sexual harassment will be intervener at wrongful-dismissal trial A woman who was allegedly sexually harassed by a co-worker — whose employment was subsequently ter- minated and who now claims damages for wrongful dismissal — has been granted intervener status in the upcoming trial, in what may be a first in Canada. In Render v. ThyssenKrupp Elevator, 2018 ONSC 3182, Case Management Master An - drew Graham of Ontario's Superior Court of Justice ruled that an employee who had claimed a co-worker had sexually harassed her can be an intervener at the trial for his wrongful dismissal. "Based on plaintiff's counsel's cross- examination of Ms. [Linda] Vieira on her supporting affidavit, it is clear that not only her credibility but also her integrity will be challenged at the trial of this action," wrote Graham in his decision. "Her interest in both protecting her integrity and in ques - tions of fact and law in common with issues in the action entitle her to bring this motion to intervene." Further, Graham noted, "Her counsel's participation will not unduly delay or prejudice the determination of the rights of the parties." This may be the first time that the target of alleged sexual harassment by a terminat - ed employee has had standing at a wrongful dismissal trial, according to counsel for the intervener and for the defendant in the case, ThyssenKrupp Elevator (Canada) Limited. However, says David Butt of Camden Lane Law Chambers in Toronto, who is rep - resenting the intervener in the case, "it was a classic example of applying established prin- ciples to new fact patterns. There are cer- tainly some helpful principles articulated. "Whether you are a party to the litiga- tion or not, if you do have a very serious interest in the outcome of the litigation, it's appropriate to recognize that serious inter- est" by granting intervener status to an af- fected party," Butt told Legal Feeds. The plaintiff, who had been employed by the defendant, ThyssenKrupp Elevator, for more than 30 years, had his employment terminated for cause in March 2014 as a consequence, according to the defendant, of the plaintiff's actions toward a female co-worker (Vieira). Specifically, he alleg - edly slapped her buttock during the month prior and "placed his face in the area of [her] breasts and pretended to nuzzle into them." Following the incidents, Vieira filed a complaint against the plaintiff, who was then her co-worker, the company conduct - ed an investigation and determined that the plaintiff's conduct warranted dismissal. "ThyssenKrupp is committed to main- taining a harassment-free workplace," ThyssenKrupp's counsel, Alex Sinclair of Johnstone & Cowling LLP in Toronto, told Legal Feeds, adding that the company was gratified by the court's decision and its sup - port of one of its employees, Vieira. "Obviously, the defen- dant believes Ms. Vieira's account of the incident," Sinclair says, "and acted ac- cordingly [by terminating the plaintiff ], but clearly Ms. Vieira took the posi- tion that the plaintiff would be challenging her credibil- ity" and that the court pro- ceedings stood to "have an impact on her reputation." Vieira had expressed "concern about how the plaintiff's position with respect to the circumstances surround - ing the . . . incident will affect his counsel's cross-examination of her." "Insofar as the Plaintiff is concerned, his claim implies I somehow invited and/ or contributed to his assault and sexual ha - rassment of me, and further implies that his conduct, while not acceptable, is not just cause for termination of employment," Vieira said in her written affidavit. "I have serious reservations about how that position will inform his counsel's cross-examination of me as a witness." Vieira also testified: "Something like this stains your reputation and that has been concerning to me over the years because people will shy away from getting close to me [in the workplace]. People dislike me and don't cooperate as much with me . . . " as a re- sult of the "very liked" plaintiff's termination of employment. Graham decided that Vieira met the threshold criteria in rule 13.01(1) in the Rules of Civil Procedure, which defines who may intervene in a civil case, and that she le - gitimately claimed an interest in the subject matter of the proceeding. Her affidavit and cross-examination evidence "supports her contention that her moral integrity will be in issue at trial and that, in the context of her ongoing employment with ThyssenKrupp, both her moral and possibly physical integrity could be affected by the outcome of the trial," Graham wrote in his reasons. The court was careful to structure the nature of the participation in the trial in ac - cordance with the nature of the interests at stake of the intervener, says Butt. Graham was satisfied that Vieira's involvement in the trial and her counsel's "limited participation in the trial" would not delay it or prejudice the inter - ests of its parties. "The court wants to do justice to everyone af- fected but at the same time wants litigation to unfold" as effectively as pos- sible, says Butt, who sees the ruling as part of the "incremental development of established principles" in common law. "It may be important for other people who find themselves in similar situations," he says. "There's been a lot of talk socially regarding the importance of safe workplac- es from a sexual harassment perspective; this situation may speak to that social con- text quite favourably." Sinclair concurs. "The decision . . . may have significant precedential value, particu- larly in the present societal context" of the #MeToo movement, he says. The case is set to go to trial on Jan. 14, says Sinclair. Counsel for the plain - tiff was not available for comment. IH — Elizabeth Raymer The court wants to do justice to everyone affected but at the same time wants litigation to unfold.

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