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In what appears to be a first in Canada, a female employee who was allegedly sexually harassed by a co-worker (who was terminated as a result of her allegations and who then filed a wrongful dismissal claim) was granted intervener status in the upcoming trial in the matter.

What Happened?

The terminated employee worked for employer, an elevator company, for more than 30 years until he was terminated for cause in March 2014.

The employer claimed that the termination was a result of the employee’s actions towards a female co-worker, who had told the employer that the employee had slapped her buttocks and “placed his face in the areas of [her] breasts and pretended to nuzzle into them.”

The employee admitted that the alleged incident took place while he and the female co-worker were “bantering” but argued that when he “went to swipe her on her right hip” to “please get going” she turned without warning and while he was swinging his arm he accidentally hit her in the buttock.

Following the female co-worker’s complaint, the employer launched a full investigation into the incident and determined that the employee’s conduct warranted a just cause termination.

After the termination, the employee filed a wrongful dismissal claim.

Request for Intervener Status

The female co-worker continued to work for the employer after the employee was fired. After the employee filed his wrongful dismissal claim, she filed a motion seeking an order granting her intervener status on the basis that she had an interest in the proceedings and could be adversely affected by the outcome. The employer supported the female co-worker’s position.

The Law on Requesting Intervener Status

Rule 13.01(1) of the Rules of Civil Procedure provides that:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b)that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

Courts have interpreted rule 13.01(1) in the past, noting, among other things that:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

Courts have also warned that this is an area into which it is best to tread lightly:

In contrast [to constitutional cases], Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. …Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to restrict submissions.

Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated.  In my view, the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.

Issues the Court Considered

In making its decision as to whether or not to grant intervener status, the court considered:

  1. Whether the female co-worker met at least one of the threshold criteria in rule 13.01(1);
  2. If the female co-worker did meet the threshold for bringing her motion, would an order allowing her to intervene unduly delay or prejudice the determination of rights of the parties?
  3. If a leave to intervene would not unduly delay or prejudice the determination of rights of the parties, should the court exercise its discretion to grant leave to intervene, considering all relevant factors including the nature of the case, the issues in the action, the fact that the proceeding is a private dispute, and the likelihood of the female co-worker making “a useful contribution to the resolution of the proceeding” without causing injustice to the parties.

The Decision

Were the threshold criteria met?

The court noted that in its view, a consideration of whether someone meets the criteria in rule 13.01(1) should include a consideration of the person’s integrity.

In this case, the female co-worker had filed an affidavit in support of her position, stating, among other things, that she had been deeply humiliated and degraded by the incident, and that she feared that a decision in favour of the employee in the wrongful dismissal case would result in her feeling fear in the workplace since “there are many long-service male employees who would be aware that non-consensual sexual contact with me would not constitute just cause for dismissal”. She further noted that she wanted to protect her reputation and tell her side of the story. She repeated this in cross-examination at discovery.

The court concluded that the female co-worker did have an interest in the subject matter of the proceeding, noting:

I accept that [the female co-worker’s] 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 [the employer], both her moral and possibly physical integrity could be affected by the outcome of the trial.  The substance of plaintiff’s counsel’s cross-examination of [the female co-worker] on her affidavit reinforces my view in this regard.  Based on [the female co-worker’s] interest in protecting her moral and physical integrity, she clearly has an interest in the subject matter of the proceeding.

The court went on to further say that there was a common question of fact among the female co-worker and both the employee and the employer as to what exactly had transpired during the incident. The female co-worker also has an interest in the legal issue of whether the employee’s alleged conduct was sufficient to warrant the termination of his employment for cause.

The court concluded, on the basis of the above, that the female co-worker had met the threshold criteria in rules 13.01(1)(a) and (c).

Would intervention unduly delay or prejudice the determination of rights of the parties?

The female co-worker sought an order that would allow her to participate in the trial on a limited basis. She proposed that her lawyer have a limited right to cross-examine the employee about issues concerning the female co-worker. She also proposed that her lawyer be permitted a brief opening statement, have the right to object to questions during her cross-examination, and the right to advance her position during closing arguments.

Her lawyer argued that his participation would not lengthen the trial significantly.

The court noted that the true issue here was whether the female co-worker’s intervention on the limited basis proposed would delay the resolution of the action as a whole.

The court concluded that the involvement of the female co-worker and her lawyer would not lengthen the trial by more than half a day, and this additional time did not constitute an undue delay in the determination of rights of the parties.

Other relevant factors

The court noted that the fact that this action is a private dispute between an employee and an employer placed a higher burden on the female co-worker, but did not preclude the granting of intervenor status.

The court found it necessary to go beyond the character of the dispute and to consider whether allowing the female co-worker her own lawyer at trial was a reasonable measure to enable her to protect her integrity in the context of her continued employment with the employer.

The fact that the dispute was a private one did not diminish the importance of the female co-worker’s need or ability to do so.

Likelihood of intervener’s useful contribution to the resolution of the proceeding

The court noted that this is generally a relevant question on most motions to intervene because the proposed intervener typically would not otherwise be involved in the trial. In this case, however, the female co-worker would be a witness whether or not she was granted intervener status.

Since her evidence is essential to the determination of the main issue at trial, and the legal and factual issues of what happened during the incident, the court found that it was “obvious that her contribution will not merely be useful but will be critical to the just resolution of the action.”

Intervener Status Granted, With a Caution

The court granted the female co-worker her requested intervenor status, but was careful to caution that:

This decision to allow [the female co-worker] to intervene in the action is intended to enable her to protect her integrity primarily in the context of her continued employment at [the employer].  My decision is therefore not to be interpreted as providing trial witnesses generally with the right to intervene and have their own counsel at trial.  If [the female co-worker] did not still work for [the employer], where she is required to continue to interact with the [employee’s] former colleagues on a daily basis, I would not have ruled that her integrity was under sufficient threat to warrant her having her own counsel at trial.

If you have questions about harassment in the workplace, wrongful dismissal, or any other employment matter, contact the Mississauga employment lawyers at Campbell Bader LLP. We regularly advise both employers and employees on a wide range of issues that arise at work. Contact us online  or  by  phone  at  905  828  2247  to  schedule  a  consultation.