Court allows victim's legal counsel to participate in wrongful dismissal trial of alleged harasser
Making a complaint of workplace sexual harassment can be daunting. If the actual harassment itself is not bad enough, employees often fear job-based retaliation for speaking out, or that making matters public might undermine their professional reputation.
Take, for example, the case of Linda Vieira (Render v. ThyssenKrupp Elevator). Vieira works for ThyssenKrupp Elevator and in 2014 reported to management that a co-worker had inappropriately touched and sexually harassed her. The co-worker was subsequently fired for cause. But that was not the end of the story.
Vieira’s alleged harasser sued ThyssenKrupp Elevator for wrongful dismissal. That case is still ongoing before the Ontario Superior Court of Justice.
What is unusual about Vieira’s situation is despite the fact that she will be called as a witness for ThyssenKrupp Elevator in the lawsuit, she nevertheless asked the court for permission to have her own lawyer participate in the trial. This is an unusual request. Typically, witnesses (or non-parties generally) are not permitted to have their own lawyers play any active role in a trial.
Vieira asked the court to make an exception in her case. Given her evidence would be central to the trial, she argued her reputation was at stake.
The court allowed Vieira’s request. To our knowledge, this is a novel development in Ontario with respect to the rights of alleged victims of sexual harassment who are not themselves parties to a lawsuit.
The court explained the basis for its decision as follows:
"Based on plaintiff’s counsel’s cross-examination of Ms. 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. Her interest in both protecting her integrity and in questions of fact and law in common with issues in the action entitle her to bring this motion to intervene. Her counsel’s participation will not unduly delay or prejudice the determination of the rights of the parties.
…
"This decision to allow Ms. Vieira to intervene in the action is intended to enable her to protect her integrity primarily in the context of her continued employment at ThyssenKrupp. 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 Ms. Vieira did not still work for ThyssenKrupp, where she is required to continue to interact with the plaintiff’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."
As a consequence of the ruling, the court allowed Vieira to have her own lawyer for the upcoming trial, where counsel will be entitled to:
• Re-examine Vieira following any questioning by her employer’s lawyer related to her reputation and integrity
• Object to any improper questions from her former co-worker’s lawyer during questioning and re-examine Vieira as needed
• Make a brief opening statement at trial to explain his or her role and make closing submissions on any factual and legal issue relating to Vieira’s credibility and integrity.
• Object to any improper questions from her former co-worker’s lawyer during questioning and re-examine Vieira as needed
• Make a brief opening statement at trial to explain his or her role and make closing submissions on any factual and legal issue relating to Vieira’s credibility and integrity.
Lessons learned
The court was clear that its approval for Vieira to use her own lawyer at trial where she is not a party to the action is an anomaly. But for the fact that Vieira still works for ThyssenKrupp Elevator, and her co-worker’s expressed intention to challenge her credibility, the court would not have allowed the request.
That said, employees who find themselves in a similar situation to Vieira should be aware that they may now have new rights to protect their professional reputation if attacked in a court proceeding. As a result, this is a favourable development of the law for individuals and can be used by legal counsel as part of a broader strategy to help protect the rights and interests of complainants of workplace sexual harassment.
For more information see:
• Render v. ThyssenKrupp Elevator, 2018 CarswellOnt 8129 (Ont. S.C.J.).
Andrew Vey is a partner with Vey Willetts LLP, an Ottawa-based employment and labour law boutique providing advice to both employers and employees to help resolve workplace issues. He can be reached at 1-800-296-7989 or [email protected].
