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Granting intervener status in cases of sexual harassment – Victims can be more than just witnesses

intervener statusIn the recent Ontario Superior Court decision Render v. ThyssenKrupp Elevator, Master Andrew Graham found that an employee who claimed that a co-worker sexually harassed her could be granted intervener status at the co-worker’s trial for wrongful dismissal.

In court or tribunal proceedings, an intervener is a party that does not have a direct interest in the proceeding. Nevertheless, their involvement would help reach a determination on the issues.

Pursuant to rule 13.01(1) of the Rules of Civil Procedure, a person who is not a party to a proceeding may move for leave to intervene as an added party if they meet one of the following criteria:

  • They have an interest in the subject matter of the proceeding;
  • The person may be adversely affected by the outcome of the proceeding; or
  • 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.

In Render v. ThyssenKrupp Elevator, the defendant company, ThyssenKrupp, terminated Mark Render for cause due to misconduct involving a female co-worker, Linda Vieira. Specifically, the company alleged that Mr. Render slapped Ms. Vieira’s buttocks and “placed his face in the area of [her] breasts and pretended to nuzzle into them”. Mr. Render claimed that any contact was accidental.

Following Mr. Render’s claim for wrongful dismissal, Ms. Vieira sought to intervene, providing her version of events with her own counsel present, on the basis that her moral and physical integrity could be affected by the judgment. Given that Ms. Vieira wished to continue working with ThyssenKrupp, she was concerned that if her co-workers accepted Mr. Render’s version of events it would undermine her reputation in the workplace. She had already begun to feel stigmatized in the workplace because it was her complaint that led to Mr. Render’s termination. Further, Ms. Vieira wished to ensure that such physical conduct would not be tolerated going forward. She was concerned that if her version of events was not accepted, and the trial court overturned Mr. Render’s termination for cause, her physical integrity may continue to be threatened in the workplace.

Master Graham granted Ms. Vieira standing as an intervener. He found that her 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”. In addition, he found that Ms. Vieira and both parties had a common interest in determining what transpired in the incident with Mr. Render, and whether Mr. Render’s alleged conduct warranted termination for cause.

PH Takeaways

#MeToo movement – Given the #MeToo movement and the increase in allegations of sexual harassment, there may be a corresponding increase in the number of employees who were the targets of alleged sexual harassment being granted standing in related wrongful dismissal trials.

Limited scope of intervener status – Even in cases of sexual harassment where an individual’s integrity is at issue, parties will only be granted intervener status on a limited, narrow basis that does not significantly delay the resolution of the action.

Public vs. private dispute – The fact that a dispute is more private in nature, rather than a broader constitutional dispute affecting the public, does not necessarily mean that intervener status will not be granted.

By Chetan Muram

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Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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