7 October 2018By Cynthia Spry
The Law Times recently wrote an article about a case in which a woman who alleged she had been assaulted and sexually harassed in the workplace was granted limited intervenor status in the perpetrator’s ensuing wrongful dismissal claim. In case you also read the Law Times article and wanted more detail about the legal basis for the decision, this blog post provides it.
Background: In 2014, the plaintiff’s co-worker (Linda Vieira) filed a complaint alleging that the plaintiff had slapped her buttocks and “placed his face in the area of [her] breasts and pretended to nuzzle into them”. The plaintiff acknowledged that an incident occurred, but said he went to swipe the complainant on her right hip and she turned at the wrong moment. The employer conducted an investigation, and dismissed the plaintiff for cause. The trial was scheduled to proceed in November 2018, and the employer intended to call Ms. Vieira as a witness.
The Motion: Ms. Vieira moved for intervenor status in the action, in reliance on Rule 13.01(1) of the Rules of Civil Procedure. She claimed she had an interest in the subject matter of the proceeding and might be adversely affected by the outcome. She sought limited rights of participation, including that her counsel be permitted to cross-examine the plaintiff on issues regarding Ms. Vieira, object to questions put to Ms. Vieira during cross-examination, make a brief opening statement, and advance her position in closing argument.
The Court Granted Limited Intervenor Status: Rule 13.01(1) states that a non-party may move for leave to intervene where the person claims: (a) an interest in the subject matter of the proceeding (the jurisprudence indicates that this includes an interest in protecting one’s integrity); (b) that the person may be adversely affected by a judgment in the proceeding (which the jurisprudence limits to an adverse effect on the person’s legal rights); or (c) that there exists between the person and one or more of the parties a question of law or fact in common with one or more of the issues in the proceeding.
The court held that, because the language of Rule 13.01(1) is disjunctive, once one of the factors in the rule is satisfied, the court has discretion to add the person as a party. Master Graham held that Ms. Vieira had satisfied at least one factor, as she had a legitimate interest in the subject matter of the proceeding, including the protection of her integrity. The cross-examination of Ms. Vieira by plaintiff’s counsel, both in the manner it was conducted and in the questions posed, were unfair, and appeared intended to suggest that Ms. Vieira had invited the plaintiff’s behaviour. This cross-examination indicated that Ms. Vieira’s moral integrity was at risk in the upcoming trial.
The court also accepted Mr. Vieira’s submission that her physical integrity in the workplace could be at risk, if her version of events was not accepted at trial, or, even accepting her evidence, the court did not uphold the termination for cause. Ms. Vieria therefore required the benefit of her own counsel to protect her against unfair challenges to her integrity, which went beyond the employer’s interest in protecting her credibility.
Master Graham held that, in determining whether to exercise its discretion, a court must consider the nature of the case and the issues which arise, and the likelihood of the applicant being able to make a useful contribution to the resolution of the matter, without causing injustice to the immediate parties. The court acknowledged that the jurisprudence indicates that the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.
The court held it should exercise its discretion to grant intervenor status in this case. Intervention on the limited basis proposed would not delay the commencement of the trial, nor would it lengthen the trial by more than half a day (which did not constitute undue delay). There would be no prejudice to the plaintiff, as Ms. Vieira would be a witness at trial in any event, and the trial was to be conducted by judge alone. The nature of the case and the issues in the action justified intervenor status. Although the burden on Ms. Vieira was a higher one, given that the action was a private dispute, the limited intervention was a reasonable measure to protect her integrity in the context of her continued employment by the defendant. Finally, Ms. Vieria would clearly make a useful contribution to the resolution of the proceeding, because her evidence was essential to the adjudication of the main factual and legal issues in the case.
The Takeaway: A non-party witness may be entitled to limited intervenor status in proceedings where the non-party’s integrity (moral or physical) is threatened. Master Graham was careful to note, however, that this decision is not to be interpreted as providing witnesses generally with the right to intervene and have their own counsel at trial. If Ms. Vieria did not still work for the employer, where she was required to continue to interact with the plaintiff’s former colleagues on a daily basis, the court would not have ruled that her integrity was under sufficient threat to warrant her having her own counsel at trial. The precedential value of this case, particularly in the current climate of the #MeToo movement, remains to be seen.