Written on behalf of Peter McSherry
The Ontario Superior Court has granted a unique right to a woman who had complained of inappropriate touching and sexual harassment.
The female employee had brought the alleged offensive action to the attention of the employer, which, in turn, terminated the employment of the wrongdoer. This person sued the employer for wrongful dismissal damages. The company then requested that the alleged victim testify as a witness of its behalf in the civil case to allow it to prove “just cause” for termination.
It was then that the alleged victim sought leave of the court to have her own legal counsel participate in the hearing on her behalf. This is an unusual request. This is known as an application for intervenor status.
The Legal Test
The court noted that the rule to allow for such status allows for such an order where the integrity of the intervenor be protected. This includes the victim’s moral and physical integrity. The alleged victim had maintained that both would be at risk should her evidence at trial not be accepted for any reason.
The court considered other issues, apart from the above threshold test, namely, whether the requested order would delay or prejudice the trial. It was also noted that her evidence would be useful to the ultimate determination of the case.
As a result, this rare order was allowed. As an intervenor, she was allowed the right of independent counsel, on a limited basis.
Her lawyer was allowed:
1. To cross-examine the plaintiff on matters relating to her personal integrity and reputation;
2. The right to object to questions asked to her in cross-examination;
3. The right to re-examine her following her cross-examination;
4. The right to make a brief opening and submissions in closing, again relating to her integrity and reputation.
The Traditional Views
Likely the suing terminated employee and the employer at last share the same view, namely, that the intervenor order must inevitably slow down the pace of the lawsuit and add to the costs of the action.
This case is useful only to the interests of the alleged victim, to allow for this person to seek protection of her interests and assure that the complaint is presented in as effective a manner as possible. It is a significant decision to allow for such protections to be afforded in this context.
Let Legal Advice be Your Guide
If you have questions about this issue or other similar concerns, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation