Protecting vulnerable complainants of sexual harassment during litigation

Tired of talking about COVID-19? We certainly are. In an effort to set the pandemic aside for a moment, in this blog article we are going to revisit an old topic: sexual harassment in the workplace.

As we have written about here and here, since the onset of the #metoo movement, the Ontario justice system has been working to adapt its existing rules to better accommodate sexual harassment cases. Much has been written about the challenges complainants of sexual harassment face in prosecuting their claims (whether civilly or criminally). While it is important not to unduly tip the scales in favour of complainants, it is likewise crucial to remove barriers that may otherwise impede legitimate claims from being adjudicated. In that vein, a recent procedural decision from the Ontario Superior Court demonstrates how creative counsel can act to shield vulnerable parties from preventable harm during the litigation process.

The case in question is Antonopoulos v. The City of Toronto (2020 ONSC 637). It involved a woman who accused a male co-worker of sexual assault (alleged to have occurred in the workplace). Following an investigation, the woman’s employer dismissed her co-worker for cause. The now dismissed co-worker in turn sued the employer for wrongful dismissal and the complainant for defamation.

Before the court could hear the merits of the case, a procedural question arose concerning how evidence should be gathered. As part of the litigation process, parties can ask questions of each other under oath to prepare for a future trial. Furthermore, as noted by the court, “[p]arties to an action have an inherent right to be present during the examination for discovery of other parties…”

Where things become more complicated is when mental health considerations meet traditional court rules. Here, the complainant had been diagnosed with Major Depressive Disorder and Post-Traumatic Stress Disorder following her alleged sexual assault. Consequently, she was concerned how her health may be impacted if forced to sit through questioning in the presence of the man she accused of assault.

The complainant’s legal counsel therefore requested an “exceptional” order from the court: that her accused co-worker (i.e. the plaintiff) be excluded from attending at her oral discovery. To adjudicate this this request, the court was required to balance the complainant’s health concerns with the plaintiff’s presumptive litigation rights.

Ultimately, Master Abrams elected to grant the complainant’s request on the following basis:

The plaintiff submits that he will “not engage in any inappropriate behavior or seek to intimidate [the personal defendant] at her examination for discovery” and I have no reason to doubt that this is so.  However, I do have reason to believe, supported by evidence (including the opinion proffered by the personal defendant’s treating psychologist--borne of multiple sessions deriving from treatment temporally proximate to the interactions on which the personal defendant will be questioned), that the plaintiff’s presence during the personal defendant’s examination for discovery would present a real and substantial probability that intimidation (whether or not intended) is likely to occur.

Having regard to the evidence adduced and the authorities cited…I think it to be in the interests of justice that the plaintiff be excluded.  I am persuaded that the plaintiff’s “presence at [the personal defendant’s] discovery would be traumatizing and could lead to a significant setback in her mental health”.  The personal defendant’s motion is thus granted. [emphasis added]

Master Abrams was careful to note that her ruling “in no way reflect[s] on the strength or weakness of either party’s position in the litigation.” While the plaintiff would not be able to attend the examination of the complainant, his legal counsel would still carry out this role in his absence. Master Abrams also took note of the fact that the plaintiff had access to relevant evidence (such as a transcript of the complainant’s interview taken during the employer’s workplace investigation) that would allow him to properly prepare and instruct his counsel.

Litigation will never be a pleasant experience for any of its participants, complainants of sexual assault included. But to the extent that we can modify the existing process to address the types of systemic problems that so often prevent complainants from pursuing their cases (such as fears of reprisal, personal embarrassment or mental health impacts) our society will be better for it. The Antonopoulos case is therefore an example of how we can improve things, one small step at a time.

This article was originally published on April 15, 2020 on First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.