COURT FILE NO.: CV-14-507385

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mark Render v. ThyssenKrupp Elevator (Canada) Limited

BEFORE: MASTER GRAHAM HEARD: April 20, 2018

COUNSEL: M. Fisher for the plaintiff

A. Sinclair for the defendant

D. Butt for the proposed intervener Linda Vieira (moving party)

REASONS FOR DECISION

(Motion for leave to be added as an intervener)

[1] The plaintiff worked for the defendant ThyssenKrupp Elevator (Canada) Limited (“ThyssenKrupp”) for over 30 years until March 9, 2014, when his employment was terminated for cause. He now claims damages for wrongful termination of his employment.

[2] The defendant pleads that the termination was a consequence of the plaintiff’s actions towards a female co-worker, specifically, that on February 28, 2014, he slapped her buttocks and also “placed his face in the area of [her] breasts and pretended to nuzzle into them”. The plaintiff acknowledges that an incident occurred while he and the co-worker were bantering but pleads that when he “went to swipe her on her right hip meaning please get along . . . the female employee turned without warning while he was in the act of swinging his arm, and admittedly his hand hit her on the left buttock”.

[3] It is common ground that the plaintiff’s female co-worker referred to in the pleadings is Linda Vieira, the moving party on this motion. Subsequent to the incident, Ms. Vieira filed a complaint. The defendant conducted an investigation and ultimately determined that the plaintiff’s conduct warranted the termination of his employment. The defendant will call Ms. Vieira as a witness at trial. Ms. Vieira is still employed at ThyssenKrupp.

[4] Ms. Vieira now moves for an order granting her intervener status in the action on the basis that she has an interest in its subject matter and that she may be adversely affected by the outcome. The defendant employer supports her motion and the plaintiff opposes it.

[5] The pre-trial conference in this action is scheduled to proceed on September 28, 2018 and the trial, by judge alone, is scheduled to proceed on November 26, 2018.

The law

[6] Ms. Vieira moves under rule 13.01(1) of the Rules of Civil Procedure:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b)that the person may be adversely affected by a judgment in the proceeding; or

(c) that 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.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[7] In considering the application of rule 13.01(1), Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 CanLII 6886 (ON CA), [1990] O.J. No 1378 (C.A.) stated:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[8] In Authorson v. Attorney General of Canada, 2001 CanLII 4382 (ONCA), McMurtry C.J.O. quoted Dubin C.J.O.’s ruling with approval and further stated (at paragraphs 8 and 9):

8. In contrast [to constitutional cases], Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. . . . Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to restrict submissions.

9. Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.

[9] The plaintiff, in opposing Ms. Vieira’s motion to intervene, relies on Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 378 (S.C.J.). In this case, Roberts, a lawyer, was alleged in the notice of action to have been a party to a fraud involving LPIC’s settlement of a claim against another lawyer. There was no allegation of fraud against Roberts in the statement of claim and, shortly after it was issued, the action was discontinued as against him. Roberts subsequently sought leave to intervene as an added party defendant on the grounds that he was still at risk of criminal or other proceedings arising from the allegations of a witness relied upon by LPIC and he wished to defend his reputation against those allegations. Further, he had a monetary interest in the action related to the fees he was owed for the settlement, and he had information regarding the credibility of the witness who alleged the fraud.

[10] In applying rule 13.01 to Roberts’ motion and in ultimately dismissing it, Nordheimer J. acknowledged previous authority (at paragraph 17) “that leave to intervene in a private lawsuit is only granted in rare cases”. He further stated (at paragraph 20):

20 I am also not satisfied that Mr Roberts will be “adversely affected” by a judgment in this proceeding in the fashion to which the subrule is directed. In any action, there may be adverse findings or observations made regarding the conduct of individuals who were witnesses at the trial. That does not give each and every witness the right to intervene merely because they may be the subject of such adverse comment. That is simply not the adverse affect [sic] to which the rule is directed. Rather, the rule is directed to the presence of an adverse affect on a person’s legal rights.

[11] Ms. Vieira relies on Peel (Regional Municipality) v. Greater Toronto Airports Authority, [1999] O.J. No. 1921 (S.C.J.). The applicant Peel sought a declaration that the respondent GTAA violated various procedures in failing to confirm the nomination of the proposed intervener Parsons to its Board of Directors. The GTAA’s position was that at an interview, Parsons refused to state that as a Director, he would act in all cases in the GTAA’s best interests. Parsons denied that he was asked the question.

[12] The GTAA, in opposing Parsons’ motion to intervene, argued that since Parsons’ main objective was to protect his integrity and veracity, his addition as a party would not assist the court to resolve the issues before it. Pitt J., in allowing Parsons’ motion, commented (at paragraph 19):

19 If [the GTAA] were successful in the underlying application, its success would depend on a finding of dishonesty on the part of Parsons in circumstances in which utmost good faith was required. The finding of dishonesty would likely disentitle Parsons from sitting on the board of [the GTAA].

[13] In applying the criteria for a motion to intervene under rule 13.01(1), and considering whether Parsons could make a useful contribution to the resolution of the underlying application, Pitt J. stated (at paragraphs 21 and 22):

21 A fair analysis of the dispute would demonstrate that:

(a) Parsons has an interest in the subject matter of the proceedings, that interest being the protection of his integrity, which is being attacked in the proceedings, and indeed which is the main focus of the respondent, and

(b)Parsons may be adversely affected by a judgment in the proceeding. Such a judgment may be a declaration that he is unfit by virtue of his dishonesty to serve on the Board of Directors, and

(c) There exists between Parsons and both of the parties a question of fact in common with that of the questions in issue in the proceeding, namely whether Parsons misrepresented in writing deliberations to which Parsons was a party, namely the interview to which I referred earlier. [emphasis added]

22 Clearly Parsons could make a useful contribution to the resolution of what might be an issue more complex than may appear on the surface, by placing the issue in a different perspective from that of the applicant, and I see no reason why his contribution cannot be made without causing injustice to the immediate parties. See Regional Municipality of Peel v. Great Atlantic and Pacific Co. et al. [supra].

[14] In Beardon v. Lee, 2005 CanLII 15470 (ON SC), the defendant physicians moved to set aside a judgment against them on the basis that the plaintiffs’ medical expert witness Dr. Crosby lied in his description of his qualifications. In considering and ultimately granting Dr. Crosby’s motion to intervene on the defendant physicians’ motion, Pepall J. accepted (at paragraph 8) Pitt J.’s conclusion in Peel (Regional Municipality) v. Greater Toronto Airports Authority, supra that “the protection of the proposed intervener’s integrity was a legitimate interest for the purposes of Rule 13.01(1)(a)” [emphasis added].

[15] Pepall J. also accepted the conclusion of Nordheimer J. in LPIC v. Geto Investments, supra that the “adverse effect” contemplated by rule 13.01(1)(b) must be an adverse effect on a person’s legal rights but further stated (at paragraph 11) that “having found that [Dr. Crosby] has met one of the preconditions [in rule 13.01(1)], I do not propose to belabour this issue”.

[16] The issue of whether intervener status should be granted to enable individuals to protect their integrity was more recently considered in Butty v. Butty, 2009 CanLII 92125 (ON CA). The proposed intervener was a lawyer who had represented one of the parties at trial. He sought leave to intervene in the appeal on the basis that the trial judge, in his reasons, was highly critical of him, stating that he had deliberately mislead opposing counsel and the court.

[17] LaForme J.A. applied the test under rule 13.01(1) and acknowledged that “leave to intervene in a private lawsuit is rarely granted” (Authorson, supra), but also that “leave will nonetheless be granted when the requirements of rule 13.01 are met”.

[18] In granting the proposed intervener’s motion, LaForme J.A. considered Beardon v. Lee, supra with approval, and stated (at paragraph 8):

8 Pepall J. in Beardon v. Lee [citation omitted] was correct in taking a liberal approach to the interpretation of rule 13.01(1)(a). I especially agree with her conclusion that the protection of “the proposed intervener’s integrity” can be sufficient to engage the provision, especially where there is no evidence that these interests would be advanced by the parties. That is precisely this case.

[19] The plaintiff relies on R. v. Ngoddy, 2017 O.C.A. docket M47772, a case in which the proposed intervener, identified as M.G.W., was the complainant in a sexual assault charge. M.G.W. had multiple disabilities, some of which affected her ability to communicate, and the trial judge admitted her evidence by way of an out of court statement. The accused was convicted at trial and successfully appealed the conviction on the basis that M.G.W.’s out of court statement was not sufficiently reliable to justify being admitted in evidence for its truth. M.G.W. then applied to intervene in the Crown’s appeal of the accused’s acquittal, arguing that she had a real, identifiable and substantial interest in the proceedings, the appeal raised the issue of access to justice for people with disabilities, and based on her factum, her participation in the appeal would be limited in scope.

[20] Hoy, A.C.J.O. dismissed M.G.W.’s application, stating (at paragraphs 18, 19 and 24):

18 In a criminal proceeding, the Crown represents the public interest and it alone is given the right to appeal from an acquittal. [citation omitted]

19 The discretion to allow interventions in a criminal case where the liberty of the accused is at stake is exercised sparingly. Courts are very reluctant to allow interveners in criminal cases, where, as here, the proposed intervener supports the Crown’s position. [citation omitted] . . . The actual or perceived fairness of an appeal could be jeopardized as the result of the accused, in effect, having to face two prosecutors. [citation omitted] . . .

24 The policy issues with ramifications beyond this appeal are better addressed by the Crown or a recognized organization with a broadly identifiable membership base than by a complainant with an interest in the outcome of the appeal.

[21] R. v. Ngoddy is a criminal case and as such does not involve a consideration of the requirements of rule 13.01 of the Rules of Civil Procedure. Further, as stated by Hoy A.C.J.O., because the proposed intervener in Ngoddy would have been supporting the Crown’s position, granting leave to intervene would have resulted in at least the appearance of the accused facing two prosecutors in circumstances in which his liberty was at stake. The Ngoddy decision is therefore not applicable to the motion to intervene in this civil action.

[22] To summarize the applicable rule and case law, rule 13.01(1) states that “a person who is not a party to a proceeding may move for leave to intervene as an added party”, subject to consideration of three enumerated criteria. The wording that the non-party “may move” for leave to intervene creates an initial threshold for the prospective intervener, which, if met, opens the door for the court’s consideration of other factors. The fact that the three criteria in 13.01(1)(a), (b) and (c) are connected by the word “or” means that only one of the criteria need be satisfied:

• In rule 13.01(1)(a), whether the proposed intervener claims an interest in the subject matter of the proceeding, including the person’s interest in protecting their integrity. (See: Peel (Regional Municipality) v. Greater Toronto Airports Authority, supra; Beardon v. Lee, supra; Butty v. Butty, supra)

• In rule 13.01(1)(b), whether the legal rights of the proposed intervener may be adversely affected by a judgment. (See: Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd., supra; Beardon v. Lee, supra)

• In rule 13.01(1)©, whether the proposed intervener and one or more of the parties share a question of law or fact in common with one or more of the issues in the proceeding.

[23] Assuming that the prospective intervener meets the threshold in rule 13.01(1), the court may exercise its discretion whether or not to add the person as a party and to “make such other order as is just” based on a consideration of the following:

1. The court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. (See: rule 13.01(2)).

2. Other factors to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the proceeding without causing injustice to the immediate parties. (See: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., supra).

3. The burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum, as opposed to those giving rise to broader constitutional issues. (See: Authorson, supra)

Issues on the motion

[24] The issues to be addressed on the motion are:

1. Does Ms. Vieira meet at least one of the threshold criteria in rule 13.01(1)?

2. If Ms. Vieira meets the threshold for bringing the motion, would an order allowing her to intervene unduly delay or prejudice the determination of the rights of the parties?

3. If granting leave to intervene would not unduly delay or prejudice the determination of the rights of the parties, should the court exercise its discretion to grant leave to Ms. Vieira to intervene, considering all relevant factors, including but not limited to:

(i) The nature of the case;

(ii) The issues in the action;

(iii) The fact that the proceeding is a private dispute;

(iv) The likelihood of Ms. Vieira making a useful contribution to the resolution of the proceeding without causing injustice to the parties.

Does Ms. Vieira meet at least one of the threshold criteria in rule 13.01(1)?

[25] Rule 13.01(1)(a) raises the issue of whether Ms. Vieira legitimately claims an interest in the subject matter of the proceeding. As stated above, based on my review of the authorities, the subject matter of the proceeding includes in its scope the protection of the proposed intervener’s integrity.

[26] With respect to the protection of her integrity, Ms. Vieira deposes in her affidavit as follows:

• “My complaint of the plaintiff’s conduct precipitated an investigation at ThyssenKrupp [referred to in the affidavit as TK]” following which “details of the incident spread throughout TK”. Rumours concerning the matter were “recounted then and continue to date” (paragraph 17).

• “The humiliation and degradation I suffered following this incident has affected me deeply. This incident has affected my reputation in the workplace. I continue to work at TK and do not have any wish to find alternative employment, but I do not wish to be further traumatized” (paragraph 18).

• “I have been the subject of derision and hostility from my co-workers because I refused to stay quiet about the behaviour of the Plaintiff and simply ‘suck it up’”(paragraph 20).

• “. . .[E]very word I say and everything I do is scrutinized” (paragraph 21).

• “A judgment for the Plaintiff . . . would cause me to fear for my physical integrity in the workplace, where there are many long-service male employees who would be aware that non-consensual sexual contact with me would not constitute just cause for dismissal” (paragraph 22).

• “While TK has been a supportive employer, TK is not, in its defence of the Plaintiff’s claim, advancing my personal interests in my physical and psychological well-being, my personal reputation or my personal integrity”. (paragraph 23)

• “Insofar as the Plaintiff is concerned, his claim implies I somehow invited and/or contributed to his assault and sexual harassment of me, and further implies that his conduct, while not acceptable, is not just cause for termination of employment. I have serious reservations about how that position will inform his counsel’s cross-examination of me as a witness” (paragraph 24).

[27] There is no responding affidavit or other evidence from the plaintiff on this motion.

[28] Much of Ms. Vieira’s affidavit consists of general statements without providing details. For example, she gives evidence about the incident affecting her reputation in the workplace, being traumatized, and being subject to derision and hostility from her co-workers, without providing examples of any events that lead her to these conclusions. However, during her cross-examination on her affidavit, Ms. Vieira did provide more details, as follows:

• With respect to the concern that she expressed regarding her physical integrity in paragraph 22 of her affidavit, she elaborated that “It’s a concern to me when you’re slapped in the ass and then you have to deal with all kinds of men who think – maybe they might think that it’s okay to do that” (Q. 183). She further stated that “if I had not spoken up about it, I’d have a line up of guys at my door trying to slap my ass or do other things like it. A message had to be sent that it’s not okay” (Q. 185). On further questioning, she reiterated “if I had not complained and if something hadn’t been done about this, men in my office would think that that behavior is okay, that’s what I’m saying” (Q 189).

• Following the February 28, 2014 incident, Ms. Vieira was feeling stressed and anxious about it but not to a level that she wanted to seek medical attention (Qs 207-209).

• When asked about the effects of the incident on her, as described in paragraph 20 of her affidavit, Ms. Vieira stated: “Things have changed for me at work, my relationships have changed, work has become harder than what it used to be because of this incident. Because there’s a stigma attached to me, that if you joke around with Linda, if you’re inappropriate, you could get fired. People are less cooperative. Mark Render was very liked and there were many people who were loyal to him and because of that, people disliked me because I was part of the reason why he was fired. It was due to his own actions that he was fired, but I complained about it, so those who were loyal to him and who liked him disliked me because of that” (Q 216).

• On the subject of her reputation, Ms. Vieira also testified: “Something like this stains your reputation and that has been concerning to me over the years because people will shy away from getting close to me. People dislike me and don’t cooperate as much with me – or some people do that” (Q 286). She once overheard another employee say “watch out for Linda because she’ll get you fired” (Qs 308-309). She further stated: “My life has become harder because of something that someone else did to me. I’m the victim in it and I’m the one being punished by living with this kind of environment” (Q 317).

• Regarding her reputation, Ms. Vieira further stated: “Because his side of the story is different than my side of the story that makes my reputation called into question” (Q 244). “And so, because if people believe his side of the story, they’re not believing my side of the story. I’m here to tell the truth about what happened that day. His side of the story is that he, unintentionally swiped my ass as I moved without warning and that’s not true. He raised his hand high in the sky and hit my ass hard and slapped it and it was stinging. That’s not unintentional, that’s on purpose” (Q 245).

• Ms. Vieira acknowledged that she had not brought forward any complaints or concerns as to her reputation or integrity to her employer because “I don’t wish to make any further complaints. I can’t control how people treat me or how they feel about me” (Q 282).

• On the question of why Ms. Vieira’s interests would not be protected by ThyssenKrupp’s counsel, she stated: “So Thyssen is protecting itself from a claim and paying out more than $500,000.00 to Mark Render and I’m here to protect my reputation because I am in the middle of this and he – his side of the story and my side of the story are different, so I’m here to uphold the truth” (Q 240).

[29] In paragraph 24 of her affidavit, Ms. Vieira expresses her concern about how the plaintiff’s position with respect to the circumstances surrounding the February 28, 2014 incident will affect his counsel’s cross-examination of her. The transcript of Ms. Vieira’s cross-examination on her affidavit is instructive as to the legitimacy of this concern, with respect to both the substance and the manner of questioning. The substance of the cross-examination included the following:

• Plaintiff’s counsel suggested to Ms. Vieira that her reference to a previous incident in which the plaintiff made an inappropriate comment was “very suspect” given the passage of time since that incident (Q 146-149).

• Plaintiff’s counsel asked Ms. Vieira whether she ever initiated sexual joking in the office (Q 363).

• Plaintiff’s counsel asked Ms. Vieira whether she had ever given Mr. Render sexually suggestive material or made comments or inappropriate comments (Q 400).

• Plaintiff’s counsel asked Ms. Vieira whether she gave Mr. Render a T-shirt on which were printed the words “Please tell your boobs to stop staring at my eyes”, which Ms. Vieira denied (Qs 424-428). (The description of the T-shirt is not in the transcript but Ms. Vieira’s counsel provided the description during submissions and plaintiff’s counsel did not take issue with it.)

• Plaintiff’s counsel asked Ms. Vieira whether she gave Mr. Render an apron with a muscular shirtless man on it, which she acknowledged (Qs 406-411). He also asked her whether she felt that the apron was sexually suggestive, to which she answered “No”. He then asked “Of course not, because it’s a woman doing it to a man now, is that why?”, to which she also answered “No” (Qs 419-420).

• Plaintiff’s counsel asked Ms. Vieira whether she had ever massaged Mr. Render’s neck and shoulders or whether she had ever put her hands on his or any other male staff member’s shoulders or neck, to which she answered “No” (Qs. 436-440).

• Plaintiff’s counsel asked Ms. Vieira about a skirt that she owned with black fabric on the front and a floral fabric on the back, and whether she modelled it while saying that “it’s business in the front and party in the back”. She acknowledged the description of the skirt and her comment but denied that she “modelled it” (Qs 441-450).

• Plaintiff’s counsel asked Ms. Vieira whether she ever performed a “Spanish dance” with a male employee at the office, which she acknowledged occurred “a couple of times” but denied that there was anything suggestive about it (Qs 477-489).

• Plaintiff’s counsel asked Ms. Vieira whether she recalled the men in the office using the expression “good game”, and when she stated that she did not remember that, he suggested that she was “having a selective memory” (Qs 494-498).

• Plaintiff’s counsel asked Ms. Vieira whether she remembered saying to three male co-workers “I wonder why is it that guys like to give girls [anal sex] at lunch”. When she denied saying this, plaintiff’s counsel asked whether the three men were lying, and her counsel objected. (Qs 515-517)

[30] Ms. Vieira’s cross-examination reveals that she feels stigmatized at work because she made a complaint to her employer about what transpired between her and the plaintiff, which led to the termination of the plaintiff’s employment, and as a consequence, the plaintiff’s friends who still work for ThyssenKrupp dislike her. She feels that her actions have compromised her reputation within the company, based, for example, on overhearing another employee say “watch out for Linda because she’ll get you fired”. She is aware that the plaintiff’s version of events is that the contact occurred by accident. She states that the plaintiff’s “side of the story” is not true but if people believe his version of events then her reputation is called into question. In this regard, the plaintiff expresses a legitimate concern with respect to her moral integrity.

[31] With respect to her physical integrity, Ms. Vieira’s evidence is that she spoke up about Mr. Render’s conduct to ensure that the other male employees at ThyssenKrupp would be aware that the type of conduct that she alleges would not be tolerated. Her concern is that if her evidence with respect to the events of February 28, 2014 is not accepted, or if the trial court, even accepting her evidence, does not uphold the plaintiff’s termination for cause, then her physical integrity at what continues to be her place of employment may be threatened. Specifically, such a finding may be perceived as condoning Mr. Render’s conduct and by extension, similar conduct from other employees. I accept that this is a legitimate concern.

[32] On his cross-examination of Ms. Vieira, plaintiff’s counsel described her evidence with respect to a previous comment made by the plaintiff as “very suspect”. He also commented that she had a selective memory with respect to the use of the expression “good game” by men in the office. He also asked her whether the three men to whom he suggested that the plaintiff made a comment regarding anal sex were lying, which is a cross-examination technique used to suggest that the person being asked the question is lying. These comments and question all raise concerns as to how Ms. Vieira’s moral integrity will be attacked at trial.

[33] In addition, plaintiff’s counsel examined and cross-examined Ms. Vieira extensively about various interactions she had with Mr. Render and with other men in the office, apparently with a view to establishing that Ms. Vieira herself was a participant in conduct of a sexually suggestive nature. First, even if such conduct occurred, it would not constitute consent by Ms. Vieira to Mr. Render slapping her across the buttocks. More importantly for the purpose of this motion, it reflects an intention on the part of the plaintiff to attack her credibility by impugning her moral integrity.

[34] I accept that Ms. Vieira’s affidavit and cross-examination 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. The substance of plaintiff’s counsel’s cross-examination of Ms. Vieira on her affidavit reinforces my view in this regard. Based on Ms. Vieira’s interest in protecting her moral and physical integrity, she clearly has an interest in the subject matter of the proceeding.

[35] In addition to the substance of plaintiff’s counsel’s cross-examination of Ms. Vieira, which is presumably an indication of his likely cross-examination of her at trial, the manner in which he conducted the cross-examination is also relevant to whether Ms. Vieira should be granted intervener status so that she will have the benefit of her own counsel at trial. Examples of the manner of questioning are as follows:

• Plaintiff’s counsel interrupted Ms. Vieira without allowing her to finish her answers. (Qs 147-148; Q. 212-213; Qs 247-249; Qs 319 and 320; Q. 608-609; Q 621-622; Q. 627; Qs 632-636; Qs 652-653; Q 672; Qs 688-689; Q.704-705)

• Plaintiff’s counsel asked two or more questions at once. (Q 128; Q. 181; Q. 183; Q 212; Qs 219-221; Q. 251; Q. 509; Q. 738-739)

• Plaintiff’s counsel refused to respond to requests by Ms. Vieira that she be permitted to provide clarification of statements that he made leading up to various questions. (Q 446; Qs 553-555; Qs 629-636)

• When Ms. Vieira objected to a question about what someone else saw, which plaintiff’s counsel ultimately acknowledged was a legitimate objection, he threatened to “get a court order and have you come right back” (Qs 503-508). He made this threat despite the fact that this was the first objection to a question in over 500 questions covering 86 pages of transcript.

• On one occasion, plaintiff’s counsel asked a question, then recited a series of events stretching from a Friday to a Monday, and then asked another question which required the intervention of Ms. Vieira’s counsel to ensure that Ms. Vieira was able to respond to each statement and question individually. (Qs 659-661)

[36] Essentially, the cross-examination of Ms. Vieira was not always conducted in a fair manner. The cross-examination at trial will be at least in part an attack on Ms. Vieira’s credibility, reputation and integrity. It is therefore important that she have the benefit of her own counsel to protect her against unfair challenges to her integrity, with respect to which she has an interest that goes beyond ThyssenKrupp’s interest in her credibility.

[37] Rule 13.01(1)(b) raises the issue of whether Ms. Vieira would be adversely affected by a judgment in the proceeding. As stated above, the applicable case law is that this provision contemplates an adverse effect on the proposed intervener’s legal rights. Ms. Vieira seeks no relief in the action itself and no relief is sought from her, so even if her evidence at trial were not accepted, there could be no finding of the court at trial that would adversely affect her legal rights.

[38] Rule 13.01(1)© requires a consideration of whether Ms. Vieira and the plaintiff or defendant share a question of law or fact in common with one or more of the issues in the proceeding. There is a common question of fact among Ms. Vieira and both parties as to what exactly transpired during the incident of February 28, 2014 that led to the termination of the plaintiff’s employment. Ms. Vieira also has an interest in the legal issue of whether the plaintiff’s alleged conduct was sufficient to warrant the termination of his employment for cause.

[39] Accordingly, Ms. Vieira meets the threshold criteria in rules 13.01(1)(a) and (c).

Would an order allowing Ms. Vieira to intervene unduly delay or prejudice the determination of the rights of the parties?

[40] Ms. Vieira seeks an order that would allow her counsel to participate in the trial on a limited basis. She proposes that her counsel have a limited right to cross-examine the plaintiff regarding issues concerning herself. According to her affidavit, she also proposes that her counsel have the right to object to questions while she is being “examined”; she must have intended this to read “cross-examined” because, while she plausibly has an interest in her integrity that goes beyond the defendant’s interest in her credibility, she is not adverse in interest to ThyssenKrupp and there would be no reason for her counsel to object to questions on her examination-in-chief by ThyssenKrupp’s lawyer. She also proposes that her lawyer have a right of re-examination following her examination-in-chief and cross-examination. Finally, she proposes that her lawyer be permitted a brief opening statement and the right to advance her position in closing argument.

[41] Ms. Vieira’s counsel submits that his participation at trial will be sufficiently limited so as not to lengthen the trial significantly. The plaintiff submits that any involvement of counsel for a witness will add to the complexity of the proceeding and that it is difficult to predict how much delay could result from an additional counsel’s objections, questions or submissions. This is the concern expressed in paragraph 8 of Authorson, supra.

[42] The issue is whether the participation of counsel for Ms. Vieira in the trial would “unduly delay or prejudice the determination of the rights of the parties”. The question is therefore whether granting leave to intervene on the limited basis proposed will delay the resolution of the action as a whole. The trial has been adjourned twice, first in December, 2017 because the plaintiff retained new counsel, and recently owing to the defendant’s lead counsel sustaining injuries in an accident. However, the motion for leave to intervene will not delay the commencement of the trial.

[43] I would not expect the involvement of counsel for Ms. Vieira to lengthen the trial by more than half a day, and any such additional trial time would not constitute an undue delay in the determination of the rights of the parties.

[44] Neither will there be any prejudice to the plaintiff. Ms. Vieira will be a witness at trial in any event so the involvement of counsel on her behalf will not significantly change the landscape of the trial. Further, the trial will be conducted by judge alone and not by judge and jury, so there can be no concern that a jury will be influenced by the fact that there is a second counsel advocating for a position that could assist the defendant.

Other factors relevant to the exercise of the court’s discretion

o The nature of the case and the issues in the action

[45] There are two principal issues in the plaintiff’s claim. The main factual issue is whether the incident of February 28, 2014 that led to the termination of the plaintiff’s employment occurred as described by the plaintiff in the statement of claim, or as alleged by Ms. Vieira and the defendant in the statement of defence (see paragraph [2] above). The main legal issue is whether the plaintiff’s conduct was sufficient to warrant the termination of his employment for cause.

[46] These issues, and the related challenges to Ms.Vieira’s integrity that will arise both at the trial of the action and plausibly as a result of the outcome of the trial, have been reviewed extensively above in considering the applicability of rule 13.01(1)(a) to her circumstances. Ms. Vieira’s evidence and the substance and manner of plaintiff’s counsel’s cross-examination of her are both sufficient to enable Ms. Vieira to meet the threshold required for the court to consider her motion, and also strongly support the court’s exercise of its discretion to grant her intervener status.

o The action as a private dispute

[47] The fact that this action is a private dispute between the plaintiff Mr. Render and his former employer ThyssenKrupp places a higher burden on Ms. Vieira on this motion but does not preclude the granting of the motion. It is necessary to go beyond the character of the dispute and to consider whether the nature of the case and the issues in the action warrant granting her intervener status. The key issue is whether allowing Ms. Vieira to have her own counsel at trial is a reasonable measure to enable her to protect her integrity in the context of her continued employment with ThyssenKrupp. The fact that the dispute is a private one does not diminish the importance of or preclude her ability to do this.

o The likelihood of Ms. Vieira making a useful contribution to the resolution of the proceeding

[48] A further factor to be considered is the likelihood of Ms. Vieira making a useful contribution to the resolution of the proceeding without causing injustice to the parties. This is an issue on most motions to intervene because the proposed intervener typically would not otherwise be involved in the trial. In this case, however, Ms. Vieira will be a witness at trial regardless of whether this motion is successful. Because her evidence is essential to the adjudication of the main factual and legal issues of what transpired with Mr. Render on February 28, 2014 and whether ThyssenKrupp had cause to terminate his employment, it is obvious that her contribution will not merely be useful but will be critical to the just resolution of the action. I have addressed the issue of whether her counsel’s participation could cause any prejudice to the plaintiff in paragraph [44] above.

Summary and decision

[49] 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.

[50] LaForme J.A. in Butty v. Butty, supra favoured a liberal approach to rule 13.01, stating (at paragraph 8), that “the proposed intervener’s integrity can be sufficient to engage the provision especially where there is no evidence that these interests would be advanced by the parties” [emphasis added]. In the case before me, Ms. Vieira’s interest in her moral and physical integrity goes beyond the interest in her credibility that would be advanced by the defendant employer, and warrants an order granting her intervener status so that she will also have the benefit of her own counsel’s limited participation in the trial.

[51] Although the burden on a proposed intervener is heavier in a case arising from a private dispute such as this one, the issue of the protection of an individual’s integrity is as likely to arise in the context of a private dispute as in one giving rise to a broader constitutional issue. The fact that a dispute is a private one, rather than one of a more public nature, is therefore not a bar to the granting of intervener status to protect the intervener’s integrity.

[52] 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.

[53] The moving party Linda Vieira is hereby granted leave to be added to this action as an intervener, and to be represented by her own counsel at trial, with limited rights of participation as follows:

1. Following the cross-examination of the plaintiff by counsel for the defendant, Ms. Vieira’s counsel shall have the right to cross-examine the plaintiff on matters related to Ms. Vieira’s personal interest in her reputation and integrity;

2. Ms. Vieira’s counsel shall have the right to object to questions asked of her on cross-examination and to re-examine following her cross-examination;

3. Ms. Vieira’s counsel shall have the right to make a brief opening statement to confirm his role at the trial and submissions in closing argument with respect to any factual and legal issues relating to Ms. Vieira’s credibility and integrity.

[54] My decision to grant Ms. Vieira leave to intervene in the action is based in part on my acceptance of her counsel’s proposed limitations with respect to his participation on her behalf and that his participation will not unduly delay the completion of the trial. The plaintiff should therefore be able to assume that Ms. Vieira’s counsel will not seek to participate in the trial to any greater extent than as proposed on this motion. Ultimately, of course, the extent of Ms. Vieira’s counsel’s participation is a matter for the trial judge.

Costs

[55] Counsel for Ms. Vieira submitted at the conclusion of the hearing that if successful in obtaining the order sought, he would not seek costs. Accordingly, I order no costs of this motion.

Master Graham

DATE: May 23, 2018