National Post (National Edition)
WORKPLACE LAW
Opts for trial instead of cushy settlement
How ruling in favour of constructive
dismissal complainant ended up being a victory for the company.
Society is still grappling with contentious questions in the wake of the #MeToo movement.
Everything is still on the table — accountability, redemption, retribution and the role, if any, of forgiveness in assessing how to deal with claims of sexual harassment. New norms are being developed as we tackle and discuss subjects that for far too long never reached the light of day.
The Ontario Court of Appeal recently released a decision
that furthers that discussion. The decision upheld the right of an employee to claim constructive dismissal when forced to again work with someone who had harassed them in the past. But it failed to push the envelope when it comes to protecting the complainant, favouring the principle of settlement of litigation over the complainant’s interest.
It involved a 49-year old employee, Linda Colistro, who worked as an executive assistant for the city of Thunder Bay, Ont., and subsequently, the city’s corporation, Tbaytel. Colistro had worked with it for more than 20 years and along with others, had made a sexual harassment complaint against her immediate supervisor, Steve Benoit, back in 1995. After investigating Benoit’s behaviour, his employment was terminated, in part because of the complaints.
Nearly 10 years later, Colistro was devastated to learn that he had been rehired. Indeed, she was so upset that she went home, never returned to work again, and brought a claim for constructive dismissal.
Sometimes these types of claims have been dismissed due to courts finding that the change was not inordinate and the employer was motivated by legitimate business interests.
In Colistro’s case, though, the court sent a message that a company cannot prioritize its business interests over other considerations. Rehiring Benoit had a devastating impact on the mental health and well-being of Colistro, making her work environment intolerable. As such, the court ruled that she had been constructively dismissed.
On paper, this seems to be a victory for Colistro, but that turned out not to be the case.
Ontario’s Rules of Civil Procedure encourage the timely settlements of disputes. Unnecessary litigation is not condoned and there are mechanisms to discourage such behaviour.
During this litigation, Colistro was offered a healthy settlement to resolve the dispute. For a variety of reasons — vindication primarily — she turned down the offer and pursued the matter to trial. The trial judge took that into account when awarding costs.
Although the trial judge ruled in Colistro’s favour by agreeing that she had been constructively dismissed, the award granted was less than the amount offered to her to settle. As such, costs were awarded in favour of Tbaytel and the city, ultimately making them the more successful parties.
The court of appeal upheld the costs awarded by the trial judge to maintain the status quo of encouraging dispute resolution.
The result is that Colistro is on the hook for a hefty sum of legal fees. While the judgment granted her $114,082, she was ordered to pay total costs of $200,000 to Tbaytel and the city, plus whatever fees were charged by her own lawyer.
Although the court does send a message that indicates Tbaytel was wrong to rehire someone who was partly dismissed for sexual harassment, it failed to substantively award the victim who was cornered to leave her longterm place of employment.
But, of course, having the balance and judgment to respond to legally reasonable offers, and making such offers yourself, has much to do with success in this field.
Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories
from the Workplace: Columns by Howard Levitt.
hlevitt@levittllp.com Twitter.com/HowardLevittLaw