Canadian Sexual Harassment Case Dismissed

A sexual harassment suit brought by a female firefighter against her department and her union has been dismissed… sort of. The court concluded that it lacked jurisdiction to hear the suit, and that the matter rightfully belonged in binding arbitration.

The case is from Ontario, Canada and if the reasoning for the dismissal seems a bit strange that is because in the United States victims of civil rights violations (race, sex, disability, age discrimination, etc.) have an absolute right to have their claims heard in court. In fact, a collective bargaining agreement or a state law that tried to limit a victim’s access to the courts would be struck down.  

Firefighter Mary Herzog filed the suit on December 23, 2010 in Ontario Superior Court against the City of Windsor Fire & Rescue Department, several members of the department, and the Windsor Professional Fire Fighters Association. She was seeking $10,000,000 in damages for alleged emotional and sexual abuse, and an additional $2 million in punitive damages.

The case bogged down when Herzog’s lawyer withdrew from the suit, and Herzog was unable to secure a replacement.

In a ruling issued on May 7, 2012 that was previously unreported in the media, Superior Court Justice Thomas Carey concluded that “the collective agreement directs that all differences arising out of the plaintiff’s employment fall within the exclusive jurisdiction of an arbitrator to be settled by binding arbitration. This court has no overlapping jurisdiction…”

The matter came to the notice of the media when the city’s attorney placed the case on the city council’s agenda for discussion last evening. The issue for the council: should the city appeal the judge’s denial of an order to make Herzog pay the city’s defense costs of $26,500. In ruling not to assess Herzog defense costs, Judge Carey wrote:

The plaintiff is self-represented and receives disability pension. The material before me indicates that her physical and emotional health have deteriorated since her initial complaints. She relied upon her former solicitor for legal advice and given the settled nature of the law in this area was apparently poorly served. In the record before me, it seems she has not received moral or financial support from her Association. The material filed on consent supports that her complaints were not without some merit. The imposition of a costs order against her would be disproportionately punitive to her in all the circumstances.

The city’s lawyer, Mark Nazarewich, recommended that the city leave well enough alone. No word on the final decision.

Here is a copy of Nazarewich’s memo and court ruling:

More on the caseCity Attorneys Memo.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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