A flight attendant who accused a colleague of sexual harassment has been denied the right to intervene in the arbitration over his dismissal, a ruling that puts into focus the limitations on third-party involvement in labour disputes.
The arbitration case stems from a complaint filed by a female flight attendant against her colleague, Mr. H., alleging that he had sexually harassed her during multiple flights. The complaint, initially filed on August 22, 2022, led to an investigation by Air Canada’s Human Rights and Harassment Office (HRHO). Following the investigation, which substantiated the harassment claims, Mr. H. was discharged on January 27, 2023.
However, the flight attendant contended that she was not informed of Mr. H. dismissal and continued to take steps to avoid working with him. This process, which involved checking flight rosters and potentially facing rescheduling with financial and personal inconvenience, was described by the flight attendant as unfair. She said she only found out about his dismissal in April 2024 when Air Canada met with her to prepare a witness statement in his grievance over the termination.
In response, the Canadian Union of Public Employees (CUPE), representing the attendant, filed a separate grievance on March 8, 2023, seeking remedies that included protection from future conflicts with Mr. H.
As the arbitration concerning Mr. H.’s discharge approached, Air Canada intended to call the flight attendant as a witness. The flight attendant then sought to intervene in the arbitration, arguing that the outcome could impact her own grievance. CUPE, representing her, requested limited third-party standing, proposing to participate only where her interests were directly affected.
Air Canada opposed this request, arguing that the grievance arbitration process is a private matter between the union and the employer and that third-party involvement should be reserved for exceptional cases. The airline further contended that the flight attendant’s interests were aligned with its own, as both parties sought to prevent Mr. H.’s reinstatement.
In his ruling, Arbitrator Peter Chauvin denied the flight attendant’s request, emphasizing the private nature of arbitration and the stringent criteria for third-party standing. He cited multiple precedents that restrict such involvement to situations where a third party has a direct and substantial interest that cannot be adequately represented by the existing parties.
“Exceptions to this general rule are made in limited circumstances, such as where the union and employer each take a position which is adverse to the employee whose very right to employment is at issue,” Chauvin stated, referencing the case of Toronto Hospital v. ONA as a guiding precedent. He found that in this instance, the flight attendant’s interests did not meet the threshold required for intervention.
Chauvin noted that while the Complainant had a significant interest in ensuring Mr. H. was not reinstated, this interest was already represented by Air Canada’s position. “The Complainant cannot claim to be ‘effectively unrepresented’ in this proceeding,” the ruling emphasized, pointing out that Air Canada’s legal team was prepared to advocate against his return to the workplace, with the Complainant serving as a key witness.
The decision also clarified that the flight attendant’s remedies, including any concerns about working alongside Mr. H. in the future, would be addressed in her own grievance arbitration. “Each of these distinct interests will be addressed in their own separate Arbitrations,” Chauvin wrote, dismissing the argument that denying intervention could result in inconsistent rulings across different forums.
Moreover, the ruling underscored the alignment of interests between the flight attendant and Air Canada, which both share a “broad legal interest in maintaining a harassment-free work environment.” Chauvin determined that this shared goal did not justify the flight attendant’s request for third-party standing, as it did not constitute a legal interest warranting intervention under established labour law principles.
The ruling ultimately keeps the focus on the upcoming arbitration, where the central issue will be whether Air Canada had just cause to terminate Mr. H. The flight attendant, while unable to intervene directly, will have her voice heard as a witness, and her separate grievance remains pending.
For more information, see Air Canada v Canadian Union of Public Employees, Air Canada Component, 2024 CanLII 78960 (CA LA).
