A judge has dismissed part of a lawsuit filed by a former employee of J.D. Irving Ltd. against her union and a former union representative.
Erin McDonough sued Unifor Local 523, alleging she was sexually assaulted by union official Andrew Clark after he was put in charge of her sexual harassment complaint against several co-workers. She also says the union kept him on her case even after she disclosed the alleged assault.
According to the statement of claim filed with the court, Erin McDonough was at a work-related event in Edmundston with Clark, the vice-president of her local union, when he allegedly followed her to her hotel room and sexually assaulted her.
Justice Katheryn Gregory of Saint John Court of King's Bench dismissed most of the lawsuit, including the claim related to Clark and the claim the union breached its duty to fairly represent her.
In a written decision, Gregory said she believes she does not have jurisdiction to deal with that complaint, because it's a workplace-related issue.
Gregory said McDonough should take her complaint against Clark to a labour arbitrator.
In early 2022, Gregory dismissed similar allegations in a different lawsuit filed by McDonough, one naming J.D. Irving as a defendant as well as Clark, for the same reason — lack of jurisdiction.
Gregory did not outright dismiss the allegation that Unifor was liable for failing to protect McDonough. She said she will put that aspect of the lawsuit on pause until any arbitration process involving the claims against Clark are resolved.
"Once that process has been concluded, the claim of vicarious liability can resume in this Court," Gregory's decision says.
In an interview Wednesday, McDonough's lawyer Mike Dull said asking his client to take a complaint against a union rep to the union is "circular reasoning."
No longer at JDI
Dull said he and his client are still exploring options, but he expects the labour arbitration route to be a dead end since McDonough has not worked for J.D. Irving for years.
He said if it's confirmed McDonough can't go through arbitration, she plans to continue her lawsuit against Unifor.
"This is not over," he said.
The judge dismissed McDonough's claim that the union breached its duty to represent her fairly, because the breach allegedly happened in 2018 and too much time has passed since then.
This is the third lawsuit filed by McDonough in New Brunswick related to her experience at Irving's paper mill in Lake Utopia. The previous two suits were dismissed, including one against her health-insurance provider.
McDonough was examined after the alleged assault and talked to Edmundston police about the case, but no charges were ever pursued.
None of the allegations contained in her statement of claim have been proven in court. Since Gregory dismissed them, McDonough's direct claims against Clark will now never be tested as part of this lawsuit.
Gregory's decision appears to agree in principle with what lawyers for Andrew Clark and the union have argued previously.
In a court hearing earlier this month, they asked that the case be thrown out because it allegedly occurred in the workplace — since it was an event organized by the employer — and therefore should be handled by a labour arbitrator not a civil court.
Dull's argument was that the alleged sexual assault happened in a hotel room, not the workplace, and that Clark was acting in his capacity as a union official and not a co-worker.
Origins of case in 2015
According to the statement of claim, McDonough started working at Irving's paper mill in Lake Utopia in May 2015. She was 22.
By 2017, she filed a complaint alleging repeated sexual harassment by her co-workers. As a result, the union assigned Clark to oversee the investigation into McDonough's allegations of sexual harassment.
According to the court documents, in March 2018, the plaintiff was "asked to attend an event organized by the Defendants. The Plaintiff states that during the course of this event, the Defendant Clark followed her back to her hotel room, where he sexually assaulted her."
McDonough reported the alleged incident to her union and "nothing was done and the Defendant Clark continued to be responsible for the investigation into the Plaintiff's prior sexual harassment allegations," the court document says.
The statement says McDonough endured the sexual harassment "until she was forced to remove herself from the toxic and dangerous work environment under medical advice."
In her decision, the judge ordered McDonough to pay $1,000 in costs to Clark, and $500 to the union.