Worker alleges she was sexually assaulted by union rep investigating her harassment complaint

A former employee of J.D. Irving Ltd. is suing her union after she alleges she was sexually assaulted by the union official who was put in charge of her sexual harassment complaint against several of her co-workers.

According to the statement of claim filed with the court, Erin McDonough was at a work-related event with the vice-president of her local union when he allegedly followed her to her hotel room and sexually assaulted her.

The civil case is currently before the courts, and none of the allegations contained in the statement of claim have been tested in court.

Lawyers for Andrew Clark and his union, Unifor, have 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.

Justice Kathryn Gregory heard from all sides on Tuesday morning and has reserved decision in the case.

McDonough's lawyer, Mike Dull, argued that the case should be heard in civil court because the alleged sexual assault took place in a hotel room and outside the workplace.

He said "it would be a stretch" to define a hotel room as a workplace.

Just because the plaintiff and the alleged perpetrator are members of the same union, it shouldn't make him "immune from civil liability," said Dull outside the courtroom after the hearing.

Plus, he said, labour arbitration is not a viable option for McDonough because she left the company.

"This is it," he said.

Dull said Canadian case law establishes that "sexual assaults that happen in the workplace between two co-workers are in the exclusive jurisdiction of labour arbitration. So there's nothing we can do about that."

His argument is that the alleged sexual assault did not happen in the workplace, and that Clark was acting in his capacity as a union official and not a co-worker.

Statement of claim

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, its vice-president, to oversee the investigation into McDonough's allegations of sexual harassment. That, said the statement of claim, placed him "in a position of authority over the Plaintiff."

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 says "nothing was done and the Defendant Clark continued to be responsible for the investigation into the Plaintiff's prior sexual harassment allegations," said the court document.

She also alleged that "no meaningful investigation ever took place" and that no changes were made to her work environment after she reported the allegations.

The statement said, "She continued to endure sexual harassment until she was forced to remove herself from the toxic and dangerous work environment under medical advice."

According to the statement, the plaintiff said her "complaint and concerns were arbitrarily dismissed by the Defendants without a proper investigation."

Seeking damages

McDonough is seeking damages for physical, psychological and emotional harm, and for depression, anxiety, mental anguish, post-traumatic stress disorder, loss of employment and career viability, and loss of enjoyment of life, among other things.

According to the statement of claim, "It is unlikely that the Plaintiff will ever be able to return to work in the field of her choice, and as such she makes a claim for special damages for loss of future earning capacity."

Although there were several individuals named in earlier versions of McDonough's lawsuit, Clark is the only individual still named, along with his union. Clark could not be reached for comment and a message passed through the union has gone unanswered by publication time.

When asked for comment on Tuesday, Unifor responded with a brief statement, saying the union looks forward to the judge's ruling on whether the claim should proceed in civil court.

To McDonough's knowledge, no criminal charges have ever been laid and she said she hasn't heard from Edmundston police in several months.

She tried to call the investigating officer on Wednesday but is still waiting to hear back. CBC News made a similar attempt to reach the investigator, but she did not respond by publication time to a message.