In Kafka’s “Before the Law”, the protagonist is faced with a door through which he seeks to obtain “the law”, yet, year after year, attempt after attempt, he is denied entry. He is told the door is made for him, but still, it will not open for him.
Survivors of sexual violence are familiar with this experience. Every step of the way, they face hurdles – stigma, trauma, costs, delays and complexity. They also face unexpected and confusing hurdles like collective bargaining agreements that purport to protect them, while (on the surface) limiting the rights that they have at common law and under the Limitations Act to pursue remedies for sexual violence on their own terms when they are ready to do so.
However, this week the door has cracked open a little further.
In A.H. v SNC Lavalin 2022 BCSC 2106, the Defendants applied to strike the Plaintiff’s action for remedies arising from sexual misconduct (including sexual battery) by a supervisor that had occurred years prior. The Plaintiff had commenced and abandoned a grievance claim in favour of a civil action. Meanwhile, certification by WCAT was ongoing. Justice Loo found that in light of the wording of the collective bargaining agreement, which allowed for alternative actions apart from the grievance procedure, the abandoned grievance, and the potential that WCAT would conclude that it was not the appropriate venue, the Plaintiff faced real risk of being without a remedy. The court chose to confirm and exercise its inherent jurisdiction in dismissing the application to strike the Plaintiff’s civil action and affirmed the principle that where there is a right, there is a remedy.