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Rusonik settles with former employee

|Written By Neil Etienne

A wrongful dismissal suit against one of Canada’s largest criminal defence firms has been put to rest and settled out of court.

‘Litigation is never a pleasant process for anybody, so we’re very pleased to come to an agreement,’ says Natalie MacDonald.

The lengthy matter came to a close the week of Nov. 20 when the two sides came to an agreement just weeks before it was due for trial on Dec. 7. The details of the settlement remain confidential, but Tracy Francis, who launched the action against Toronto-based Rusonik O’Connor Robbins Ross Gorham & Angelini LLP in early 2011, says she’s pleased with the result and happy to move on with her career.

“I am very pleased that a settlement was reached in the litigation of this matter and also with the sentiments expressed in the joint statement,” she says. “As for my immediate plans, those include taking a few months to travel and basically decompress before starting the next phase of my professional life.”

In a joint statement released by Rusonik and Francis’ defence counsel, Natalie MacDonald of Rudner MacDonald LLP, they state: “By mutual agreement, the parties have amicably resolved the litigation in this matter and out of respect for the parties, the details of the settlement are confidential.

“The Firm states that much has changed with the Firm since these proceedings were commenced and we are pleased that this matter is at end,” the statement said. “We appreciate the contributions Ms. Francis made to the Firm and we are sure she will be very successful in her future endeavours.”

In March of 2011, Francis launched an action against her former employer for wrongful dismissal. In her statement of claim, Francis alleged she was fired for making the same kinds of disparaging remarks she alleged were routine among partners at the firm.

In a first claim, Francis requested $106,550 in damages from the firm to cover her wages and benefits for 12 months and also sought $85,000 in moral damages for the manner of her firing, which Francis alleged caused her mental distress and left her unable to sleep.

According to the firm’s statement of defence, it terminated Francis for cause. The firm alleged she failed to adequately perform assigned tasks and instead “devoted herself nearly exclusively to attempting to manipulate the students” working at the firm.

The firm claimed she engaged in a “deliberate course of misconduct designed to disparage and undermine the firm’s partners, lawyers and students, as well as breach the firm’s confidentiality.”

In its statement of defence, the firm alleged Francis singled out partner Jeff Hershberg for particular abuse in e-mail correspondence with two associates.

It claimed Francis called Hershberg a “tyrant” and a “sniveling bitch,” expressed a desire “to choke him.”

But in her reply dated July 15, 2011, Francis fired back, alleging “it was perfectly acceptable within the firm’s culture to make these types of comments using the firm’s e-mail system.”

“It is disingenuous for the partners to plead otherwise,” Francis wrote in the reply. “As long as the plaintiff was an employee of Pinkofskys/Rusonik LLP, the act of making what have now been termed disparaging remarks was not only acceptable to the partners.... They all actively participated in, openly encouraged, and rewarded such behaviour.”

Francis worked as practice manager, a job that had her maintaining the calendar of court appearances for lawyers and students at the former Pinkofskys firm between 2005 and 2009, when she left to work for another criminal lawyer in the city.

She returned to Pinkofskys in March 2010 in an altered role working as assistant to managing partner Reid Rusonik. Francis stayed on when the firm switched to its new identity, Rusonik O’Connor Robbins Ross Gorham & Angelini LLP, in July 2010.

In May of 2013, Rusonik withdrew the just-cause portions of its defence and Francis countered with an increased claim for $1.5 million in damages for wrongful dismissal. In the new defence, the firm said it wasn’t happy with Francis’ performance in the new role she took on in March 2010.

The firm also said in its defence that “the termination of the plaintiff was conducted in a proper manner in accordance with accepted business standards” and that “the plaintiff has not suffered damages claimed or any damages and puts her into proof thereof.”

In her amended statement of claim, Francis said the firm had failed to comply with its duty of good faith and fair dealing because there was no explanation at the time of her dismissal. She suggests it terminated her for “the same actions that the partners took, and participated in.”

Employment lawyer Doug MacLeod of the MacLeod Law Firm says the matter is a good warning for all sides to ensure proper employment contracts are in place that have clearly detailed termination clauses.

“I act for a lot of law firms and I always suggest the firm require all associate employees to sign contracts,” he says. “The termination clause would set out exactly what the employer’s obligation would be in terms of a termination; that would have been the end of this case and it would never have gone to court.”

MacDonald said while details of the settlement could not be discussed, it was a “good resolution for all parties” and was pleased her client will be able to proceed unhindered into her career.

“You have to have a willingness from both sides to come to an agreement in any case and any time you can do that, you have to; it’s better for the sake of the judicial economy,” she says. “Litigation is never a pleasant process for anybody, so we’re very pleased to come to an agreement.”

Update: The online version of this story was modified slightly to remove a reference to a lawyer's appearance.

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