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Associate sues Mathews Dinsdale for $1.3M

|Written By Michael McKiernan

Employment law boutique Mathews Dinsdale & Clark LLP is facing a $1.3-million wrongful dismissal suit from a former associate as the fallout continues from a party more than two years ago and as the partner at the centre of it all leaves the firm.

Adrian Jakibchuk launched the action just as former Mathews Dinsdale partner David Cowling agreed to drop his own defamation suit stemming from allegations of harassment and inappropriate sexual conduct at Toronto nightclub Cheval in 2009. Cowling resigned from the partnership last week.

Jakibchuk, who was in his fourth year as an associate at Mathews Dinsdale, was a defendant in Cowling’s defamation suit along with another associate, Sarah Diebel, a second-year lawyer.

Cowling, a married father of three young children, sued them for $2.3 million in March 2010.

He alleged intentional interference with economic relations when they spoke to partners about his behaviour and claimed their statements were false and “maliciously and deliberately designed to cause significant injury to the plaintiff’s professional and personal reputation.”

Diebel left Mathews Dinsdale in June 2009. But Jakibchuk was served with the lawsuit at Mathews Dinsdale’s office, where he still worked.

Two months later, Jakibchuk left the firm. In his statement of claim filed last week, he alleges partners at the firm refused to assign him new work, retrieved some files already assigned to him, and stopped socializing with him after the launch of the defamation action, all of which created a “hostile and poisoned work environment.”

Both Jakibchuk and Diebel denied defaming Cowling. None of the allegations in Jakibchuk’s lawsuit have been proven in court.

“This has been an extremely difficult and stressful experience for my client to be sued by a partner in the firm,” says Jakibchuk’s lawyer, Paul Schabas of Blake Cassels & Graydon LLP.

“He was then unemployed for a significant period of time. It was a very difficult thing to have to go through, especially at an early stage of your career.”

Jakibchuk was unemployed until November 2010, when he joined Sherrard Kuzz LLP, another employment law firm with its own connection to Mathews Dinsdale. Co-founder Erin Kuzz left an associate position at Mathews Dinsdale to start the firm in 2001.

Terrence O’Sullivan, who represents Mathews Dinsdale, says the firm intends to defend against Jakibchuk’s claim in the near future.

“All I’m able to say at the present time is that the firm believes totally and unequivocally that the claim is without merit,” says O’Sullivan, a partner at Lax O’Sullivan Scott Lisus LLP.

The saga dates back to January 2009 at the time of Mathews Dinsdale’s annual labour arbitration competition, a moot that attracts contestants from across the country.

Following a dinner to celebrate the end of the competition, the Mathews Dinsdale crowd moved on to Cheval for the after-party.

Diebel detailed her experience of the night in a lengthy complaint letter to Mathews Dinsdale partner Neil Ornstein dated the day after the party. “As the night wore on, the free booze flowed,” she wrote in the letter attached to Cowling’s claim. “I was so very ashamed of being complicit with this night of debauchery.”

Diebel alleged Cowling and another lawyer had rubbed up against her and put their arms around her “at any chance they got.”

“While I like to dance, I don’t like being groped,” Diebel wrote.

Jakibchuk, who helped organize the moot, says in his claim that he saw Cowling dancing closely with an intoxicated law student and alleged he grabbed her breast at one point. He later told Ornstein about what he had seen and claimed he was assured the matter “would be handled delicately.”

In his claim, Cowling said the allegations were false and “calculated to cause harm” and had quickly circulated throughout the firm. When he learned his actions were being questioned, he asked Mathews Dinsdale to undertake an independent investigation.

Kelley McKinnon, a partner at Gowling Lafleur Henderson LLP, delivered a confidential report on the matter in May 2009 after interviewing all of the parties concerned. Diebel’s defence says she resigned a month later, although Cowling claims the firm terminated her.

According to Jakibchuk’s claim, he asked to see a copy of the report but was denied. But he says the managing partner assured him he “had nothing to worry about from the contents of the report.”

Ten months later, Jakibchuk did have something to worry about when Cowling’s claim was served on him at Mathews Dinsdale’s reception. Jakibchuk’s claim calls the action a “calculated move to intimidate” him and “force him to leave [the firm’s] employment.”

Mathews Dinsdale should have provided full indemnification for the defamation suit, Jakibchuk claims, because it arose in his capacity as an employee there. Instead, his claim alleges the firm offered him no support and isolated him, thereby forcing him out.

This month, Cowling agreed to drop the defamation suit along with contribution towards Jakibchuk’s legal costs.

In a statement to Law Times, Cowling said he was forced to commence the defamation action “in order to address the attacks on my reputation.”

“In January 2009, serious false allegations were made against me and others at Mathews Dinsdale & Clark by Sarah Diebel and Adrian Jakibchuk and disseminated publicly. I was exonerated but this fact was not made public,” he wrote.

He also provided a copy of a letter from managing partner Richard Baldwin dated Jan. 18, 2011.

“The partners of Mathews Dinsdale & Clark LLP believe that all of the partners present at the 2009 Canadian Labour Arbitration Competition, including Mr. David Cowling, conducted themselves appropriately and acted at all time during the weekend of the competition in an appropriate and professional manner,” it reads.

Cowling said the firm agreed to compensate him and paid the costs for him to discontinue the libel action.

“I have now resigned from the partnership and look forward to moving on in my new firm,” he said in his statement.

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