Speaker's Corner: Lawyers’ letters can be perilous

Employees today feel empowered to complain. When upset about their bosses or their jobs, they no longer visit their doctors seeking a note for a leave of absence. Instead, they just call their lawyers.

But what happens when a lawyer’s letter goes too far? One B.C. employee recently found out the hard way.

Sukhwinder Grewal and her boss Dalbir Sohi had a rocky relationship from the start. Grewal, a branch manager for the Khalsa Credit Union in the Vancouver area, was frequently on the receiving end of letters from Sohi criticizing her work.

Believing that his letters were unwarranted and that Sohi was trying to build a case against her, Grewal often responded with letters of her own in which she defended herself and her actions. Sohi viewed those letters as insubordinate and disrespectful.

After continuous friction with Sohi and convinced her job was in jeopardy, Grewal went to see a lawyer. She then sent a detailed letter drafted by her lawyer to Sohi responding to several of his complaints and pointing out ways to improve the relationship. Again, Sohi viewed this letter as insubordinate and a challenge to his authority.

Soon after, matters came to a head when Sohi claimed to randomly discover that Grewal’s personal home mortgage, which she obtained through the credit union, was inputted incorrectly when first entered into the system.

Sohi believed the mortgage contained several irregularities and that Grewal had inappropriately received a personal benefit by obtaining a below-market rate from the credit union.

Sohi then authored a memo to the credit union’s conduct review committee referring to Grewal’s mortgage rate as a “scandal” and raising other issues he had with her performance. However, before Sohi could question Grewal about her mortgage, she left work on a medical leave.

When Grewal later returned to work, she learned that during her leave Sohi had disclosed her alleged mortgage scandal during the credit union’s governance hearing and that her name subsequently appeared in a public document linking her to it.

Believing that Sohi’s actions in publicizing the alleged fraud were highly inappropriate, Grewal’s lawyer sent a letter accusing him of creating a pretext to dismiss her and claiming the alleged scandal was nothing more than a minor mistake.

Grewal’s lawyer then demanded that Sohi provide a written apology to his client and the credit union’s board of directors acknowledging that his allegations were baseless and brought in bad faith to harm both her and her reputation.

The letter, which was copied to the board of directors, ended by threatening to sue Sohi and the credit union if he didn’t apologize quickly. Sohi wasn’t prepared to apologize and the credit union later responded on his behalf claiming that, through her lawyer’s letter, Grewal had just resigned.

At a recent trial in Grewal v. Khalsa Credit Union, B.C. Supreme Court Justice Richard Goepel determined that Grewal hadn’t resigned from her job through her lawyer’s letter but nonetheless ruled that it amounted to cause for her dismissal in the context of this case.

He ruled that the language of the letter was “disrespectful and inflammatory” and that it was “not substantiated by the facts.” Further, by copying the board of directors, Grewal’s lawyer intended to do serious damage to Sohi and permanently undermined the employment relationship, Goepel said. As a result, after 17 years of employment, Grewal was out of luck.

Despite the findings in this case, employees, through their lawyers, are still entitled to criticize their bosses and their employers without fear of immediate dismissal or a court’s finding of just cause. However, the message to lawyers who draft those demand letters is that there’s a limit on what the courts will tolerate. As a result, lawyers should consider the following:

•    Whether the facts can reasonably demonstrate the conduct the employee is complaining about. In Grewal’s case, the judge determined that her lawyer’s allegations were unjustified. However, had he first sided with Grewal’s version of the events, the allegations in the demand letter wouldn’t have cost her the case.

•    Is the letter being sent while the employment relationship is ongoing or after it’s already over? It’s difficult for a lawyer to face blame for ending a relationship that has already concluded.

•    Is the letter aiming to provoke an argument or does it reasonably assert a legitimate right? Previous cases in Ontario have found that demand letters sent while the employment relationship is ongoing will cross the appropriate threshold when they’re clearly drafted to make someone look bad rather than correct a problem.

The case demonstrates the potential perils in lawyers’ letters. As the findings in this case demonstrate, sometimes even lawyers need counsel.

Daniel Lublin is a workplace lawyer with Whitten & Lublin LLP. He assists both employers and employees with termination-based disputes and wrongful dismissal litigation. He can be reached at [email protected].

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