Canada’s largest criminal defence firm is facing a $200,000 wrongful dismissal lawsuit from a former employee who claims it fired her for making the same kinds of disparaging remarks she alleges were routine among partners there.
In a statement of claim dated March 30, Tracy Francis demands $106,550 in damages from Toronto-based Rusonik O’Connor Robbins Ross Gorham & Angelini LLP for wrongful dismissal to cover her wages and benefits for 12 months.
The lawsuit is also seeking $85,000 in moral damages for the manner of her firing, which Francis alleges caused her mental distress and left her unable to sleep.
“The plaintiff has experienced hair loss, panic attacks, and clinical symptoms of depression,” Francis alleges in the claim.
The firm denies all of the allegations, none of which have been proven in court.
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.
But 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 with
Rusonik as the new principal.
According to the firm’s statement of defence filed on May 4, it terminated Francis for cause. The firm alleges she failed to adequately perform assigned tasks and instead “devoted herself nearly exclusively to attempting to manipulate the students” working at the firm.
Francis, the firm claims, 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 alleges Francis singled out partner Jeff Hershberg for particular abuse in e-mail correspondence with two associates.
It claims Francis called Hershberg a “tyrant” and a “sniveling bitch,” expressed a desire “to choke him,” and compared his appearance to an Auschwitz survivor.
But in a reply dated July 15, 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, particularly Reid. They all actively participated in, openly encouraged, and rewarded such behaviour.”
Francis provided a string of e-mails sent over the firm’s system to back up her claims. Several of them personally attack Hershberg in particular.
Francis quoted one of them, allegedly from partner Nathan Gorham in October 2008, that reads: “Now you’re just a 110 pounder…who’s trying to overcompensate for a life of being the runt of the litter.”
Many of the e-mails quoted by Francis in her reply make overtly homophobic references. One of them, for example, tells two lawyers at the firm that “you two fags were made for each other.”
In her statement of claim, Francis, claiming Hershberg had attempted to assault her during one incident in 2008, said it was a condition of her re-employment with the firm that she would have minimal contact with him.
But in its statement of defence, the firm said there were no preconditions agreed to for Francis’ return and denied there had been any actual or attempted assault.
In her reply, Francis said the alleged incident became fodder for jokes on the e-mail system and that everyone “was allowed to make light of the situation.”
She also claims in the reply that it wasn’t just Hershberg on the receiving end of disparaging remarks from firm partners. She quotes one August 2010 e-mail from Rusonik to her in which he allegedly labelled an articling student “stupid, fat and lazy, Tracy. I like him, mind you, but we ain’t going to baby him.”
In another e-mail in March 2010, Rusonik appeared to lay into a senior partner with Pinkofskys who left when the new firm was formed. “Pretty hard to have a ‘firm’ of one,” Francis’ reply quotes Rusonik as writing. “He’s seriously delusional, he’s lazy and he’s cheap.”
In a statement to Law Times, Rusonik said the firm was “fully and vigorously” defending the action. “The passages from the e-mails in question, however much they are accurately quoted, are badly out of context,” he said. “Moreover, they have absolutely nothing to do with the reasons for Ms. Francis’s termination.”
The firm’s statement of defence also alleged Francis had endangered its reputation by engaging in an “offensive and harmful course of e-mail correspondence” with the public, including mocking one of its lawyers in e-mails to a Crown attorney and suggesting another student had been “dropped on her head as a baby” in a message to an assistant.
But once again, Francis replied that the firm’s partners were the ones putting its reputation at risk with their e-mailed comments about members of the bar and judiciary.
Francis quotes an April 2010 e-mail in which partner Christian Angelini allegedly called an Ontario Court judge a “useless tit.”
Later in the same conversation, another partner, Liam O’Connor, allegedly chimed in on the same judge: “the zoo is aware he has escaped and are sending a search and rescue party over immediately.” According to Francis’ reply, Rusonik then added: “Wrong. The other chimps expelled him!”
In another e-mail excerpt provided by Francis, Rusonik allegedly called a criminal lawyer at another firm a “skank.”
In addition to her allegedly disparaging remarks, the law firm claims it had cause to terminate Francis for disclosing confidential and privileged information.
According to its statement of defence, Francis told an articling student he wouldn’t be hired back before the firm had communicated the decision to him; told a salaried lawyer he was about to be transferred to a cost-share agreement without authority; and sent e-mails to outside firms containing proprietary precedent documents.
In her reply, Francis denied the allegations and claimed they were concocted in an “attempt to retaliate” against her for bringing the action.
Things came to a head at the firm on Nov. 1, 2010, when Rusonik confronted Francis in her office. She said she explained her position to Rusonik but was told she was being laid off and escorted from the building.
As a law firm, it should have provided her with a letter advising her of her termination “instead of acting in a hostile manner and yelling,” Francis wrote in her claim.
In its statement of defence, the firm denies the mood of the meeting was hostile and says Francis failed to explain her alleged misconduct. Francis admitted she “knew this was coming” and had already packed her belongings, the firm alleged in its defence.
Despite having just cause to terminate Francis, it says it gave her a cheque worth nine weeks of pay as a gratuitous payment. In addition, the firm’s defence maintains that her claim for 12 months’ pay in lieu of notice is excessive.
Francis declined to speak about the matter while the case is before the courts.
For previous stories on the firm and its name change, see "Criminal firm changes approach, ID."