Will harassment case deter complaints?

As Osler Hoskin & Harcourt LLP confirms a sexual discrimination claim against it has been resolved, the Law Society of Upper Canada’s discrimination and harassment counsel fears the storm at another firm, Mathews Dinsdale & Clark LLP, could deter future complainants from bringing their concerns forward.

David Cowling, then a partner at Mathews Dinsdale, eventually sued two associates for defamation after they accused him of inappropriate sexual conduct in the wake of a wild open-bar party to celebrate the end of a labour arbitration moot competition in 2009.

Cowling has since dropped the defamation action, which he says was necessary to protect his reputation, and left the firm earlier this month with compensation and a declaration from the managing partner that he had conducted himself “appropriately and acted at all times during the weekend of the competition in an appropriate and professional manner.”

But Cynthia Petersen, who accepts anonymous complaints from people who believe law society members have harassed or discriminated against them, says the public glare attracted to the case following the launch of the lawsuit could deter potential complainants, many of whom are already reticent, from making their concerns known.

“The defamation action that was brought by the alleged harasser in that case could certainly have a chilling effect on people making complaints,” Petersen says.

However, she also says it’s important to remember that it’s rare for a complaint to have such public repercussions for the complainant. “I understand the fear that people experience, especially if they’re relatively junior in the

hierarchy of their employment,” Petersen says. “They feel vulnerable, and I don’t want to be dismissive of that vulnerability. But I certainly don’t want people to be so fearful that they don’t assert their rights. I try to help people feel empowered and not be afraid of any negative repercussions.”

Beth Symes, who represented Sarah Diebel, the second-year associate whose complaint sparked the furor at Mathews Dinsdale, says her client should have had protection from a defamation action by qualified privilege because she followed the rules set out in the firm’s sexual harassment policy. She also worries about a chilling effect for women in similar situations.

“Often in such situations, the woman has either been forced out or has withdrawn from that work situation, so she lacks the means to mount a defence,” she says. “In this case, it’s been very expensive to the two young lawyers involved and not just out of pocket. They’ve both left the firm under very difficult circumstances, and that’s a very high price to pay.”

Diebel resigned from Mathews Dinsdale in June 2009, while Adrian Jakibchuk, the second defendant in Cowling’s lawsuit, was still working for the firm when he was served with the claim in March 2010. He left the firm two months later and has now launched his own lawsuit against it alleging wrongful dismissal. Mathews Dinsdale denies the allegations, which have not been proven in court.

The mess at Mathews Dinsdale isn’t the only recent high-profile run-in for a Canadian law firm over allegations of sexual harassment or discrimination.

McCarthy Tétrault LLP, for example, is currently defending a $12-million action by a former lawyer at the firm, Diane LaCalamita. She claims the firm reneged on an agreement to make her an equity partner and artificially restricted her intellectual property practice before her dismissal.

The firm has denied the allegations of discrimination and says LaCalamita was simply not up to the job. She “never performed at the level required for admission to equity partnership,” McCarthys said in its statement of defence.

Then earlier this year, Oslers’ New York office received a sexual discrimination claim from a Canadian who said the firm fired her for complaining about a senior lawyer who fostered a working environment “that was hostile and demeaning towards women.”

Jaime Laskis alleged in her claim that the lawyer had joked about oral sex and said he hated working with women because “they just get pregnant and leave.” She also claimed he froze her salary following a performance review in which he told her she needed to be “more than a pretty face.”

None of the allegations were proven, and a spokeswoman for Oslers revealed to Law Times that the action is now over. “The matter has been resolved, the action has been discontinued, and we have no further comment,” Nanette Matys, Oslers’ director of business development, said in a statement.

In the meantime, the Nova Scotia Barristers’ Society recently attempted to gauge the extent of the discrimination problem in that province by asking female lawyers to send anonymous postcards detailing experiences in their practices. More than 40 of them answered the call.

“Some of the stories that were reported were quite startling and quite dramatic. Others were more subtle,” says president Marjorie Hickey.

“We’d been hearing a lot of anecdotal information, and this was a way to get some more concrete evidence to determine what kind of initiatives or programs might be developed to address some of the issues members were experiencing.”

In Ontario, Petersen’s office performs a similar role. Members of the public or lawyers can anonymously contact her to report cases of discrimination or harassment by law society members on any grounds.

She briefs complainants on their options and points them in the direction of the most suitable forum to advance their concerns. That can include an application to the Human Rights Tribunal of Ontario, an internal process at work or mediation.

In the first six months of 2010, Petersen received 40 complaints, a record high. That figure fell to 33 for the second half of 2010, according to the most recent data reported to Convocation earlier this year.

Of those complaints, 16 listed sex as a ground, including four allegations of sexual harassment by lawyers against fellow members of the bar. But Petersen says the figures can’t precisely measure the prevalence of sexual harassment in the profession in Ontario.

“The data I get is probably generally representative of the types of problems that exist, but I’m sure there are more complaints out there that I don’t see,” she says.  

While there has been progress over the years, Petersen says she can’t be so sure about more recent times. “I still receive a number of reports every year. There is a persistent problem. It has clearly improved over a period of decades, but I don’t know if there’s been an improvement over the last few years.”

Despite an explosion in the number of female lawyers and efforts such as the LSUC’s Justicia project, Symes says discrimination remains a problem for the law society.

“What we know publicly is that women are leaving the profession in droves, and these kinds of situations don’t make it any better. In order to keep women in the profession, we have got to have a workplace that is safe.”

According to Symes, firms can take precautions to minimize the chances of trouble. Still, she acknowledges it may require a cultural shift for some. “A party with unlimited drinking of employees is sort of a recipe for disaster.

We spend quite a lot of time educating our clients about structural steps to take to avoid hot-house situations. It appears as though that message has been forgotten or needs to be repeated.”

For more on this story, see "Associate sued Mathews Dinsdale for $1.3M."

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