Levitt: Harassment instances between attorneys can attain unrivalled heights

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No person fights like attorneys aside from, maybe, different attorneys. And harassment instances between attorneys can attain unrivalled heights.

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“Harassment” has turn out to be a lot talked about however little understood. What’s harassment to some is “a day within the workplace” to others. Workers typically file harassment complaints defensively, in response to justified self-discipline, hoping to derail that course of. Others imagine they’re being “harassed,” and definitely really feel harassed however, to the common particular person, they’re merely overly delicate and thin-skinned. Harassment within the office, corresponding to to be actionable in negligence, constructive dismissal or a violation of the Occupational Well being and Security Act, should be objectively insupportable to an inexpensive particular person. Regardless of one case which discovered continuous unfounded self-discipline to be a constructive dismissal, typically employers are permitted to self-discipline with out danger of legal responsibility, so long as they conduct it in good religion.

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Along with the varied kinds of civil harassment that one can sue for, harassment may also be a felony offence.

Again to catfights amongst attorneys: Are you able to think about this scene, which was replayed earlier than Choose Alain Bergen of the Nova Scotia courtroom, occurring in another office?

Mary Jane Saunders was on the administration committee of the New Glasgow regulation agency Mac, Mac & Mac (sure, actually).

Saunders had been beneficial by a senior associate and head of litigation, Donn Fraser, to take a seat on the committee at a time when the regulation agency was liable to dissolving. She knew there have been critical points and divisions and that a part of her duties in coping with disputes can be disagreeable. Though antagonistic to battle, she was conscious that operating a regulation agency may very well be confrontational. She additionally knew that Mac, Mac & Mac had an open-door coverage of assembly in particular person to unravel issues.

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In March 2020, Saunders famous a change in behaviour by Fraser. He had outbursts at associate conferences, though he was not the one one who did. She turned fearful, not eager to be close to him. By August, she was afraid to go to associate conferences if he attended, though she by no means suggested him of her concern. In equity, Fraser had by no means raised his voice to her and made no threats to her or to anybody else.

By late Could 2021, the battle strains had been drawn, with Fraser threatening to sue Saunders and the opposite companions and Saunders submitting a grievance towards Fraser to the Barristers Society.

She had requested him to not come to the workplace on Could 24, 2021, informing him that each one communications between them should be by e mail and warned that she would name the police if he attended. She had threatened this earlier than however, on these earlier events, he had nonetheless attended her workplace they usually resolved their points with out incident. On Could 26, he attended once more, her workplace door was open and, from the doorway, he said: “Reply the query MJ.”

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This query associated to the timing of a particular companions assembly to debate associate attracts. Saunders was required to tell Fraser of this however had not. Slightly than answering his query, Saunders responded, “Donn, I advised you what I might do,” proceeded to behave on her menace and known as 911. Fraser entered her workplace and sat down. Notably, Saunders by no means requested Fraser to go away.

Whereas she known as 911, Fraser stored repeating, “Reply the query, it’s a easy query.”

When the police arrived, they obtained into an argument with Fraser. He questioned their proper to be there and requested in the event that they wished a replica of the Felony Code. Each the police and Fraser raised their voices.

Fraser was charged with “felony harassment.”

Because the courtroom famous, “Saunders agreed that by calling 911 she may make Mr. Fraser indignant. And she or he additional agreed that by doing so she was ready to escalate the scenario. These aren’t the actions of somebody who’s afraid, however the actions of somebody who’s indignant.”

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There may be a lot speak in workplaces of harassment and what meets that check. In fact, felony harassment is extra critical and requires even a better diploma of proof than harassment for constructive dismissal or beneath the Occupational Well being and Security Act.

The courtroom famous in its determination, in figuring out what harassment meant, that being “vexed, disquieted, troubled, frightened badgered or irritated” just isn’t equal to being “harassed.”

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The courtroom discovered that Fraser didn’t have interaction in threatening conduct however was looking for a solution to a official work-related query and {that a} cheap particular person wouldn’t discover his behaviour objectively threatening. As properly, he had lawful authority to attend her workplace to acquire a solution, as he had achieved up to now.

The courtroom discovered additionally that Fraser had no purpose to imagine that his conduct can be perceived as harassing. Lastly, not solely did the courtroom not discover, as required, that Saunders’ concern of Fraser was cheap, however discovered that she didn’t concern for her security and that it was Saunders, not Fraser, who escalated the scenario by calling 911 with out even ever asking him to go away her workplace. Fraser was accordingly acquitted.

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A cautionary notice: Employer purchasers typically ask about charging an worker criminally for explicit infractions, normally ones involving fraud. They typically accomplish that for leverage. It’s a harmful sport.

This determination is likely embarrassing for Saunders and one ought to by no means be fast to invoke the police in any case except the proof is incontrovertible. An employer or co-worker calling the police on one other worker dangers being sued for malicious prosecution in addition to having a falsely accused worker declare constructive dismissal or claiming harassment themselves and suing civilly.

Claims for harassment, civil or felony, except correctly established with acceptable proof can simply backfire, each in a regulation agency or in any office.

Bought a query about employment regulation? Write to Howard at [email protected].

Howard Levitt is senior associate of Levitt Sheikh, employment and labour attorneys with workplaces in Toronto and Hamilton. He practices employment regulation in eight provinces. He’s the writer of six books together with the Regulation of Dismissal in Canada. Kathryn Marshall is a associate with Levitt Sheikh.

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