Law Times

PAGE 4 NEWS More complaints than stats show Continued from page 1 law fi rm over allegations of sexual harassment or dis- crimination. McCarthy Tétrault LLP, for example, is currently defending a $12-million action by a former lawyer at the fi rm, Diane LaCalamita. She claims the fi rm re- neged on an agreement to make her an equity part- ner and artifi cially restricted her intellectual property practice before her dismissal. Th e fi rm 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. Th en earlier this year, Oslers' New York offi ce received a sexual discrimination claim from a Canadian who said the fi rm fi red 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 spokes- woman for Oslers revealed to Law Times that the ac- tion is now over. "Th e 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 re- cently attempted to gauge the extent of the discrimination problem in that province by asking female lawyers to send anonymous postcards detailing experiences in their prac- tices. 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 offi ce performs a similar role. Members of the public or lawyers can anonymously con- tact her to report cases of discrimination or harassment by law society members on any grounds. She briefs complain- ants on their options and points them in the direction of the most suitable forum to advance their concerns. Th at can include an application to the Human Rights Tribunal of Ontario, an internal process at work or mediation. In the fi rst six months of 2010, Petersen received 40 complaints, a record high. Th at fi gure 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 fel- low members of the bar. But Petersen says the fi gures can't precisely measure the prevalence of sexual harass- ment in the profession in Ontario. "Th e 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. Th ere is a persis- tent problem. It has clearly improved over a period of decades, but I don't know if there's been an improve- ment over the last few years." Despite an explosion in the number of female lawyers and eff orts 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 profes- sion, we have got to have a workplace that is safe." According to Symes, fi rms can take precautions to minimize the chances of trouble. Still, she acknowl- edges it may require a cultural shift for some. "A party with unlimited drinking of employees is sort of a reci- pe 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." April 18, 2011 • lAw Times Immunity applied to all witnesses Continued from page 1 LLP says there's a distinction between counsel and experts. "It is true that there is logic to saying that expert witnesses' immunity from suit is not justifi ed when advocates no longer have that immunity," he says. "However, it must be remembered that there is a strong move to recognize that expert witnesses have a primary duty to the court or arbitral tribunal. From that perspective, the result is somewhat of a less comfortable fi t." As well, Forbes notes that the principle of abso- lute immunity has historically applied to all witness- es, not just experts. "I'm surprised that the Supreme Court would carve out an exception for experts in- stead of trying to narrow the breadth of the immu- nity in general," she tells Law Times. Forbes cites the issue of child custody assessors in family law cases facing lawsuits by the losing parent. "Even where the immunity exists, the experts have to hire a lawyer and spend time, money, and emo- tional energy to defend themselves," she says. Th e expert immunity rule came before the On- tario Court of Appeal in the 2007 case of Reynolds v. Kingston (Police Services Board) that dealt with the in- famous Ontario forensic pathologist Charles Smith. "Th e Court of Appeal decided that the matter should not be determined on a preliminary motion, but the bench confi rmed that the rule was well-established in the common law on the basis that the proper ad- ministration of justice requires that witnesses have no fear of retaliatory suits," Forbes says. As she points out, the core issue that the Court of Appeal left to the trial judge was whether Smith's conduct fell within the scope of the protection rather than whether the immunity existed. "I believe that Canadian courts will try to nar- row the scope of the immunity instead of carving out categories of witnesses who aren't subject to it," she says. 3 former LSUC Treasurers 14 Benchers and former Benchers 10 Law Society Medal Recipients MALCOLM M. MERCER FOR HUNDREDS OF SUPPORTERS INCLUDING: BENCHER TORONTO REGION www.mercerbencher.ca Untitled-2 1 2/25/11 12:54:47 PM www.lawtimesnews.com Untitled-4 1 4 former CBA National Presidents 1 former Premier 1 former Leader of the Opposition 1 former Deputy Prime Minister Different perspectives and abilities are required for the Law Society to fulll its obligations to society and to the profession. Please support Malcolm Mercer for bencher. Malcolm's expertise in professional responsibility and his managerial experience will make his contribution as bencher invaluable. 4/14/11 12:37:02 PM

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• Alleged Discrimination
• Troubled System
• Focus On IT/Telecommunications