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Law timeS • September 5, 2011 Lawyers' letters can be perilous BY DANIEL LUBLIN For Law Times E mployees today feel em- powered 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 law- yer'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 re- lationship from the start. Grewal, a branch manager for the Khalsa Credit Union in the Vancouver area, was frequently on the re- ceiving 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 disre- spectful. After continuous friction with Sohi and convinced her job was in jeopardy, Grewal went to see a lawyer. She then sent a de- tailed 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 ran- domly discover that Grewal's personal home mortgage, which she obtained through the credit union, was inputted incorrectly when fi rst entered into the sys- tem. Sohi believed the mortgage contained several irregularities and that Grewal had inappropri- ately received a personal benefi t by obtaining a below-market rate from the credit union. Sohi then authored a memo to the credit union's conduct review commit- tee referring to Grewal's mortgage rate as a "scandal" and raising other issues he had with her per- formance. 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 al- leged 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 inappro- priate, Grewal's lawyer sent a letter accusing him of creating a pretext to dismiss her and claiming the al- leged scandal was nothing more than a minor mistake. Grewal's lawyer then demanded that Sohi provide a written apol- ogy to his client and the credit union's board of directors acknow- ledging that his allegations were baseless and brought in bad faith to harm both her and her reputa- tion. Th e letter, which was copied to the board of directors, ended by threatening to sue Sohi and the credit union if he didn't apolo- gize 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. Su- preme Court Justice Richard Goepel determined that Gre- wal hadn't resigned from her job through her lawyer's letter but nonetheless ruled that it amount- ed to cause for her dismissal in the context of this case. He ruled that the language of the letter was "dis- respectful and infl ammatory" and that it was "not substantiated by the facts." Further, by copying the board of directors, Grewal's law- yer intended to do serious damage to Sohi and permanently under- mined the employment relation- ship, Goepel said. As a result, after 17 years of employment, Grewal was out of luck. Despite the fi ndings in this through their case, employees, lawyers, are still entitled to criti- cize their bosses and their em- ployers without fear of immedi- ate dismissal or a court's fi nding 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 fol- lowing: • Whether the facts can reason- ably demonstrate the conduct the employee is complaining about. In Grewal's case, the judge determined that her law- yer's allegations were unjusti- fi ed. However, had he fi rst sid- ed with Grewal's version of the events, the allegations in the de- mand 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 diffi cult for a lawyer to face blame for ending a re- lationship that has already con- cluded. • Is the letter aiming to pro- voke an argument or does it reasonably assert a legitimate right? Previous cases in Ontario have found that demand letters sent while the employment re- lationship is ongoing will cross the appropriate threshold when they're clearly drafted to make someone look bad rather than correct a problem. Th e case demonstrates the po- tential perils in lawyers' letters. As the fi ndings in this case dem- onstrate, sometimes even lawyers need counsel. Daniel Lublin is a workplace law- yer with Whitten & Lublin LLP. He assists both employers and employees with termination-based disputes and wrongful dismissal litigation. He can be reached at dan@toronto -employmentlawyer.com. COMMENT LSUC pursuing civility at expense of justice BY KIP DAECHSEL For Law Times tion of the Law Society of Upper Canada that should concern all members of our profession. Four years ago, Joseph Groia, a highly re- spected trial lawyer, obtained an acquittal for John Felderhof, chief geologist at the Canadi- an gold company Bre-X Minerals Ltd., on all eight charges brought against him by the On- tario Securities Commission. Th roughout a good part of August, Groia was before a hear- ing of the disciplinary committee on charges that he was uncivil to the point of professional misconduct during Felderhof's trial. Th ese proceedings off end the basic princi- W ples of natural justice and the independence of the judiciary. A fi nding adverse to Groia will send a chilling message to Ontario lawyers that, before vigorously advancing an aggres- sive argument on behalf of their clients, they must fi rst consider their own personal need to avoid off ending third parties who are not even in the room. Th e circumstances leading to these charges Speaker's Corner are highly unusual. Felderhof's lengthy trial was conducted in two stages. It was during the fi rst stage, which lasted for 70 days, that the impugned conduct allegedly took place. Early in the pro- ceedings, Groia, exer- cising his professional judgment in what he determined was in the best interests of his cli- ent, concluded that the prosecution was being driven by a win-at-all-costs mentality and was thereby shirking its duty to ensure that Felder- hof receive a fair trial. As the trial proceeded, Groia drew the trial judge's attention to each example that he felt supported his contention. Th is in- creasingly irritated counsel for the prosecu- tion, who requested that the court order Groia to immediately address the issue by way of a motion before the case proceeded any further. Th e trial judge ruled that Groia was entitled to identify instances that he felt constituted prosecutorial misconduct and to reserve formal argument on the matter to the end of the trial. A second point of friction between the prosecution and the defence was whether oral evidence should be heard before or af- ter the admission of documents. Th e pros- ecution sought to introduce the documents before the witnesses, while the defence re- quested that the order be reversed. After the trial judge ruled in favour of the defence, the prosecutor continued to argue the point, prompting Groia to request that he be found in contempt of court. Th e prosecutor subse- quently apologized for his conduct and there was no fi nding of contempt. Soon after, the prosecution brought an ap- plication before the late justice Archie Camp- bell asking for removal of the trial judge. One of the four grounds for the application was that the trial judge "had failed to restrain the uncivil conduct by defence counsel, thus pro- ducing an unfair trial and creating a reason- able apprehension of bias in the judge." Campbell dismissed the prosecution's ap- plication and ordered the parties to continue the trial with the existing judge. In a lengthy decision, he wrote that "it is not the task of the court on this motion to pass judgment on Mr. Groia's litigation style, unless it aff ects the juris- diction of the trial judge," which, he concluded, was not the case. Having reached this conclu- sion, any additional commentary by Campbell was obiter. Based on his review of the transcripts of the trial, Campbell nevertheless went on to www.lawtimesnews.com hile we are all trying to enjoy what is left of the summer, a proceeding has been taking place at the instiga- note that there were excesses on both sides: the prosecution was perhaps too sensitive to the defence's needling and Groia's otherwise legiti- mate arguments sometimes unnecessarily called into question the prosecution's professional in- tegrity. However, Campbell expressly acknowl- edged that it is not "the task of the court on this application to pick over every word of Mr. Groia's submissions to see if they might be considered off ensive." Th e application before Campbell did not constitute a trial of Groia's conduct — nor should it have — since law- yers in that position are bound to defend the client's interest rather than their own. Conse- quently, the issue of Groia's conduct was never adjudicated in the application, nor was there ever any mention of disciplinary implications for either the prosecution or the defence. In a stunning departure from the legal principle of natural justice — the right to know what you are being charged for and to make your case — the law society has taken the position that Groia's alleged professional misconduct was res judicata, having suppos- edly been established by the court's obiter on the application to remove the trial judge and subsequent appeals. Th e law society even as- serts that it is an abuse of process for Groia to seek his day in court as, in its view, the facts have already been determined. To date in the hearing, the law society has chosen to simply read segments of the court transcript without calling a single witness. It is puzzling that the law society relies on obiter from judges who witnessed none of the im- pugned conduct themselves while eff ectively ignoring the one who saw it all. Not once during the high-pressure proceedings of more than 150 days did the trial judge adversely comment on Groia's conduct. In fact, the law society had not even ordered a copy of the transcripts from the trial before it made the accusations against Groia. Th is complete disregard for the judgment of the trial judge is an aff ront to another fun- damental principle of our legal system: the independence of the judiciary. In the context of a trial, it is the presiding judge who main- tains the balance between the sometimes- competing obligations of defence counsel while maintaining an appropriate level of ci- vility. It is, after all, the trial judge who most understands the context, including the pos- sible basis for the frustration that one counsel may have for the other. It is the trial judge who can most appreciate all of the elements of a given communication — body language, tone, and even volume — that can lend very diff erent meanings to the same set of words. Indeed, taking communications out of con- text by turning obiter into fi ndings and read- ing selective parts of a transcript as evidence is the essence of this proceeding. It now seems that the tidal wave of destruc- tion that followed the collapse of Bre-X has already infl icted further damage. In even al- lowing this proceeding to take place, the law society, the body that more than any other should honour the principles of natural jus- tice and the independence of the judiciary, has fl agrantly failed to do so. If the result is adverse to Groia, a trial judge's determination that counsel's behaviour has not transgressed the boundaries of civility will no longer be conclusive. Trial counsel will have to subordi- nate their obligation to vigorously represent a client to the fear of appearing uncivil to a dis- ciplinary committee that may not even read the transcripts before making an accusation of professional misconduct. To all who have an interest in promoting justice in Canada, this is unacceptable. Kip Daechsel is a Toronto lawyer who has been a member of the law society for more than 27 years. PAGE 7