Law Times

Law Times • November 14, 2011 Case a classic 'he said-she said' Continued from page 1 in Law Society of Upper Canada v. Neinstein. "Th e complainants testifi ed about various acts of sexual harassment. Th e appellant denied those acts had occurred. Other witnesses were called, and while their evidence was important, it was clearly secondary to the evidence of the main protagonists." C.T. met and retained Neinstein in 1988 while he was repre- senting her brother in an accident case she was also involved in. She claimed Neinstein was "overly friendly" toward her, made sexual comments, and touched her inappropriately. She also al- leged the pair had a consensual sexual relationship from August 1990 to mid-December of the same year. After her brother's lawsuit was settled in 1997, she complained to the LSUC. Neinstein denied all of the allegations, including consensual sex. He testifi ed that C.T. continued to retain him until 1994 when he settled her claim. He also said that while he had done his best for her, there were "signifi cant problems" with her ac- cident claim. Th e second complainant in the case, S.G., also claimed Neinstein had made inappropriate comments and gestures to- ward her while she worked at his fi rm from September 1990 to May 1991. Neinstein denied the allegations. One of the many odd twists in the case included the fact that Steve Ellis, a former Immigration and Refugee Board ad- judicator, was a lawyer at Neinstein's fi rm at the time S.G. al- leged the sexual harassment took place. Ellis himself faced al- legations that he had attempted to extract sexual favours from a South Korean refugee claimant and received a sentence of 18 months in jail following his highly publicized trial last year. S.G. claimed she mentioned Neinstein's alleged sexual harass- ment to Ellis, but he denied he spoke to her about it. Prior to this unusual twist of fate, Doherty ruled in March of last year that the original LSUC hearing panel had failed to give reasons as to why it had rejected Neinstein's version of the events. Noting the panel had "eff ectively excluded a large body of evidence from its credibility analysis," Doherty said its rea- sons for its fi ndings were gravely inadequate and made an ap- peal review impossible. In yet another unusual twist, the original hearing panel that heard Neinstein's case in 2004 came under fi re for the actions of one of its members, Ottawa lawyer George Hunter. In 2007, Hunter, also a former LSUC treasurer, was found guilty of pro- fessional misconduct over a sexual aff air he had with one of his clients at the same time he was hearing Neinstein's case. He re- ceived a 60-day suspension. But Doherty, while critical of the panel's lack of reasons, noted that accepting allegations of bias by Hunter would be stretching "the concept of a reasonable apprehension of bias be- yond all practical limits." Doherty went on to allow Neinstein's appeal of an earlier Di- visional Court judgment that had restored his disbarment and sent the case to a new hearing with a diff erent panel. In keeping with the case's strange twists and turns, nearly seven months before the LSUC dropped the sexual harassment matter, it issued an additional and unrelated set of professional misconduct allegations. "A notice of application was issued in March 2011," says Tonkin. "Hearing dates are scheduled for the week of May 7, 2012." For his part, Greenspan says the matter is currently at the disclosure stage. "At this point, we have not provided any re- sponse," says Greenspan of the new allegations. "But any sug- gestion of improper conduct will be vigorously defended." Th e LSUC alleges Neinstein engaged in professional mis- conduct by accepting retainers from six clients, all of whom were involved in a car accident and one of whom suff ered inju- ries. According to the law society, the situation created several confl icts for Neinstein. He allegedly helped two of the six clients, M.D. and V.B., re- tain attorneys for personal care while representing V.B. and an- other client, E.M., in an application to appoint them as guard- ians of the person and property of his client, M.D., in 2010. "After all these years and all the attention, it's regrettable that he had to be exposed to that," says Greenspan. "He has a long and admirable reputation and has served his clients ad- mirably." 2004 Gary Neinstein's long legal battle with LSUC 2008 LSUC hearing panel disbars Gary Neinstein for the alleged sexual harassment of two women. 2005 Neinstein appeals panel's decision. Appeal panel orders new hearing. 2007 Divisional Court allows LSUC's appeal of the 2005 decision. Neinstein's disbarment is reduced to a 12-‐ month suspension. Neinstein files cross-‐appeal of the suspension. Divisional Court reduces his suspension to three months. 2010 Ontario Court of Appeal rules original hearing panel that disbarred Neinstein was highly flawed. Sends matter to a different panel for review. 2011 LSUC withdraws allegations of sexual harassment against Neinstein at the request of LSUC counsel. NEWS PAGE 5 Gov't says restraint about 'respect for public money' Continued from page 1 months prior. Th ree months later, the act took eff ect with a provision that allowed the Trea- sury Board to set out increases in federal em- ployee pay. Th e changes meant federal employees would get an increase of 2.5 per cent in the 2006-07 fi scal year; 2.3 per cent in 2007-08; and 1.5 per cent in the three subsequent years. Th ose actions, according to Mendicino, pre- vented the association from establishing an ini- tial collective bargaining agreement. Th e new court ruling, he believes, is timely given bill C-10 and its provisions to crack down on crime. In his view, the legislation will show how hard federal Crowns work. "We welcome a bit of positive news against a challenging bargaining climate," says Mendici- no. "Th e timing couldn't really be better, though, in terms of the justice subcommittee hearings on the C-10 bill, which would ultimately result in more work. We are already working at full tilt, so the fact that prosecutors are seeing more charges than ever and the new crime bill is only going to add more is important." In the meantime, the Superior Court ruling upholds collective bargaining while at the same time recognizing its limits, says Barbara Nich- olls of Low Murchison Radnoff LLP in Ottawa. "I think it's a well-reasoned decision recogniz- ing that collective bargaining can be protected by s. 2 of the Charter," says Nicholls. "What's very interesting is that it was found the ERA went too far with 2006 and 2007 because it predated the economic climate." Th e ruling could also give the association an opportunity to bargain further, says Nicholls. "It looks to give them a step up to reduce the gap that they were caught under with the ERA, particularly because of the 2006 and 2007 dates predating the poor economic climate." In submissions to the Superior Court, coun- sel for the attorney general argued the act "was enacted as part of the strategy of combating a complex problem" and that "determining the appropriate response to a global economic cri- sis requires a consideration of factors within the specifi c institutional competence of Parliament and the executive." Government counsel noted the act was a response to the economic climate at the time and was a bid to "reduce the upward pressure on wages in the private sector" while providing "leadership through restraint and respect for public money." In light of the ruling, the Treasury Board will review the decision and "determine the appro- priate course of action required in the near fu- ture," says spokeswoman Anabel Lindblad. Mendicino notes a government appeal of the ruling would postpone a fi nal resolution of the Crowns' contract dispute. "Ultimately, we would want the Treasury Board to look at this issue more," he says. "We're always prepared to listen." STEER YOUR CLIENTS WISELY ON A DECISION TO TERMINATE NEW PUBLICATION YOU'RE FIRED! JUST CAUSE FOR DISMISSAL IN CANADA STUART E. RUDNER Do grounds exist these days to justify terminating an employee for cause? Assess the particular circumstances of a case by quickly accessing previously considered allegations of just cause for dismissal in this indispensable new publication. You're Fired! Just Cause for Dismissal in Canada clarifies the types of behaviours that can constitute just cause for dismissal. Written by a practising employment lawyer, this new title combines a thorough review of the law with case law summaries in print and on an accompanying CD-ROM which links you to full text decisions. EXPERIENCE THE BENEFITS • Recognize what is – and what isn't – just cause for dismissal • Determine whether summary dismissal is an appropriate route for your company or client to take • Quickly see how the courts have treated comparable or similar situations • Help clients avoid a breach of human rights legislation • Advise on strategic policies and procedures to limit a company's potential liability • Prepare for trial more efficiently • Stay on top of the latest just cause case law ORDER # 982890-62365 $225 2 volume looseleaf supplemented book + CD-ROM August 2011 1-2 supplements per year Supplements invoiced separately 978-0-7798-2890-6 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 www.lawtimesnews.com

• Cover
• IBA Censored?
• Law Matures
• Focus On Labour and Employment Law