Law Times

PAGE 4 NEWS September 12, 2011 • Law timeS Firm says it had just cause to fire employee Continued from page 1 "tyrant" and a "sniveling bitch," expressed a desire "to choke him," and compared his appear- ance to an Auschwitz survivor. But in a reply dated July 15, Francis fired back, alleging "it was perfectly acceptable within the firm's culture to make these types of comments using the firm's e-mail system." "It is disingenuous for the partners to plead otherwise," Francis wrote in the reply. "As long as the plaintiff was an em- ployee of Pinkofskys/Rusonik LLP, the act of making what have now been termed dispara- ging remarks was not only ac- ceptable to the partners, particu- larly Reid. They all actively par- ticipated in, openly encouraged, and rewarded such behaviour." Francis provided a string of e-mails sent over the firm's system to back up her claims. Several of them personally at- tack Hershberg in particular. Francis quoted one of them, allegedly from partner Nathan Gorham in October 2008, that reads: "Now you're just a 110 pounder…who's trying to over- compensate for a life of being the runt of the litter." Many of the e-mails quoted by Francis in her reply make overtly homophobic references. One of them, for example, tells two lawyers at the firm that "you two fags were made for each other." In her statement of claim, Francis, claiming Hershberg had attempted to assault her during one incident in 2008, said it was a condition of her re- employment with the firm that she would have minimal contact with him. But in its statement of defence, the firm said there were no preconditions agreed to for Francis' return and denied there had been any actual or at- tempted assault. In her reply, Francis said the alleged incident became fodder for jokes on the e-mail system and that everyone "was allowed to make light of the situation." She also claims in the reply that it wasn't just Hershberg on the receiving end of disparaging remarks from firm partners. She quotes one August 2010 e-mail from Rusonik to her in which he allegedly labelled an articling student "stupid, fat and lazy, Tracy. I like him, mind you, but we ain't going to baby him." In another e-mail in March 2010, Rusonik appeared to lay into a senior partner with Pinkofskys who left when the new firm was formed. "Pretty hard to have a 'firm' of one," Francis' reply quotes Rusonik as writing. "He's seriously delu- sional, he's lazy and he's cheap." In a statement to Law Times, Rusonik said the firm was "fully and vigorously" defending the action. "The passages from the e-mails in question, however much they are accurately quot- ed, are badly out of context," he said. "Moreover, they have ab- solutely nothing to do with the reasons for Ms. Francis's termi- nation." The firm's statement of de- fence also alleged Francis had endangered its reputation by engaging in an "offensive and harmful course of e-mail cor- respondence" with the public, including mocking one of its lawyers in e-mails to a Crown attorney and suggesting another student had been "dropped on her head as a baby" in a message to an assistant. But once again, Francis re- plied that the firm's partners were the ones putting its repu- tation at risk with their e-mailed comments about members of the bar and judiciary. Francis quotes an April 2010 e-mail in which partner Chris- tian Angelini allegedly called an Ontario Court judge a "useless tit." Later in the same conver- sation, another partner, Liam O'Connor, allegedly chimed in on the same judge: "the zoo is aware he has escaped and are sending a search and rescue party over immediately." According to Francis' reply, Rusonik then add- ed: "Wrong. The other chimps expelled him!" In another e-mail excerpt provided by Francis, Rusonik allegedly called a criminal law- yer at another firm a "skank." In addition to her allegedly disparaging remarks, the law firm claims it had cause to termi- nate Francis for disclosing con- fidential and privileged informa- tion. According to its statement of defence, Francis told an ar- ticling student he wouldn't be hired back before the firm had communicated the decision to him; told a salaried lawyer he was about to be transferred to a cost-share agreement without authority; and sent e-mails to outside firms containing propri- etary precedent documents. In her reply, Francis denied the allegations and claimed they were concocted in an "attempt to retaliate" against her for bringing the action. MASTER INVESTIGATIVE TECHNIQUES PROFESSIONAL GUIDEBOOK CHRISTOPHER J. MENARY Things came to a head at the firm on Nov. 1, 2010, when Ru- sonik confronted Francis in her office. She said she explained her position to Rusonik but was told she was being laid off and escorted from the building. As a law firm, it should have provided her with a letter advis- ing her of her termination "in- stead of acting in a hostile man- ner and yelling," Francis wrote in her claim. In its statement of defence, the firm denies the mood of the meeting was hostile and says Francis failed to explain her al- leged misconduct. Francis ad- mitted she "knew this was com- ing" and had already packed her belongings, the firm alleged in its defence. Despite having just cause to terminate Francis, it says it gave her a cheque worth nine weeks of pay as a gratuit- ous payment. In addition, the firm's defence maintains that her claim for 12 months' pay in lieu of notice is excessive. Francis declined to speak about the matter while the case is before the courts. LT Profession facing 'new paradigm' Continued from page 1 awareness about competition issues among regulators and praised the legal profession in particular for its action on jurisdictional mobility since the 2007 report. The 2010 Quebec Mobility Agreement, facilitated by the Federation of Law Societies of Canada, allowed lawyers from Quebec to operate in provinces and territories across the country on special licences. Earlier agreements had paved the way for non-Quebec lawyers to practise in that province on a similar basis. The assessment also highlighted changes to the federation's model code of professional conduct. They loosened restrictions historically placed on lawyer advertising in many provinces. Still, the assessment noted, "The level of consideration that self-regulating professional bodies give to competition issues in the development and review of their regulations is not al- ways as comprehensive as it should be." The 2007 report also said Canada's professions were suffering from low productivity and recommended reduced regulation in all sectors. Apart from the recommendations on mobility and adver- tising, the Competition Bureau suggested self-regulation for paralegals. The report was critical of the Law Society of Upper Canada's takeover of paralegal regulation. Instead, it urged it to rethink the move "given the obvious conflict of interest that arises from having one competitor regulate another." In addition, the report suggested a reduction in the length of WITHIN THE BOUNDARIES OF THE LAW NEW PUBLICATION THE CANADIAN PRIVATE INVESTIGATOR'S Protect yourself with a clear understanding of the best practices and laws used in the fields of private investigations and security. The Canadian Private Investigator's Professional Guidebook helps you perform your duties effectively within the boundaries of the law. 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A BENCHMARK FOR DEALING WITH EVERYDAY PRACTICE ISSUES Topics covered include: • Anton Piller Orders • Arrests • Background Checks • Bail • Charter of Rights and Freedoms • Criminal Code of Canada • Evidence • Freedom of Information • Privacy law articles, allowing compensation to non-lawyers for referrals, and an expansion of the areas where contingency-fee agreements are an option. In a 2008 written reply to the report, the federation mounted a stiff defence of the profession. It cast doubt, for example, on the premise that productivity is low in the legal profession and insisted that the marketplace "fails to provide compelling evidence of ser- ious concern about a lack of competition in the legal profession." At the same time, federation president Ronald MacDonald says the steps the profession has taken in terms of lawyer mo- bility and loosening advertising restrictions have been "very significant" for fostering competition. "I think we've done as much as can be done," he tells Law Times. Such responses are problematic, according to another legal academic. "Rather than welcoming the idea of additional scrutiny and how the profession might be made more open, the mandate seemed to be to respond with a view to the status quo," says Paul Paton, a law professor at the University of the Pacific's McGeorge School of Law and former chairman of the Canadian Bar Association's national ethics and professional responsibility committee. "For regulators to stand in the way of innovation that is in the consumer interest is a bit inconsistent. I think masking professional self-interest as the public interest can only lead to problems." Paton also believes Canadian regulators should be paying attention to the situation in Britain. "The failure there to take the consumer into account led to both radical transformation and the effective end of self-regulation," he says. Nevertheless, Paton hopes the report will encourage regu- lators to continue engaging in the discussion about competi- tive restrictions. "It's a new paradigm. The transformation of practice around the world in the last five years has been pro- found and that has important implications. There are serious issues with unmet legal needs, and I think taking more cre- ative approaches to how the market for legal services might respond to that in the Canadian context would be a welcome development." LT Untitled-4 1 www.lawtimesnews.com 11-09-08 11:38 AM

• Cover
• Rights Probes
• Echlins Legacy
• Focus On Human Rights Law