Executive Summary

Since when is it okay to ‘go after the victim’ of harassment and/or abuse?

Unfortunately, there is a growing trend in workplace harassment and abuse cases where perpetrators, in response to a complaint being brought against them, are seeking to bring their own claims against the victim of their abuse. These retaliatory claims can take many forms, including counter-complaints and counterclaims. A perpetrator may bring a complaint of their own against the victim, even framing them as the aggressor, to shift the blame and focus of the investigation onto the victim. If the victim has already commenced a lawsuit, it is increasingly common for perpetrators to bring a counterclaim for defamation. The most recent example of this pattern in the media is Johnny Depp’s defamation lawsuit against Amber Heard.

While the tactic may have worked for Depp, it is one that carries significant risks. If a court deems a counter-complaint or counterclaim to be frivolous or vexatious, consequences could be significant. Courts have not hesitated to award punitive damages as well as costs in favour of the party subject to a meritless allegation.

To curb the chilling effect this trend has had, lawyers need to address such claims by making it clear that their client(s) will not be swayed or deterred by bullying or threats. In short, never let on you are intimidated or scared – that is just what abusers want.

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