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How statement of claim or defence in wrongful dismissal suit can come back to bite


How statement of claim or defence in wrongful dismissal suit can come back to bite



original posting by Howard Levitt, Financial Post – September 24th, 2018

These pleadings are public record and as such can spiral out of your control

Although it made for some public entertainment, it could destroy this man’s career.

I was visiting a client, Flair Airlines, a couple of weeks ago when it received a call about an article that had just appeared in the media.

A former employee was suing. Flair had not yet even filed its defence but the press was on top of the story.

The article was about its former vice-president, Chris Lapointe, and stated that the reasons Flair provided for his dismissal included “attempts to defraud,” “conflict of interest,” “breach of fiduciary obligations,” “gross incompetence” and more. But Flair had provided the press with no information.

When I Googled “Chris Lapointe, Kelowna” the story appeared in the results list. The facts for that article had all been taken from Lapointe’s own publicly filed statement of claim. Without Flair having said a word, the public relations battle seemed to already be decided. Sometimes employees and their lawyers can be their own worst enemies.

In an era in which every employer Googles job applicants, why would anyone do this to themselves?

Generally, media lack the resources to have reporters hovering around courthouses waiting for interesting stories. I can assure you, it would usually be a very long wait. Almost invariably, if such a story appears, it is because a reporter was tipped off.

Did Lapointe or his law firm plant the story? Or was it someone Lapointe told, who, in turn, told someone else? I don’t know, but, if it was Lapointe or his counsel, could they not have anticipated that the story would read as it did? Even if they had nothing to do with the article’s appearance, should they not have anticipated what story might arise from their own statement of claim?

Another client was also contacted that week by a television station about one of its former and publicly prominent executives, forcing the company to delineate the reasons for her termination, rather than to allow her version of events to prevail.

In their haste to sue, employees too often forget that pleadings, i.e. statements of claim, statements of defence, etc., are a matter of public record.

It is not only what one states in the claim. Usually, dismissed employees do not publicize the reasons provided for their discharge, as Lapointe’s claim did. But a statement of defence, if cause for discharge is asserted, will do that.

With the advent of #MeToo, I have had clients deciding not to sue for fear the employer’s public filing could create even greater publicity around their conduct than the initial firing.

For the same reason, many employers settle cases or decide not to appeal badly reasoned judgments rather than risk the publicity of the trial or appeal.

Few lawyers appreciate the potential public impact of their pleadings nor have the skills to deftly handle media inquiries when they arise. The reflexive response of not speaking about matters potentially before the courts is what is taught in law school — but it is almost invariably misguided. If a story is going to appear, your job should be to help shape it. If your lawyer lacks those skills, switch to a different one or obtain assistance from a crisis management/public relations firm.

But if you do communicate to the media, be cautious. Careless prognostication can result in an action for defamation.



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