By Howard Levitt
Claims for harassment can easily backfire, both in a law firm or in any workplace
Nobody fights like lawyers other than, perhaps, other lawyers. And harassment cases between lawyers can reach unrivalled heights.
“Harassment” has become much talked about but little understood. What is harassment to some is “a day in the office” to others. Employees often file harassment complaints defensively, in response to justified discipline, hoping to derail that process. Others believe they are being “harassed,” and certainly feel harassed but, to the average person, they are simply overly sensitive and thin-skinned. Harassment in the workplace, such as to be actionable in negligence, constructive dismissal or a violation of the Occupational Health and Safety Act, must be objectively intolerable to a reasonable person. Despite one case which found continual unfounded discipline to be a constructive dismissal, generally employers are permitted to discipline without risk of liability, as long as they conduct it in good faith.
In addition to the various types of civil harassment that one can sue for, harassment can also be a criminal offence.
Back to catfights among lawyers: Can you imagine this scene, which was replayed before Judge Alain Bergen of the Nova Scotia court, occurring in any other workplace?
Mary Jane Saunders was on the management committee of the New Glasgow law firm Mac, Mac & Mac (yes, really).
Saunders had been recommended by a senior partner and head of litigation, Donn Fraser, to sit on the committee at a time when the law firm was at risk of dissolving. She knew there were serious issues and divisions and that part of her responsibilities in dealing with disputes would be unpleasant. Although adverse to conflict, she was aware that running a law firm could be confrontational. She also knew that Mac, Mac & Mac had an open-door policy of meeting in person to solve problems.
In March 2020, Saunders noted a change in behaviour by Fraser. He had outbursts at partner meetings, although he was not the only one who did. She became fearful, not wanting to be near him. By August, she was afraid to go to partner meetings if he attended, although she never advised him of her fear. In fairness, Fraser had never raised his voice to her and made no threats to her or to anyone else.
By late May 2021, the battle lines were drawn, with Fraser threatening to sue Saunders and the other partners and Saunders filing a complaint against Fraser to the Barristers Society.
She had asked him not to come to the office on May 24, 2021, informing him that all communications between them must be by email and warned that she would call the police if he attended. She had threatened this before but, on those previous occasions, he had nevertheless attended her office and they resolved their issues without incident. On May 26, he attended again, her office door was open and, from the doorway, he stated: “Answer the question MJ.”
This question related to the timing of a special partners meeting to discuss partner draws. Saunders was required to inform Fraser of this but had not. Rather than answering his question, Saunders responded, “Donn, I told you what I would do,” proceeded to act on her threat and called 911. Fraser entered her office and sat down. Notably, Saunders never asked Fraser to leave.
While she called 911, Fraser kept repeating, “Answer the question, it’s a simple question.”
When the police arrived, they got into an argument with Fraser. He questioned their right to be there and asked if they wanted a copy of the Criminal Code. Both the police and Fraser raised their voices.
Fraser was charged with “criminal harassment.”
As the court noted, “Saunders agreed that by calling 911 she might make Mr. Fraser angry. And she further agreed that by doing so she was prepared to escalate the situation. These are not the actions of someone who is afraid, but the actions of someone who is angry.”
There is much talk in workplaces of harassment and what meets that test. Of course, criminal harassment is more serious and requires even a higher degree of proof than harassment for constructive dismissal or under the Occupational Health and Safety Act.
The court noted in its decision, in determining what harassment meant, that being “vexed, disquieted, troubled, worried badgered or annoyed” is not equivalent to being “harassed.”
The court found that Fraser did not engage in threatening conduct but was seeking an answer to a legitimate work-related question and that a reasonable person would not find his behaviour objectively threatening. As well, he had lawful authority to attend her office to obtain an answer, as he had done in the past.
The court found also that Fraser had no reason to believe that his conduct would be perceived as harassing. Finally, not only did the court not find, as required, that Saunders’ fear of Fraser was reasonable, but found that she did not fear for her safety and that it was Saunders, not Fraser, who escalated the situation by calling 911 without even ever asking him to leave her office. Fraser was accordingly acquitted.
A cautionary note: Employer clients often ask about charging an employee criminally for particular infractions, usually ones involving fraud. They often do so for leverage. It is a dangerous game.
This decision is doubtless embarrassing for Saunders and one should never be quick to invoke the police in any case unless the evidence is incontrovertible. An employer or co-worker calling the police on another employee risks being sued for malicious prosecution as well as having a falsely accused employee claim constructive dismissal or claiming harassment themselves and suing civilly.
Claims for harassment, civil or criminal, unless properly established with appropriate evidence can easily backfire, both in a law firm or in any workplace.