Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

Real Pleadings: Did Canadian Law Firm Discriminate Against a Female Partner?

by David Doorey August 28, 2009
written by David Doorey August 28, 2009

Back from summer break, I begin a fresh season of employment law blogging with a new edition of my Real Pleadings feature involving an explosive case working its way through the Ontario courts. 
Diane LaCalamita v. McCarthy Tetrault is a lawsuit by a female lawyer at McCarthy’s, one of Canada’s big Bay Street firms.  The lawsuit challenges her dismissal from that firm after 3 years and includes several legal claims, including wrongful dismissal, negligent misrepresentation, and discrimination, and she claims aggravated and punitive damages as well.  In total, she is claiming $12 million in damages.
Law students should think about the various causes of action in this case.  “Wrongful dismissal” is simple enough: it is an allegation that she should have received more than the 8 months’ notice she received.  The negligent misrepresentation claim is something we study in my employment law class.  It is an allegation that she was told things during the recruitment process that caused her to come to McCarthy’s which were untrue, and as a result, she suffered damages.  The list of statements allegedly made are set out at length starting on page 11 of the Statement of Claim.  McCarthy’s responds by arguing that they dismissed her because she was underperforming, and they  have loads of evidence to prove that.
But what do we make of this ‘discrimination’ claim.  Most everyone acknowledges that the retention of female lawyers in large law firms is a systemic problem.  The Law Society has special committees studying the problem.  The lawsuit cites a consultant’s study done for McCarthy’s in 2004 that included the following findings:

  • women comprise 1/3 of lawyers at the firm, but less than one-fifth of full partners are women
  • women leave the firm at double the rate of men
  • male ‘income partners’ (kind of probationary partnership) are admitted to full equity partnership at twice the rate of women income partners

LaCalamita alleges that McCarthy’s has a ‘culture of discrimination’ against women lawyers that contributed to her dismissal.  But even if this allegation were true, how does that turn into a cause of action in a civil lawsuit (this is not a complaint at the Human Rights Code).  Remember Bhaudaria, where the Supreme Court ruled that a civil suit can not be based on breach of the Human Rights Code and that there is no tort of discrimination in Canadian common law.
The answer is an interesting one.  LaCalamita has asserted two things:

    (1) that the requirement for lawyers to treat one another without discrimination set out in  Rule 5.04 of the Law Society’s Code of Conduct is an implied term of a lawyers employment contract, which is breached when there is discrimination on the basis of sex;
    (2) she relies on Section 46.1 of the Human Rights Code, which permits a court to compensate a victim of discrimination in the remedy of a civil lawsuit.

Very clever.  I think she could also have argued that her contract includes an implied duty on the employer to treat her with dignity and respect, which surely must include an entitlement to not be discriminated against.    How do you think the court will deal with the implied term argument?
The other interesting aspect of this case is that McCarthy’s has been ordered to produce a large volume of confidential information about lawyer’s compensation, billable hours, gender, and rank.
Note, by the way, that I have argued before that the Law Society should require this information to be disclosed by large  law firms as part of any plan to address gender discrimination.  So far, no one has listened to me, believe it or not.

Here are the various pleadings.
Statement of Claim
Statement of Defence
Motion for McCarthy’s to Produce Documents
Plaintiffs Factum on Motion for Production of documents
Defendants Factum on the Motion for Production
The Masters ruling ordering McCarthy’s to produce certain documents.  This is a hand-written decision called an ‘endorsement’:
April 2009 Endorsement by Master Brott
July 2009 Endorsement
0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Employment Standards Act Exclusions: The "Crown" Exclusion
next post
Top 10 Labour & Employment Law Articles (August 30)

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 218 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
24h

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
24h

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.