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:
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.