Meet the junior lawyers taking on Heenan Blaikie’s veteran counsel

It’s not every day that a rookie lawyer gets to sue a giant law firm. Yet, out of the seven ex-Heenan Blaikie legal assistants suing the now-defunct firm, six have tapped junior associates to lead their claims. Why? As employment lawyer Andrew Pinto explains, young lawyers are all “the assistants can afford.” So these lawyers can thank their lower billable rates for getting the chance to go head-to-head with a fallen Goliath, represented by Greg McGinnis, a partner at Mathews, Dinsdale & Clark LLP. He’s a labour and employment lawyer with almost two decades of experience, and a former Heenan Blaikie partner.

The rookies

2012 call
· Cavalluzzo Shilton McIntyre & Cornish LLP
· Working with Christopher Perri
· One joint lawsuit, total claim: $56,886.26


2012 CALL
· Samfiru Tumarkin LLP
· Two lawsuits, total claim: $125,006.37



2011 CALL
· Koskie Minsky LLP
· Two lawsuits, total claim: $530,000



2010 CALL
· Cavalluzzo Shilton McIntyre & Cornish LLP
· Working with Daniel Rohde
· One joint lawsuit, total claim: $56,886.26



What we know about the law suits so far

Since the collapse of Heenan Blaikie LLP more than 10 months ago, seven legal assistants have launched lawsuits in Toronto against their former firm, seeking a combined total of close to $1.1 million, according to court documents obtained by Precedent. At the time of the dissolution, according to one statement of claim, Heenan Blaikie’s Toronto office employed more than 160 legal support staff. These claims, which range in value from around $15,000 to $418,000, offer a window into how Heenan Blaikie might have treated its support staff after it dissolved in February.

In one suit, two assistants (who found work after the collapse) claim Heenan Blaikie failed to pay them the minimum amount of termination and severance pay required by law. They allege the firm should have paid them eight weeks of termination pay, plus severance based on their tenure. Instead, according to the statement of claim, Heenan Blaikie gave them just two weeks of working notice. “I do find [Heenan Blaikie’s alleged conduct] very surprising,” says employment lawyer Andrew Pinto. Most employers “have no difficulty whatsoever paying the minimum standard.” (Heenan Blaikie says it will defend the claim, but, at press time, had not filed a statement of defence.)

Three other assistants, still unemployed, claim that, when they joined Heenan Blaikie, the firm agreed to recognize years they spent at their previous employer when calculating tenure (in fact, Heenan Blaikie reportedly gave them service awards acknowledging those previous years). But, when Heenan Blaikie drew up their severance packages, they allege the firm reneged on that promise, only counting time they spent at Heenan Blaikie. In one statement of defence, Heenan Blaikie says it agreed to recognize the assistant’s “prior service… if at all, only for the purposes of benefitsrelated entitlements such as vacation.”

Four assistants are also seeking punitive or bad faith damages, on the grounds that Heenan Blaikie misrepresented its financial health in the weeks leading up to its collapse. Heenan Blaikie, in one statement of defence, denies this allegation and says there is “no basis for punitive or exemplary damages, ‘bad faith’ damages, or any other form of damages.”

That only seven assistants out of a possible 160 have filed lawsuits is not surprising, says Daniel Lublin, partner and co-founder of Whitten and Lublin LLP, a Toronto employment firm. When it comes to enduring the stress of a lawsuit — and the prospect of cross-examination — he says “some people just don’t want that fight in their life.”

Lublin also says that, even if the ex-Heenan Blaikie assistants win, they might not collect any money. Before Heenan Blaikie pays out, he explains, the firm may have to first pay large creditors, such as banks and property owners, that have secured loans. Once these assistants resolve their cases, the firm could be out of assets, leaving them with no more than “a paper judgment.”

Legal assistants aren’t the only former employees suing Heenan Blaikie. At press time, a patent agent, a non-equity partner, an engineer and a mining lawyer all had pending lawsuits against the firm.

Trial & Error: Essential reading for the junior lawyer

Are you seeking inspiration, insights or talking points? Check out my list of essential reads for the junior lawyer —four that have profoundly impacted my practice: 

1. Chris Hadfield’s an Astronaut’s Guide to Life on Earth

It’s not a book about law, but there are many takeaways that apply to any ambitious lawyer, such as the value of working hard and parking your ego. The biggest lesson I gleaned from this book was to plan for every contingency. I found myself reflecting on this advice earlier this year as I geared up for my first trial. I considered all possible permeations and equipped myself appropriately. I came prepared with materials that my team may need in the face of possible objections and while I did not think of everything, I was able to plan for most contingencies and add a great deal of value to the trial team. 

2. The Rules of Civil Procedure (or whatever legislation is most relevant to your practice)

Phil Moore, Senior Vice President, Deputy General Counsel and Corporate Secretary of TD Bank Group, advised me as an articling student to read the Canadian Business Corporations Act cover to cover… in one sitting. He explained that in so doing, I would obtain insight into the contents and structure of the statute. Regardless of your area of practice, I firmly believe his advice holds true. I recently familiarized myself with the most relevant legislation to my practice, Rules of Civil Procedure, which has helped me immensely. With a thorough understanding of the Rules, I know exactly where to turn when I face new issues in my practice. 

3. Sheryl Sandberg’s Lean In

This one is worth the buzz. The messaging in this book is essential for all junior lawyers. There are many useful nuggets in this book, and I’ve previously shared one in my article on how to properly take a vacation. Lean In is packed with so much practical wisdom that I could write an entire column about this book alone.

4. Daily news

You’ll hear it often in your career that reading the news is important. It took me a few road trips with colleagues and a handful of awkward elevator rides to truly understand the necessity of being current with the daily news. Being current not only provides you with a litany of talking points to fill elevator silences, but it also deepens your perspective of the world around you. 

Notable mentions:

While I haven’t yet carved the time out to read these books, they came highly recommended by my colleagues and sit on my current “to-read” list:

  • Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer by Grover Cleveland. This book was provided by Osler to all of its first year associates.
  • Tomorrow’s Lawyers: An Introduction to Your Future by Richard Susskin. This one describes what the future of technology has in store for lawyers.

Got any other great must-reads? Let me know

Atrisha Lewis is a second-year associate in McCarthy Tétrault’s litigation group. Follow her on Twitter: @atrishalewis

Lawyers flip their wigs

Flip Your Wig for Justice invites lawyers to abandon their pride to help Ontario’s legal system. The campaign asks people from the legal community and beyond to don ‘wacky’ wigs on March 6 to raise both money for and awareness of issues regarding access to justice.

Flip Your Wig was created by seven non-profit and volunteer-based organizations united by their concern over the difficulties many Ontarians face when they are involved in a legal dispute. According to the Flip website, only about 6.5 percent of legal matters ever make it to the formal justice system.

“I think it is one of the most pressing problems we have in the functioning of our democracy,” says Sarah McCoubrey, executive director of the Ontario Justice Education Network. Despite this, McCoubrey thinks that “the crisis feeling isn’t there and I think that’s one of the reasons that we have a hard time solving these problems.”

One of the major problems is the prohibitive cost. Lawyers are expensive and the poor and vulnerable are up to four times more likely to experience social assistance problems, according to an Action Committee on Access to Justice in Civil and Family Matters report from 2013.

Chief Justice of Canada Beverley McLachlin, P.C., in the foreword to the report, claimed that we are “increasingly failing in our responsibility to provide a justice system that [is] accessible, responsive and citizen-focused.”

Among Flip Your Wig’s members are the Canadian Civil Liberties Association, Pro Bono Students Canada and the Ontario Justice Education Network. All of which are organizations that help individuals whose needs are not being adequately met by the justice system.

“It’s the first time in Ontario that the access to justice organizations have worked in a collaborative way,” says McCoubrey.

The campaign has also accumulated a number of notable ambassadors. Dean Mayo Moran of the University of Toronto faculty of law, LSUC Treasurer Thomas Conway, and Deputy Minster Stephen Rhodes have all expressed support (and worn a wig) for the cause.

Flip Your Wig for Justice invites those interested in participating to register on their website. Once registered, you can begin a pledge drive, asking friends, family and even strangers to sponsor. Then, on March 6, those brave enough will wear wigs to work. (Though a judicial wig is a propos, it isn’t necessary.)

Discretion, in this case, is not the better part of valour.  

Remembering the life and work of John Plater

platerTributes are pouring in to honour the memory of lawyer John Plater. The tireless and forceful advocate for compensation for the victims of Canada’s tainted blood scandal died Saturday at 45 from complications of the Hepatitis C and HIV he contracted through tainted blood.

Michael McCarthy, who also contracted hepatitis C through a blood transfusion and was represented in court by Plater, told the Toronto Star that Plater “accepted his lot in life and decided whatever happened to him, he could turn it into something better for somebody else.” This he did through powerful in-court advocacy for his clients, and later, as president of Hemophilia Ontario.

Health Minister Leona Aglukkaq released a statement praising Plater for dedicating his “time and energy in the service of others. He will be missed, and will be an inspiration to many for years to come.”

A memorial post on the Canadian AIDS Society website describes Plater as “a lawyer by training and an activist by nature” who “provided dedicated and valiant leadership to improve the health of all of us. With his quiet determination and legal training, John opened many doors and was committed to improving the lives of all of us, particularly the lives of people living with HIV/AIDS, HEP C, Co- infection and Hemophilia. He was a champion for all and opposed the criminalization of HIV.”

Plater learned at age 18 that he had contracted HIV and Hepatitis C. After completing his undergrad at U of T, Plater earned a law degree from Osgoode in 2006 and set up a small practice in his house in Thornbury, Ontario. He was passionate in fighting for patients’ rights, regardless of the circumstances in which they contracted their conditions. His friend and fellow lawyer James Kreppner worked alongside Plater until Kreppner’s death in 2009, also of HIV and Hepatitis C.

Plater’s widow, Karen, sent a moving email about her late husband to CBC News. “We believed in three things: love hard, play hard, work hard,” she wrote, “and tried to do them in that order. We sometimes mixed up the play hard and work hard — I remember many a vacations being delayed as he was finishing work on a case or preparing material for a meeting, but we NEVER mixed up the love hard.”

Visitations for Plater are being held in Thornbury this afternoon and evening, with the funeral tomorrow afternoon. Memorial donations can be made to the Canadian Hemophilia Society, the Beaver Valley Outreach or a charity of your choice.

Is this the last G20 class action?

photo by James D. SchwartzA Canadian Press story about a new class action stemming from the 2010 G20 Summit in Toronto posits that the suit may be the last to be filed, since the two-year basic limitation period has now expired.

The class of seven in this latest action includes women who allege they were profiled by police, in part because they had “hairy legs.” The claim, which will be filed today, is for $1.4 million.

This figure pales in comparison to the long-running Sherry Good class action, headed by lawyers Eric Gillespie and Murray Klippenstein. They’re claiming $35 million in general damages, $20 million in aggravated and special damages and $20 million in punitive and exemplary damages. A website about the class action describes Good as one of the people who were surrounded by police at Queen and Spadina on the last day of the summit, in the now-infamous “kettling” incident. The suit, however, aims to include in its class “most people who were arrested that weekend, or ‘kettled,’ or who were held in the G20 detention centre on Eastern Avenue.”

Another, even larger class action was stayed last year due to its similarity to the Good suit.

An article in the winter 2010 issue of Precedent highlights several of the key legal responses to the events of the G20 Summit, which included the largest mass arrest in Canadian history. The summit itself was also for its massive expense and significant disruption of daily life in downtown Toronto — an experience we detailed in advance of the summit with a blog post and map about how G20 security would affect the buildings that house Toronto’s largest law firms.

Photo by James D. Schwartz

The legal and political trouble with banishment

photo by West Annex NewsStephen Harper and Rob Ford met yesterday in Scarborough to discuss gun violence in Toronto, where high-profile shootings at a block party and in an Eaton Centre food court have everyone on edge about a perceived rise in gun violence. If anything was decided at the meeting, neither the prime minister nor the mayor is prepared to let anyone in on their plans just yet. One thing, however, seems clear: Mayor Ford has been told to back off suggesting that people convicted of gun crimes be “deported” from Toronto.

In a post-meeting statement, Ford indicated only that he and Harper “shared a number of ideas” on how to “make sure we have the tools in place to better prevent gang violence and protect the public from criminals.” But when the mayor first called for a meeting with the prime minister, it was — as he said during an impromptu call in to a talk radio show — “to find out if there’s any laws with respect to the immigration and citizenship…status and the city. So people are caught — I don’t care if you’re white, pink or purple, I don’t care what country you’re from, I don’t care if you’re Canadian citizen or not — all I’m saying is, if you’re caught with a gun and convicted of a gun crime, I want you out of this city.” (Listen to a recording of Ford’s appearance on the show via the audio player, above.)

That statement was initially met with much derision and ridicule in print and online, but a Globe and Mail op-ed by Lorne Neudorf is now suggesting that there is some judicial precedent to the idea. However, though Neudorf writes that “banishment is an instrument in the judicial toolkit,” he also concedes that courts consider such judgments to be exceptional and case-specific. In 1968, Neudorf reports, the Manitoba Court of Appeal ruled that banishments should not be used to expunge undesirables by “foisting them off on other communities,” and a 1983 Northwest Territories Supreme Court decision warned against banishments that “solve a local problem at the expense of other communities.”

It would seem, therefore, that the tools Ford and Harper aim to have in place won’t include the unenforceable, unprecedented, and likely unconstitutional idea of running a whole bunch of people out of town.

Photo by West Annex News

James Holmes, D.A. Carol Chambers, and the death penalty in Colorado

Now that a curious and angry public has finally caught a glimpse of Colorado theatre shooting suspect James Holmes, the conversation has turned to whether or not his will be made a capital case. As Veteran U.S. legal analyst Andrew Cohen wrote on The Atlantic’s website on Sunday evening, it’s a safe bet to assume that the answer is yes — despite the fact that Colorado executes far fewer people than other states, particularly those to its southeast.

Despite Colorado’s reluctance to execute, Cohen writes, Holmes’s case falls within the jurisdiction of Arapahoe County District Attorney Carol Chambers, whose gusto in pursuit of death sentences has made her “a sort of national symbol in the criminal justice systems' eternal war over capital punishment” and who “has the experience, talent and intellect necessary to prosecute the coming Holmes case in a productive way.”

Thus far, all Chambers has said is that the families of the victims need time to determine whether they wish to pursue the death penalty in the case against Holmes. "Victims will be impacted by that decision in an enormous way for years if the death penalty is sought," she said at a press conference yesterday, following Holmes's first hearing. "That's a very long process that impacts their lives for years, and so…we will want to get their input before we make any decision on that."

Chambers, however, is approaching the end of her term; her successor will be elected in November. Denver reporter Alan Prendergast told Cohen via email that because of this time limitation, be believes Chambers will likely “work quickly to prepare a possible capital case against Holmes” during the time she has left in office.

Predergast has written extensively about Chambers, who made headlines prior to the theatre shooting for her frequent use of “habitual criminal” charges to lengthen the jail terms of repeat offenders, and for launching a crusade against judicial delays in her county, which was nicknamed “Arapahell” by defense attorneys due to its inefficient court system.

Poll: Would you take your dream job while pregnant?

pollNew Yahoo! CEO and soon-to-be-mom Marissa Mayer’s revelation last week that she plans to take a just few weeks for maternity leave and “work throughout it” re-upped the debate about women balancing their families and careers.

Coming in the wake of Anne-Marie Slaughter’s Atlantic essay “Why Women Still Can’t Have It All,” Mayer’s announcement prompted a slew of articles, guest op-eds, blog posts, and point-counterpoint wars of words. The arguments on either side are likely all too familiar to people in the legal community, where debate rages about the precedent-setting impact of her decision, and whether taking significant time off with your baby is an essential human right or a potential career-killer.

What would you have done in Mayer’s shoes: take a longer leave; sacrifice that dream job because the time isn’t right; or do as she’s doing? Take our latest poll, to the right of this post, to weigh in on the debate.

Former associate at Mathews Dinsdale settles with firm

rbc plazaA $1.3-million lawsuit against Toronto employment law firm Mathews, Dinsdale & Clark LLP filed by its former associate Adrian Jakibchuk was quietly settled out of court last month. The suit was part of a series of allegations, investigations, resignations and lawsuits stemming from alleged sexual misconduct at a firm event in January 2009. The case was dismissed without costs on consent on June 7.

Jakibchuk sued his former firm over wrongful dismissal in March 2011, claiming the firm had become “a hostile and poisoned work environment” for him after a then-partner at the firm, David Cowling, filed a $2.3-million defamation suit against him and an ex-junior associate at MDC, Sarah Diebel. That lawsuit, filed in March 2010, claimed that Jakibchuk and Diebel had made false allegations accusing Cowling of sexual misconduct at a firm-sponsored party, with the intention to malign him. The defamation suit was settled out of court just days after Jakibchuk launched his wrongful dismissal case against his former firm.

Pleadings obtained by Precedent in the Jakibchuk lawsuit indicate that MDC paid an undisclosed sum of money to Cowling in order for him to drop his lawsuit and leave the firm. In MDC’s statement of defence, dated May 10, 2011, it says the settlement between Cowling and Jakibchuk “was only possible because MDC, as a condition of payment of monies to Cowling in connection with Cowling’s departure from the firm, insisted that Cowling discontinue the Defamation Action.”

The statement of defence also reveals that Cowling settled with Jakibchuk for $20,000 of Jakibchuk’s legal costs. According to the documents, MDC covered half of those costs.

Jakibchuk resigned from MDC two months after being served a statement of claim at the firm’s reception desk with the lawsuit from Cowling. The then-fourth-year associate had cooperated with investigations looking into Cowling’s conduct at the party celebrating a moot competition sponsored by the firm, and believed his responses were told in confidence. He alleged in his defence that he had seen Cowling dancing very closely with a young female law student and that Cowling had grabbed her breast. Cowling claimed in his pleading that the allegation was false. He claims the confidential report resulting from an independent firm investigation exonerated him of the accusations. A letter issued from the firm to Cowling more than six months after the report’s completion states that he acted appropriately and professionally throughout the weekend of the moot competition.

In Jakibchuk’s claim, MDC is accused of violating the Human Rights Code due to his suffering reprisals for participating in a workplace investigation of sexual harassment. The reprisals listed in the claim include the firm’s unwillingness to support Jakibchuk in his defence against the libel suit launched by one of its partners, as well as a noticeable decline in work assigned to him by partners after he was served. The claim says, “his prospects for future career advancement at MDC were destroyed” as he felt he would no longer be on track for partnership and he was compelled to leave the firm.

Jakibchuk is now an employment and labour law lawyer at Sherrard Kuzz LLP. The details of the settlement between him and MDC remain confidential. His lawyer, Paul Schabas, speaking on behalf of his client, says Jakibchuk is “pleased to finally have this whole matter behind him and he’s moving on with his life and his legal career.”

A “chilling moment” for defence lawyers?

groiaA Law Society disciplinary panel ruled yesterday that Joe Groia violated civility rules in his defence of former Bre-X geologist John Felderhof more than a decade ago.

Globe law reporter Jeff Gray writes that Groia may appeal, which stands to reason on myriad levels — including the prominent defence lawyer’s assertion that declaring his actions to be professional misconduct could create a ripple effect, causing his peers to ease off in defence of their clients for fear of censure.

That sentiment was echoed by Edward Greenspan in an article about the Groia case that appeared in the winter 2011 issue of Precedent. “I think these kinds of prosecutions are going to have a chilling effect on lawyers,” Greenspan told us. “If a citizen is in a fight for their life, the trial lawyer should not have to give themselves a sedative before they go into a courtroom in order to avoid vigorously defending their client, out of fear of appearing uncivil.”

The proceedings against Groia have been nearly as drawn-out and fraught with controversy as the Bre-X trial itself. In its decision, the panel rejected the claim “that the duty of civility can compromise a lawyer’s duty to defend a client vigorously and zealously in a criminal proceedings,” and called Groia’s behaviour during the trial “wrong in law.”

On his Twitter account, lawyer and legal writer Philip Slayton called yesterday’s ruling  “an absurd decision” that “makes [the Law Society] look bad, not Groia.”

Photo by Jennifer Roberts