Who better than Howard Levitt, employment legalist extraordinaire, to tackle the excesses of the #MeToo inquisition and its noble credo of “I believe her,” which can be such a powerful temptation for liars.
“The very fact of an investigation usually seals the fate of the investigated employee,” Howie opined in his Financial Post column Aug. 1. “I have seen few cases where an employee, suspended pending investigation, has ever been reinstated, regardless of the ultimate findings.”
Exhibit A: The shafting of Steven Galloway at UBC.
“The result for Galloway: ruination reputationally, financially and psychologically. Shockingly, while Galloway’s name is pilloried, his accuser, M.C., retains her anonymity. She does not deserve this and I would be delighted to name her. Indeed, in my view, she, [Chelsea] Rooney and the entire coterie that so viciously attacked Galloway and [Margaret] Atwood should be named, shamed and sued.
“And Galloway is not the only one.
“Ahmed Fekry Ibrahim, an assistant professor at McGill University, recently sued a student and another professor, Pasha Khan, for $600,000 as a result of what he claims to be a “ruthless campaign” to destroy his reputation and right to privacy. He claims that he was in a consensual relationship with a student three years earlier but, after it ended, a smear campaign erupted with the goal of having him fired, with stickers appearing in bathrooms alleging that he was a sexual predator and allegations made in the student newspaper. Although the messages were posted by an anonymous group, the lawsuit claims that the student he sued was behind them. The lawsuit also alleges that Khan warned female students to stay away from him to avoid sexually inappropriate behaviour. His tenure application was denied, and he now must leave McGill at the end of his existing contract and he asserts, with good reason, that he is unemployable in academia.”
“Many employers faced with allegations against employees have found it more convenient to fire rather than to determine whether the accused actually committed what is alleged. This need not take the form of a full-blown investigation. Speaking to the complainant, asking for the names of and meeting with apparent witnesses and then putting to the accused the allegations against them and providing them a chance to respond, usually suffices legally.
“But what if none of this occurs and the accused are unfairly pilloried and ruined reputationally? What is their recourse?”
“Ibrahim has sued for defamation. In addition, the law provides a variety of potential causes of action against those who make false allegations. They include inducing breach of contract, intentional infliction of economic loss and intentional infliction of nervous shock, i.e. mental distress.
“The risk of such lawsuits should not prevent anyone from making allegations in good faith. In the context of the workplace, employees are able to make accusations that they reasonably believe to be true even if they turn out to be wrong. But allegations made in bad faith out of political proclivity should not be protected and indeed are not.
“Scant solace for Galloway as the limitation period for such lawsuits is two years. But, to the extent #Metoo has led to the elimination of due process, the falsely accused indeed have recourse.”
One high-profile example that escaped Levitt’s analysis: the recently-fizzled suits against Soulpepper Theatre Company and its artistic director, Albert Schultz (Franks passim).
In January, lawsuits from four actresses landed like D-Day on Soulpepper ($4.2M) and Shultzie ($3.6M), with synchronized scoops from the CBC (tweeted at 10:00 a.m.) and Globe and Minion (10:04 a.m.).
Next up, the teary press conference with the telegenic and sympathetic plaintiffs, detailing 13 years of groping, meat-puppetry and other alleged outrages. Exeunt Schwantz, accompanied by his wife, Soulpepper executive director Leslie Lester.
The legalists for victims? Alexi Wood of St. Lawrence Barristers and Tatha Swann of…Levitt LLP!
It was a boffo product launch, even if some tightasses suggested that Wood and Swann had sailed a bit too close to the Law Society of Upper Canada’s Rules of Professional Conduct, section 7.5-1 , to wit: “Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that the lawyer’s real purpose is self-promotion or self-aggrandizement.”
The sexist reptiles of Toronto’s legal community, having never heard of Swann or any major case on which she had previously taken the lead, immediately presumed the stage management of Levitt, a veteran publicity hog. Levitt’s editors at the FinPost were no doubt chuffed to see print rights to the Schultz bombshell go to the Globe’s J. Kelly Nestruck.
Others noted the many times St. Lawrence partner Phil Tunley had represented the CBC, which, incidentally, also had a fifth estate segment ready to roll on Schultz.
Much discomfort all ’round when the parties settled out of court for peanuts — with no admission of wrongdoing from Schultz.
Noah Richler, a friend of Schultz, smelled a setup. “The whole thing has far more to do with power and resentment than sexual battery,” he told Leah McLaren in Toronto Lite. “The court of public opinion has made extraordinary victims out of Albert and Leslie. That fifth estate piece was the single worst piece of publicly funded journalism I’ve ever seen.”
Should our Schultz now decide to seek recourse against his former employers for his summary frogmarching, perhaps he should consider retaining that steadfast guardian of due process, the incomparable Howard Levitt.