Negative letter to senior lawyer was 'highly critical, but not insolent': Court
An Ontario appeal court has overturned a finding of just cause for dismissal in a case where a lawyer fired a junior associate for a strongly worded letter than accused her of dishonesty.
Dawn Marie Bennett was a junior associate lawyer hired by Karen Cunningham on July 8, 2002, to work in Cunningham’s law office in Mississauga, Ont. As part of her compensation, Bennett was paid one-half of all fees the office billed and collected, with advances of $38,000 per year.
When Bennett arrived for her first day of work, Cunningham gave her a written agreement with several provisions that had not been discussed before her hiring, but Bennett signed the agreement anyway.
Things quickly became busy for Bennett and she sometimes had to work weekends in addition to long hours from Monday to Friday. Bennett was concerned Cunningham wasn’t providing enough resources or technology in the office she needed to do her job, so she proposed a business plan. Cunningham accepted some of Bennett’s suggestions and brought in new technology.
On Nov. 5, 2002, Bennett told Cunningham she was concerned that only 10 per cent of her share of billed fees had actually been collected and not all of her hours worked had been entered in the new computer system. A month later, the firm continued to collect only fractions of Bennett’s share of fees and Bennett asked for a legal assistance. However, Cunningham told her an assistant would have to come out of her commission.
Bennett also discovered in the account records that Cunningham had been credited with time Bennett spent on client files. Cunningham assured her these would be corrected when she received copies of the accounts.
Bennett wasn’t happy with how her concerns were being addressed, so on Dec. 21, shortly before Cunningham was to go on vacation, Bennett presented her with a letter outlining the concerns. The letter made several points Cunningham felt weren’t true and accused Cunningham of being dishonest and negligent in the recording of hours worked on files, as well as disorganized and incompetent. Cunningham was not happy and dismissed her.
The Ontario Superior Court of Justice upheld the firing, finding Bennett’s letter was contemptuous and was serious misconduct that undermined Cunningham’s confidence in Bennett and constituted just cause for dismissal. Bennett appealed to Ontario’s Divisional Court.
The Divisional Court overturned the decision, finding the accusation of dishonesty and negligence only appeared once in the letter and the rest of it was “in part highly critical, but not insolent.” The court also found the trial court didn’t give sufficient weight to the letter’s conclusion, which expressed Bennett’s desire to work with Cunningham to resolve the issues “make this arrangement a successful one for both of us.”
