Second appeal court agrees with trial court that lawyer’s critical letter warranted dismissal; first appeal overturned the dismissal
An Ontario lawyer has won the third round of a court battle against a fired subordinate lawyer, with the Ontario Court of Appeal reinstating the latter’s dismissal for a letter accusing her of dishonesty and incompetence.
In the summer of 2002, Dawn Marie Bennett was hired by Karen Cunningham to work primarily on family law matters in Cunningham’s small law office in Mississauga, Ont. Bennett worked long hours from Monday to Friday and often on weekends. Her arrangement with Cunningham was she would earn a base commission of 50 per cent of fees billed and collected of her docketed hours along with a $38,000 annual advance that was recoverable against her commissions. She would also handwrite her dockets, which were then entered into the accounting software by Cunningham’s receptionist.
Bennett soon became concerned the law office was lacking in adequate resources and technology, causing it to be inefficient and unorganized. She prepared a proposed business plan to address these concerns and met with Cunningham in order to go over it.
Cunningham arranged a staff meeting. During the course of that meeting, Cunningham identified and listed files assigned to Bennett and agreed to include a sub-folder for lawyer’s notes in each file. Cunningham also invested in voicemail and computer software in an effort to increase file management and improve efficiency and organization.
Some months later, Cunningham met with Bennett again to hear some additional concerns Bennett had with respect to the difference between bills paid and collected of her docketed hours. Bennett felt Cunningham owed her commission amounts and was also concerned whether all of her time dockets had been entered properly. It turned out 42.8 hours of Bennett’s docketed time had not been accounted for.
Bennett and Cunningham met again in December 2002. Bennett had concerns the gap between fees billed and collected had increased since the commencement of her employment and the advances paid to her were greater than the fees collected. Bennett had also made complaints that some of her docketed time was credited to Cunningham. In reply, Cunningham told Bennett these errors would be corrected when Bennett provided copies of the accounts where such errors had occurred. Cunningham also declined Bennett’s request for a legal assistant, stating that if she wanted one she would have to incur the cost from her commission income.
On Dec. 21, 2002 — the day before Cunningham was to leave on Christmas vacation — Bennett gave Cunningham a letter which documented nine areas of concern about the running of the law office. A second copy was sent via registered mail. In the letter, Bennett accused Cunningham of being dishonest, negligent, disorganized and incompetent.
On Jan. 6, 2003, the day she returned from vacation, Cunningham told Bennett she was terminated effective Jan. 10, 2003. The Ontario Court of Appeal upheld the trial judge’s decision that Bennett’s employment was terminated for cause — overturning the Ontario Divisional Court’s quashing of the trial decision.
Lessons for employers
The decision is instructive in three ways. First, unless it is the Supreme Court of Canada making the decision, unanimity in appellate courts is clearly not a recipe for certainty: the Ontario Court of Appeal unanimously overturned a unanimous decision of the Divisional Court. Second, application of the contextual approach for cause for dismissal following the Supreme Court of Canada’s decision in McKinley v. BC Tel does not require the actual use of the words “contextual approach.”
In McKinley, the top court pronounced a test on the question of cause. Although the case dealt with the issue of employee dishonesty specifically, courts have applied the principles of the decision to all incidents of cause. Justice Frank Iacobucci stated, “whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct.”
In applying the test in Bennett, the Ontario Court of Appeal made it clear that substance will trump form. This is because the McKinley test is an enquiry into “the circumstances surrounding the conduct as well as its nature or degree.”
Finally, employees’ frustration with workplace inconveniences cannot be used as an excuse to be insolent to one’s employer. This proposition is more germane amongst lawyers, where accusations of unethical conduct are rarely dismissed as mere hyperbole.
For more information see:
•Bennett v. Cunningham, 2012 CarswellOnt 10166 (Ont. C.A.).
•McKinley v. BC Tel, 2001 CarswellBC 1335 (S.C.C.).
