Lawyer dismisses associate for lack of work then claims just cause

Senior lawyer claimed just cause after junior lawyer filed wrongful dismissal complaint

An Ontario lawyer is entitled to two months’ pay after the Ontario Superior Court of Justice has ruled she wasn’t fired for a shortage of work.

Sharon Johnston was hired in January 2004 as an associate by Leonard Levencrown, a lawyer with his own family law practice in Ottawa. The two had a good working relationship during Johnston’s two years with Levencrown’s practice.

Eventually, the practice began experiencing financial difficulties and Levencrown couldn’t afford to give Johnston an annual raise. The practice was finding it hard to pay its own legal fees, there were no new clients and overdue accounts weren’t paid. On Feb. 8, 2006, Levencrown told Johnston there was a lack of work. He issued a record of employment stating lack of work as the reason for termination and told a colleague he didn’t have enough work to keep both of them occupied.

However, Johnston filed a wrongful dismissal complaint and Levencrown claimed to the court she had resigned because of the lack of work and also said she didn’t perform her duties to his satisfaction or according to the contract of employment and her job performance “was a major factor” in his decision to terminate her.

The court found Levencrown’s claim of resignation lacked credibility, particularly since he appeared nervous and acted in “an extremely bizarre manner” during the trial. Since the argument Johnston resigned wasn’t introduced until the trial started and wasn’t very convincing, the court found Johnston had been dismissed.

Levencrown was ordered to pay Johnston, who had worked for him for two years and one month, two months’ notice. Minus the severance he gave her already, this amounted to $9,244. Though it found Levencrown acted inappropriately towards Johnston before and during the trial, the court said aggravated damages weren’t called for. However, it warned Levencrown that similar behaviour wouldn’t be tolerated in the future, particularly in the context of the relationship between junior and senior lawyers.

“Senior counsel holds the power and is capable of destroying the reputation of the junior without much difficulty and with impunity,” the court said. “The associate is always vulnerable in this relationship. I put (Levencrown) and other like-minded employers on notice that such behaviour is not acceptable at any time.” See Johnston v. Levencrown, 2008 CarswellOnt 2490 (Ont. S.C.J.).

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