A B.C. lawyer who admitted to professional misconduct in sexually harassing two employees of his law firm at an open-bar event has been suspended for six weeks and ordered to pay costs of $2,500.
The Law Society of British Columbia Tribunal Hearing Division also said it would have considered imposing a lengthier suspension if not for a rule that prohibits it from diverging from joint submissions on disciplinary action unless the penalty is “contrary to the public interest.”
Background
The lawyer, SJ, was called to the bar in September 2001 and in 2015 became a partner with a law firm in Langley, B.C. He practises primarily in the area of business and real estate law.
On June 20, 2020, the firm held a summer event at a restaurant in Vancouver with an open bar — about 40 of the law firm’s 50 employees attended.
It provided round-trip bus transportation from its offices to the restaurant. It wanted staff to sit one person per row on the bus to maintain physical distancing because of COVID.
The first allegation: The ‘creepy uncle’ and the ‘food baby’
The first allegation of sexual harassment came from A, an associate lawyer with the firm who had been mentored by SJ. Both A and SJ took the bus from the law firm to the restaurant.
During the bus ride, he complimented her on her sunglasses and the colour of her lipstick. At the event, he performed what he called a “creepy uncle” routine. It involved him peering around a corner and staring with a creepy expression on his face.
He performed the routine both inside and outside the restaurant. During dinner, he appeared at A’s table about four times as “creepy uncle.” SJ felt the routine — which he had done before — was a funny joke and a parody of an uncle who behaved oddly, but not in a sexually suggestive manner.
Several times during the event, SJ stood close to A and put his hands on the back of her chair. After eating, A said she had become bloated from dietary issues. SJ said he heard A say she was pregnant with a “food baby.”
A began visiting colleagues’ tables and making jokes about the food baby. After she visited several tables, SJ joined in and joked that the “baby” was his. He held her close, by the arm, and touched her stomach with his other hand as part of the joke.
At one point, he pulled her aside and and told her — all kidding aside, and with her eyes — they would make a really good baby together and that he would take care of her and she would not have to worry about anything.
On the bus ride back, SJ had a container of alcohol in his jacket pocket and he consumed more alcohol. For part of the ride, SJ sat next to A and said she had been “ballsy” to ask for a raise and that his law partner was mad at her for doing so. He also talked about the stress of being a partner and how the firm wasn’t making money during the pandemic.
On June 23, SJ apologized to A in person for his behaviour. On July 7, A met with the other partner at the firm to tell him about SJ’s behaviour and provide him with her written notes on the matter.
On July 8 and July 9, A met with the person at the firm responsible for human resources to discuss SJ’s behaviour. She then retained counsel in relation to her workplace concerns and filed a workplace bullying and harassment report in August 2020 with WorkSafeBC in relation to the firm.
On Sept. 4, 2020, the law firm revised its respectful workplace policy and implemented a bullying and harassment policy in its place. The new policy included third-party whistleblower protection and was approved by WorkSafeBC.
On Oct. 7, 2020, WorkSafeBC issued an inspection report finding that the employer’s response to A’s complaint was compliant with the Workers Compensation Act.
On Oct. 19, 2020, A approached SJ to discuss the event, but he declined. A then advised SJ she would tender her resignation, and she did so — handing it in to the person responsible for HR. In January 2021, A filed a discrimination complaint against SJ and the law firm with the BC Human Rights Tribunal. She alleged constructive dismissal and she also believed it was clear she had no future at the firm given that SJ was in a position of power.
In May 2021, WorkSafeBC found a s.21(1)(a) order should be issued to the firm and it also directed that the firm conduct a new investigation through an impartial third party. That investigation was conducted but both A and B (the victim in the second allegation) declined to participate in it.
The second allegation: ‘Creepy uncle’ strikes again
The second allegation arising from the event came from B, who was employed by the firm as a legal assistant at the time.
She also rode the bus to the event, At the event, SJ stood behind her and performed the “creepy uncle” routine while she was seated at a table. He leaned over the back of her chair and, in doing so, brought his head and upper body quite close to her — they almost touched and it made her feel uncomfortable. A photograph of that moment was included in the Agreed Statement of Facts (ASF).
On the bus ride back, SJ was near the back of the bus and was dancing in the aisle. While standing behind B, he moved his hand toward her head. B pushed his hand away and told him not to touch her head.
He responded by saying words to the effect of “it’s not like I made this motion.” He then proceeded to make a downward gesture with his hand, miming a sexually suggestive act involving a head moving towards his crotch.
He did not touch her head when he made the comment and gesture, and he walked away after B told him to “buzz off.”
B reported SJ’s behaviour on the bus to the HR person during her annual review. When asked if she felt comfortable working wtih SJ, she replied that she felt comfortable knowing that she and SJ worked in separate offices of the law firm.
Admission and apology
SJ admitted to sexually harassing both A and B in a letter to the hearing panel and that his conduct constituted professional misconduct contrary to the Legal Profession Act.
He also offered the following apology:
“Finally, further to my apology in person to A on June 23, 2020. I wish to take this opportunity to apologize for my behaviour on June 20, 2020 at the Event. My behaviour was unacceptable and I am disappointed in myself. I recognize that my conduct at the Event fell short of the reasonable expectations of the profession and the public. I did not intend to upset A and B, but I recognize that they were upset by my behaviour that evening and I apologize for that. I have taken mindful steps to ensure that such conduct is not repeated.”
He consented to the six-week suspension and to pay costs in the amount of $2,500.
The ruling
The Law Society of British Columbia Tribunal Hearing Division noted that a hearing panel is prohibited from diverging from joint submissions on disciplinary action “unless we find that the proposed penalty is contrary to the public interest in the administration of justice.”
The panel said SJ’s behaviour constituted sexual harassment.
“We have taken into account all of the circumstances and find that a reasonable person would have known that the conduct of a firm partner making sexual comments and gestures to two junior female employees would be objectively unwelcome behaviour,” it said.
It noted that an aggravating factor was that SJ was in an employee-employee role with both A and B, and attending a firm event as a partner.
“Given that power imbalance, the Respondent should have been aware that he should avoid any conduct that may be objectively viewed as unwelcome conduct with his employees,” it said.
It said it expected the six-week suspension would have “both a specific and general deterrent effect.” But it also pointed out — if it weren’t for the constraints of Rule 5-6.5, which prohibits it from diverging from joint submissions unless the penalty as contrary to the public interest — it would have “considered imposing a lengthier suspension.”
For more information, see Johnston (Re), 2023 LSBC 16 (CanLII)
