THE ADVOCATE 207
VOL. 79 PART 2 MARCH 2021
and criminal forms of sexual harassment can be reported to the police. Sexual
harassment by a lawyer may also be reported to the Law Society and
result in disciplinary proceedings. Different battlegrounds can lead to different
results, and the choice is not always an easy one.
“Choice of forum is tricky and requires careful consideration,” says Allison.
“Jurisdictional fights are counterproductive and expensive. Privacy,
timelines and possible value of awards vary widely between the different
fora.” Regardless of which forum is chosen, complainants should not shy
away from the details. “The key to a successful complaint lies in the
details—the more the better,” says Allison. “It makes the demand letter
long, but a description of the facts and the effect of the sexual harassment
is impactful.”
In the recent decision Deol v. Dryer Davison LLP,19 the B.C. Supreme
Court dealt with a jurisdiction challenge to the plaintiff’s choice of forum.
The plaintiff, a legal assistant, alleged that she had been subjected to inappropriate
sexual remarks and physical contact during her employment with
the defendant law firm. Instead of filing a complaint under the Human
Rights Code, the plaintiff brought a constructive dismissal action against the
defendant in the Supreme Court. The defendant applied to have the claim
struck out on the basis that it fell within the exclusive jurisdiction of the
Human Rights Tribunal. In dismissing the plaintiff’s application, the court
found that its jurisdiction was not ousted just because the same facts could
support a claim of discrimination under the Human Rights Code. The court
pointed out that the same set of facts could give rise to different legal
claims.
Sheard, who is counsel for the plaintiff, says that the way to address the
pandemic of sexual harassment is to increase punitive damage awards: “We
have to look at what is going on in the world at large, and no one is going to
say that there isn’t a problem here, so that means we do have a problem and
it indicates that none of the other heads of damages are doing what they are
supposed to do.” Sheard points out that while money is not supposed to
make a survivor whole (and no remedy can do that), money can be worth
pursuing, as it puts legal professionals on notice that sexual misconduct will
not be tolerated.
PROACTIVE SOLUTIONS TO SYSTEMIC PROBLEMS
Despite an increasing number of survivors raising their voices and choosing
to fight, proactive and systemic change is needed to address sexual harassment
in the legal profession. This needs to be more than harassment policies
and standard training. In 2018, the International Bar Association