More and more, victims of sexual harassment and sexual assault are seeking justice through Ontario’s Human Rights Tribunal system as an alternative to the formal court system. The tribunal is a quasi-judicial body that resolves claims of discrimination and harassment based on grounds such as gender.

There are a few reasons why victims might choose to go the tribunal route.

The Human Rights Tribunal is far easier to navigate than the traditional court system. There are fewer rules, and claims often get heard within one year. This is significantly shorter compared with the court system, where cases can take on average two to three years to see the inside of a courtroom.

Criminal courts do not award monetary compensation for victims. Instead, the state prosecutes the perpetrator on behalf of the victim. If a conviction is achieved, the state doles out a punishment. However, the victim is left with no assistance to help with the immense pain, life disruption and suffering that comes with being a victim of an atrocious crime.

Tribunals, on the other hand, have a great deal of power and can award large damages. While the norm used to be $25,000 to $40,000 damage awards, much larger tribunal awards are becoming common. The high water mark for an Ontario Human Rights Tribunal award for sexual assault and harassment isaround $200,000.

Attempting to seek justice through the criminal court system can also be a gruelling, intimidating and de-humanizing process for individuals who have been traumatized by sexual abuse. The recent high-profile trial of Jian Ghomeshi highlighted the difficulties of being a victim in the criminal court system. A victim’s credibility goes on trial, their private lives go under a microscope and they re-live the trauma each day in the courtroom.

But the tribunal system also has much room for improvement.

One of the pillars of the court system in Canada is that it is public and transparent. Anyone can attend trials to watch proceedings, and documents filed in court proceedings are almost always accessible to the public.

This transparency and openness does not exist in the tribunal system. Documents and records are typically not readily accessible by the public, which is something the Toronto Star recently took issue with.

Recently, the Star launched a constitutional challenge against the province over the restrictive access to tribunal documents. In many cases, the tribunals require people to file “freedom of information” requests to access tribunal documents. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible.

Additionally, tribunals don’t need to comply with the rules of evidence as in the formal court system. The evidentiary standards and burden of proof are more relaxed, and the tribunals don’t have the same level of public scrutiny that the courts are subjected to.

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. However, these days important cases are litigated in the tribunals, especially with respect to sexual abuse and harassment.

Changes need to be made to make tribunals more open, transparent and rigorous in order to maintain the integrity of the system.

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When it comes to business development, it seems like the legal profession has run out of ideas. Lunches, hockey games and golf tournaments are the standard fare.

These options favour the partners with the firm credit card. They can rack up big tabs at restaurants and take clients to see the Raptors courtside. But there are so many other ways to rock business development. You just need creativity and some healthy shamelessness. Here are some outside-the-box strategies that any busy lawyer can adopt.

Really use that LinkedIn account.

If you spend time writing thoughtful blog posts on legal news, hoping to catch the eye of a potential client, don’t just post them on your firm’s website. Publish them on LinkedIn, too. Think about it. People check social media throughout the day, but how many of us cruise law-firm websites?

Be creative with client outings.

Don’t reflexively take all your clients to fancy dinners. Instead, take a minute and think about what they might actually find fun. If one client is bookish, head to Indigo and browse around with coffees in hand. For the gamer, try a games room like The Rec Room in downtown Toronto. And if you have a bona fide sports fan on your client roster, why not skip the run-of-the-mill Jays game and go axe-throwing?

Know what keeps your clients up at night.

If your client runs a tech startup, research the heck out of their product. Set a Google alert on your phone so you instantly receive news that affects the industry. Then, next time you’re on a call, mention what you’ve learned. This will show your clients that they’re always on your mind.

Business development isn’t just for the most senior lawyers. It’s something every lawyer should start doing from day one. Try different things and find what works for you. And you if you keep it fun and enjoyable, your clients will notice.

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Last Saturday, during its convention in Halifax, the Liberal Party held a session for its delegates called “From #MeToo to #NeverAgain: Creating Safe Work Environments.”

While the session was closed off from the media, the Liberals made sure it was highly publicized. Trudeau attended the session, along with his principal secretary Gerald Butts and Kent Hehr, a Liberal MP who is presently being investigated for claims of sexual harassment against a staffer.

Something isn’t right with this picture.

Since 2013, six Liberal members of Parliament have been accused of sexual misconduct, and one top PMO staffer. And the party’s response to these types of allegations is not improving.

Thus far, the Liberal Party brass’ response has been inconsistent and confusing, which are cardinal sins when dealing with allegations of sexual misconduct. While some of the MPs accused of sexual misconduct have been suspended from caucus, Kent Hehr still remains in caucus.

Trudeau himself appears baffled about how to respond to claims of sexual misconduct within his own ranks, and has said, “I don’t have a rule book that’s been handed down to me from Wilfrid Laurier as leader of the Liberal Party on how to handle these situations” and “this is new for organizations to have to deal with in this way and we are doing the best that we can on a case-by-case basis.”

But the thing is, it’s not new. Workplaces have had to deal with sexual harassment and abuse for a long time. There is an entire section of employment law devoted to this. There are countless human resources consultants who specialize in crafting sexual harassment policies and conducting training. This was all available before the #MeToo movement hit.

Trudeau’s government recently tabled Bill C-65 which amends Canada’s Labour Code, as well as other legislation, to include harassment and will apply to Parliament Hill. However, the bill, inexplicably, didn’t even include a definition of “harassment” when it was tabled. The bill is still in the committee phase and, after much wrangling, it appears a definition of harassment, albeit vague, has been added.

Further, Bill C-65 provides zero protections for soldiers in the Canadian Armed Forces, despite the fact that that sexual harassment and assault within the Armed Forces has been reported to be a major problem that the government is well aware of.

In fact, the government is currently fighting a class-action against current and former members of the Armed Forces who alleged they were the victims of sexual harassment, violence and discrimination.

One of the defences put forward by government lawyers is that it does not “owe a private law duty of care to individual members within the CAF to provide a safe and harassment-free work environment, or to create policies to prevent sexual harassment or sexual assault.”

Trudeau has said that this argument does not reflect his personal views. It is puzzling, then, that nothing is being done to protect Armed Forces members in Bill C-65.

To deal with sexual harassment allegations in the PMO, Trudeau announced that two “senior aides” will be responsible for receiving complaints of sexual harassment from ministerial staffers.

The Liberals are badly stumbling in the dark when it comes to taking action on workplace sexual misconduct, and they are making a lot of errors.

Firstly, only trained human resources professionals should be tasked with receiving harassment complaints. Not “senior aides.” How can a staffer feel comfortable and secure going to another staffer with a serious complaint of harassment?

Secondly, a clear, standalone sexual harassment policy needs to be implemented immediately. This policy should be plainly written and contain a clear definition of what behaviour constitutes sexual harassment. There should never been any confusion about what behaviour is not acceptable in a workplace.

Thirdly, every complaint should follow the exact same process, no matter who makes the complaint or who it is against. Consistency is key. It should not be “case by case,” as Trudeau has said. The policy should be the same for everyone for the sake of procedural fairness.

The #MeToo movement isn’t just lip service. It is an overdue wake-up call and demands immediate action, which must be done right.

 

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Domestic and sexual violence leave is now a job protected leave of absence in the workplace. Here are some things that employers can do to support employees who are victims of domestic and sexual violence:

Checklist for Employers:

1. The employee should have access to resources such as helplines, trauma centers, counsellors, legal help and medical assistance. Put together a list of resources and support the employee in accessing help.

2. Ensure the employee has access to somewhere safe to stay and has alerted close friends and family members who may assist.

3. Ensure the office is safe. Access to the office should be restricted to employees. If the washroom is shared with other offices on the same floor, access to it should also be restricted to individuals who have a key or know the door passcode.

4. Be vigilant in protecting the privacy of the employee. The employee’s home phone number/cell number should not be listed on the employer’s website and should never be given out to individuals calling the office. It is not uncommon for domestic abusers to attempt to access their victim through his or her place of employment.

5. Human Resources staff should be trained in how to support victims of domestic and sexual violence. Consider inviting someone with expertise in the field to attend your office and conduct a training seminar to management.

6. Ensure that all employees know about their right to a leave of absence in the event of sexual or domestic abuse – this should be included in the company employee policy.

7. Have clear policies on what evidence, if any, you require from employees taking this leave. In addition, have clear policies on what, if any, notice you require.

Checklist for Employees:

1. Understand your right to a domestic or sexual violence leave, the eligibility criteria and the notice requirements. These can be found here.

2. Seek medical assistance and trauma support and ensure this is documented.

3. If you intend on taking leave, give your employer notice and ensure it is documented in writing.

4. Understand your employer’s written policy for taking a leave of absence and ensure you have a copy.

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It’s official. The #MeToo movement has hit Canada. It is sweeping politics and has hit the media sector as well.

It is unlikely that any major industry will be left untouched by this powerful movement. So some have been asking — when will #MeToo hit the legal sector? It is hard to find any woman in law who hasn’t experienced some sort of sexism. But law is a discreet industry: lawyers, by training, keep things quiet. I think it’s unlikely that the #MeToo movement is going to affect the sector in the same way it has impacted other industries.

That said, the Law Society of Ontario is alert to this movement. It recently sent an email to all of its members, reminding us of its Discrimination and Harassment Counsel Program. This program confidentially assists anyone who has experienced discrimination or harassment by a lawyer or paralegal.

This program is one of the few windows we have into harassment and abuse in the profession. It publishes semi-regular reports about the complaints it receives. In its most recent report, which details complaints issued in the second half of 2016, the anecdotes are striking. There is, for instance, the female articling who reported she “was sexually assaulted by her male principal at an after-hours work-related social event.” There is the female lawyer who complained about “a male opposing counsel’s paternalistic and sexist communications.” And then there is the female articling student in private practice who reported that her firm’s partners “mis-handled her complaint about a sexual assault by a client and committed reprisals against her for having made the complaint.”

It would be interesting to know what the outcome of these complaints was — and if complaints have spiked in recent months.

I anticipate that the greatest impact this movement will have in the legal industry is a subtle shift in workplace cultures. Law firms may be taking a look at their own internal sexual harassment policies to ensure they are effective and up-to-date. There may be less tolerance given to behaviour that would have been brushed off several years ago.

One of the most interesting things about the #MeToo movement is the timing. Why now? The major waves of the feminist movement happened decades ago. Women have had legal protection from sexual harassment in the workplace for years.

The timing likely has to do with the fact that women have finally reached a critical mass in power positions in the workforce. There are more women CEOs, presidents, partners and executive board members than ever before. This creates a more supportive environment for women to come forward with allegations of misconduct.

I believe our social-media culture has also played a role. People have gotten used to sharing just about everything on social media, including sensitive issues that were once stigmatized (like mental health). There is something very empowering about being able to share your story in your own words, on your own terms, which many of the more prominent #MeToo champions have done. The act of sharing personal stories online creates an instant community of support when others share your post, comment positively and “like” it.

There has been criticism of the #MeToo movement. Some have called it a witch hunt and have complained it promotes a presumption of guilt. All major social movements that come in with a bang face push back. I think it’s is a fair point that there is a certain “mob mentality” that the social media world tends to facilitate. Due process and fairness are important and cannot be overlooked.

But on the whole, this movement will probably have a bigger impact on women’s rights and equality than anything else in the past 30 years. And it’s about time.

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