What I would do if I were counsel for Weinstein victims

As new victims of Harvey Weinstein’s predations come forward and sue, it might be particularly interesting to see who it is that gets sued.

It is difficult to imagine that the Weinstein Company will continue as an entity. Whether it changes its name, as it asserts it will, the stigma will remain. Will it be able to attract financial backing for new movies, let alone the casting agents and talent that it requires to compete? Harvey Weinstein, facing the risk of criminal prosecution, might do what film director Roman Polanski did when embroiled in a statutory rape case in the 1970s and decamp to a more friendly jurisdiction from where he could not be extradited for criminal prosecution.

But what might be most remarkable in this situation is the legion of enablers at Weinstein Co., who might not escape personal liability. If I were acting for any victim of Weinstein’s sexual predations, I would recommend suing those people.

His conduct was an open secret in Hollywood and beyond, with Casablancan claims by the Clintons (and others) to have been shocked and appalled by these revelations; their offer to quickly return his donations rings hollow. Even President Trump, much less close to Weinstein than the Democrats and no stranger to such allegations himself, acknowledged immediately that the “news” came as no surprise to him.

If there were multiple payoffs in the past by the Weinstein Company, then others in that organization were well aware of his pattern of conduct. They permitted such conduct to continue. For that matter, they allowed Weinstein to continue in his role as CEO; the board of directors were always in a position to fire him. It may well be that the company’s directors, who now unanimously voted to remove him, were as unaware as they claimed, but that only exacerbates the culpability of the company’s senior executives for not exercising proper corporate governance and advising the directors of his conduct toward the various women who were offered considerable sums to buy their silence. Can one imagine, for example, that the company’s chief human resources officer and legal counsel were not ankle deep in those settlements and did not know the sordid details contained in the claims?

The Weinstein Company says it will now conduct a workplace investigation. Once suspects that to be purely a sanitizing PR exercise that will, like the one at CBC after the Jian Gomeshi scandal, unearth little if any significant facts that were not already known. But what it might do is uncover the identity of the enablers. Who precisely was aware? Who enabled the conduct? What actions were taken to stop him? Was any member of the board notified? What emails are there discussing any of these settlements? Whom did the previous women complain to? What action was taken then?

Those enablers may become the ultimate “deep pockets” upon whom the lawsuits can focus.

Women in Canada who have faced similar sexual harassment or assault can take their claims to Human Rights Tribunals or sue in the courts for constructive dismissal. They can also (while there have been very few such cases in this country, I predict more) pursue the dramatically greater damages flowing from the negligence of those who permitted the predations to continue, and who failed to warn women before they were placed in what was known to be a vulnerable position. In my view, they have that duty of care to potential victims.

The most significant point for victims of sexual assault to remember is that the imbalanced criminal process that has chilled complaints in this country is not and should not be their first recourse. The first recourse should be internal complaints to the company, either directly or through counsel. In most provinces, companies are required to have grievance procedures for harassment. If that process fails and the victim does not obtain the potential remedial relief, they have access to the human rights tribunal or the courts, with the courts providing generally broader relief, such as negligence claims. The process there is balanced. Unlike criminal courts — where the Crown has to provide all evidence to the accused — the reverse is not true in civil cases, where both parties have to provide others with all their documents in advance.