Trial by press release a dangerous game if mishandled
Can PR campaigns hasten or prevent settlements? Howard Levitt explores issue.
Last week, I received a press release from a public relations employee acting on behalf of ThyssenKrupp, a German engineering company that sells elevator parts and service in Canada.
Its subject: “10 a.m. Monday — sexual assault from termination.” The email proceeded: “It’s got sex, drama, termination and a legal question that could potentially affect every work environment in Canada.”
In the body of the email, ThyssenKrupp’s representative gave the company’s version of a wrongful dismissal case brought against it by Mark Render, who was fired for the alleged sexual assault of a co-worker, Linda Vieira, five-and-half years earlier.
Attached to the email were the statements of claim and defence and a letter from Vieira providing her version of events and its impact upon her.
It concluded that “my employer ThyssenKrupp did the right thing when it fired Mark Render, the man who sexually assaulted me. I can now only hope and pray that the court system does the right thing too.”
Most companies, rightly or wrongly, work assiduously to keep their cases out of the press. ThyssenKrupp, on the other hand, chose to launch a public-relations campaign against the employee suing it.
There is a legal debate as to whether it is appropriate to hand out copies of statements of claim or defence. My practice is to let journalists know, when asked, where a pleading can be found so that they can research it themselves in the public record.
You might have observed that, invariably, when a pleading is written about, words of caution such as “the Plaintiff alleges” etc., are used to avoid any risk of being sued for defamation.
But whatever privilege a pleading may have, a witness/victim impact statement such as Vieira’s has no analogous protection and indeed, no protection at all.
If Render is successful and the judge makes findings of fact inconsistent with Vieira’s version, she has opened herself up to a libel case. One would have to imagine that Render would be quick to sue her if the judge finds the comments in her letter to be false. Vieira, who wrote that she had wished to put this behind her, might, by her own act, relive it for years to come.
My other thought, when reading ThyssenKrupp’s press release, was that it might be a tactic to pressure Render into dropping his case, fearful that a group of unsympathetic journalists might appear in the courtroom and, given the everlasting nature of the internet, permanently damage his reputation.
But ThyssenKrupp’s PR initiative was thin gruel compared to a news conference held last week announcing a $15-million defamation lawsuit launched by ex- OPP officer Brad Blair against Ontario Premier Doug Ford and several top-level civil servants. During that event, just to set the tone, Blair’s lawyer Julian Falconer said that “the Premier and the Minister (Sylvia Jones) lied to the people of Ontario.”
At the press conference, Blair said that “... due to my efforts in safeguarding the independence and credibility of the province’s largest service from improper political interference I was fired.” Comments such as that seemed almost to invite a counterclaim for defamation.
The real question is whether such publicity campaigns will hasten settlements or actually prevent them. In my own experience, when a client has particularly damaging material on its opposition, that is fuel for settlement. Once publicized, the information loses its settlement value.
If Blair’s goal was to pressure the defendants into settling, wouldn’t a draft claim that is unpublicized and never served better serve that interest? That, of course, assumes that Blair’s goal is monetary rather than public vindication and punishment of those whom he believes wronged him.
I have always viewed every case from a reputational standpoint and that informs, to some extent, almost everything I do in litigation. Even the simplest case should be developed so as to appeal to the emotions, as well as the intellect, of the trial judge. You need to expand that approach only moderately to portray your case to the general public.
Maybe ThyssenKrupp is smart in virtue signalling its opposition to sexual harassment and, if it loses, it can double down by decrying that the law is not as virtuous as the company.
But both ThyssenKrupp and Blair are playing dangerous games if mishandled.
Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt. hlevitt@levittllp.com Twitter.com/HowardLevittLaw