Psychological Not Physical

The other six allegations span a period from 2017 to 2021. The Law Society maintains that on several occasions the respondent assisted his client EF in dishonest, fraudulent, criminal or illegal conduct. He did this by moving money received from EF through his personal and trust accounts, and by proposing a scheme to deceive a mortgage lender by making it look like EF was his employee.

 

Details of the harassment

 

The sexual harassment was not physical. It was psychological. The respondent did not proposition either employee, ask them out on a date, or touch them inappropriately. In fact, he believed that he had a good working relationship with both AB and CD because at times they went out for lunch or drinks together, and occasionally played practical jokes on one another.

But the respondent was in a position of power. As a sole practitioner, he ran the office and set the tone. The evidence shows that he created an offensive, sexualised work environment.

In November 2005, the respondent issued a memorandum to staff. We find that two excerpts of the memorandum show the tone that the respondent set. It was intimidating. He stated:

•        “… I am the boss. For better or for worse, right or wrong, I am the boss”; and
•        “… the next staff member who goes behind my back or contrary to my instructions, will no longer be employed with David Starr.”

One of AB’s tasks was to transcribe dictation of tapes recorded by the respondent. In December of 2005, the respondent gave instructions about transcribing his dictation. He told his employees to listen to the recordings from beginning to end:

I have had several situations over the last month or two, where I have dictated letters or drafted documents that have somehow not been returned to my desk.

Now I know that I have dictated this documents [sic], since I frequently rewind to hear what I have just dictated, and I quite commonly will do that on a paragraph by paragraph basis, therefore I know the material is on the tape, but somehow the material is not coming back to me.

Please be sure to double check the tapes where a file is included with a tape, and yet, nothing appears to be on the tape, run the tape to the end, or flip the tape over, or return the tapes to me with the letters in order that I can double check the same.

AB interpreted this to mean that she should listen to the whole of each recording while transcribing it. In our view this is an obvious and reasonable interpretation of the respondent’s directions.

The recordings included:

•        sounds of pornography;
•        sounds of the respondent masturbating; and
•        conversations the respondent had with friends about their respective sexual exploits.

AB provided the Law Society with five recordings made between October 2020 and April 2021. All of them had some sexual content. One of them contained a conversation that the respondent had with a friend in which he outlined his plan for a sexual rendezvous in the office with a partner who enjoyed bondage.

There were details in the recording that enabled AB to verify that this encounter did take place. We conclude that it is more likely than not that this encounter took place in the way described on the recording.

When AB was away, CD was responsible for transcribing recordings. So she was also exposed to the sexual content of the recordings.

In addition to the recordings, the respondent created an inappropriate, sexualised work environment in the following ways:

•        he openly made light of:

o   the “Me Too” movement, and

o   Jeffrey Epstein’s accusers;

•        he left a bottle of a sex performance enhancing substance in plain sight on his desk;
•        he kept boxes of a sex performance enhancing substance in his filing cabinet;
•        he stored sex toys in an overnight bag on top of a filing cabinet in his file storage area in the basement;
•        he had women’s lingerie delivered to the office on one occasion; and
•        he received an exotic dancing pole as gift at the office and kept it stored in the file storage area in the basement.

The respondent also made inappropriate comments to his employees, and about them to others. For example, he:

•        suggested that AB did not wear pyjamas to sleep;
•        texted CD while she was at her cottage to ask if she was wearing a bikini; and
•        referred to CD as a “nice blonde” who was working for him.

Both AB and CD provided detailed victim impact statements. In each statement, the employee describes the working environment as having a profoundly negative psychological effect on them. This includes feelings of anxiety, stress, guilt and a diminished sense of self-worth. The experience of working for the respondent damaged their physical and mental health.

Each employee says that the impact of the respondent’s conduct was not limited to affecting them personally. It radiated outward, negatively affecting their relationships with others.

Both AB and CD also say that their careers were damaged by the experience of working for the respondent.

While the respondent does not dispute that his conduct was sexual harassment, he claims that both AB and CD exaggerate the negative impacts of having worked for him. He says that their statements inflate his role because both AB and CD took part in office banter and practical jokes. They attribute many unrelated problems in their lives to him and his employment of them. He casts doubt on the credibility of their statements.

We reject his submissions on this point. While the respondent is correct that both employees took part in banter and practical jokes, in our view this does not lessen the impact that his sexualised conduct had on both employees.

Assisting fraud

The respondent provided legal services to EF in relation to three real estate transactions. He also assisted EF by using his trust account for purposes unrelated to providing legal services. Finally, he proposed a scheme to launder EF’s money by pretending to employ her.

Sanction

It is not necessary in the circumstances of this application for us to determine an appropriate penalty for the sexual harassment. This is because the respondent’s financial misconduct attracts a presumption of licence revocation.

•           the two instances where the respondent deliberately assisted EF in deceiving mortgage lenders by using trust money to inflate her assets;

•           the deliberate facilitation of money laundering by moving EF’s cash through his trust account; and

•           the proposal to set up a false employment scheme to facilitate the cleaning of money that EF would use to pay down a mortgage.

GuelphToday.com reported on the case. (Mike Frisch)