Unwelcome Conduct Draws Four-Month Suspension

Unwelcome sexual conduct toward two female employees has resulted in an attorney’s four-month suspension by the Ontario Law Society Tribunal Hearing Division as proposed by a joint penalty submission of the parties

In the summer of 2017, when she was 23 years old, Person A worked as a summer law student at the Firm. Starting in the summer of 2018, she returned and completed her articles of clerkship with the Firm as part of the LSO’s licensing process. After being called to the bar, in the summer of 2019, Person A became an associate at the Firm.

In August 2017, soon after Person A accepted the articling position and told Mr. Moubarak she felt some commitment to the Firm, Mr. Moubarak started to behave inappropriately toward her. Examples of his inappropriate communications are text messages in which he called her “hun,” told her that he missed her when they were apart, and that he was “excited” to see her.

Escalation

Mr. Moubarak asked Person A to send him photos of herself and tried to pressure her into letting him drive her to work, going out to dinner alone with him, or spending time alone with him in the office. Mr. Moubarak also told Person A that he wished he had met her 10 years before, which would have been when she was 15 years old. Mr. Moubarak began addressing her as “love of my life” or “LOML,” in his messages, and told Person A that he changed her name in his phone directory to a name with the initials DL, which he advised stood for “on the downlow,” meaning that she was a secret. Mr. Moubarak refused to accept that Person A did not have feelings for him.

Mr. Moubarak made unwelcome physical contact with Person A by putting his hand up for a high-five, and then grabbing her hand and kissing it when she reciprocated. Mr. Moubarak repeatedly asked Person A for hugs, tried to put his arms around her from behind to hug her, and once hugged her and kissed the top of her head as she was leaving the office. Person A asked him to stop touching her in these ways because it made her uncomfortable and was inappropriate.

Mr. Moubarak’s harassing comments made Person A feel uncomfortable. Person A firmly rebuffed Mr. Moubarak’s flirtations and advances both in messages and in person. She told him repeatedly to stop; that she did not reciprocate his romantic feelings; and that she just wanted him to treat her professionally. Despite the foregoing, Mr. Moubarak’s behaviour persisted until Person A quit in November of 2019.

Person B

Person B was 23 years old in 2017. From 2017 to October 2019, Person B was employed at the Firm as a law clerk. Things went well for Person B’s first year with the Firm. She felt that she built trust. She and Mr. Moubarak had a decent relationship. He felt that he was tough but that he was also kind of sweet to her.

But then

 On or around December 10, 2018, Person B wore a long black sweater dress to work. That day, Mr. Moubarak emailed Person B and began talking about her appearance: “U got 10 points over [a girl he called awkward].” In that message, Mr. Moubarak called Person B “Santas [sic] helper in the boots and dress … U know I meant that sweater naughty elf dress. LooL ;)” Mr. Moubarak also referred her to as “naughty Christmas” that same day when she attended his office. Person B tried to not cross his path that day. On December 13, 2018, Mr. Moubarak sent Person B a series of emails in which he referenced her dress and/or her appearance.

In the summer of 2019, Person B wore a skirt to work. Mr. Moubarak stared at her body, and later called her at her desk and asked her to come to his office. Person B told Mr. Moubarak that she was on her way, and Mr. Moubarak responded, “Mm, I can’t wait ‘til you get here.” When she arrived at his office and asked what Mr. Moubarak needed from her, he said he didn’t need anything, but told her “I just wanted to tell you that I think the skirt you’re wearing is the sexiest piece of clothing you own.” When Person B said she was going to leave, Mr. Moubarak said, “Mm, ok, I’ll be watching as you walk away.”

Sanction

Considering penalty goals, the Aguirre factors and comparable cases, we accept the joint penalty submission for a suspension of four months.  The suspension is significant and it will achieve the various goals of deterrence and maintaining public confidence.  It is also generally consistent with penalties in analogous cases.

(Mike Frisch)