The allegations stem from a firm party held in January 2009 at the Toronto nightclub Cheval.
The case raises an interesting challenge of the intracorporate privilege that protects employees in making such complaints to appropriate officials. Cowling, 43, alleges that Jakibchuk and Diebel, defamed him when they spoke to other partners and staff about his conduct. He charges that the comments were made out of a malicious purpose — an exemption to the qualified privilege in the United States.
The complaint references a 13-page letter written by Diebel to partner Neil Ornstein, which she asked him to keep “confidential and read it in a private place, as I regret to say its subject is unpleasant.”
The letter described partners as being “extremely intoxicated,” engaging in lap dances, and hitting on younger women. The event had an open bar — something that is often discouraged in the United States to avoid dram shop and negligence claims.
Jakibchuk notes that he was asked to confirm the allegations and was asked to meet with Ornstein and Joseph Liberman, another partner at the firm, under confidential guarantees.
The protection of intracorporate privilege can be lost when statements are made for a malicious purpose or to individuals in a corporation who are not tasked with addressing such complaints. In this case, the two young lawyers were clearly speaking to appropriate officials and the only question would be whether the claims were made out of malice — a difficult claim to establish in such a case.
Source: Financial Post.