A former McCarthy Tétrault lawyer is suing the firm over sex discrimination.
Diane LaCalamita speaks exclusively with
Canadian Lawyer about the case.
It’s an irony that an law firm hailed as “the most thoughtful and progressive” on the issue of advancing and retaining its female lawyers has been hit with a sex-discrimination lawsuit. Yet in April, Diane LaCalamita, a onetime lawyer with McCarthy Tétrault LLP in Toronto, launched a lawsuit against the firm, claiming it “artificially restricted and isolated” her practice and failed on its commitment to advance her to equity partnership, instead dismissing her after three years of employment with the firm “without reason or explanation.”
McCarthys denies the allegations of sex discrimination, claiming LaCalamita could not be promoted or ultimately accommodated in the firm because her performance was substandard.
LaCalamita’s counsel — employment lawyer Malcolm MacKillop, of Shields O’Donnell MacKillop LLP, and equity lawyer Mary Eberts — are basing their claim on rule 5.04 of the Law Society of Upper Canada’s Rules of Professional Conduct, which notes a lawyer’s “special responsibility . . . to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code). . . .”
MacKillop says: “Rule 5 particularly applies to the legal profession, and has never been litigated. Is a court willing to enforce the implied term in the Rules of Professional Conduct?”
This is not the first charge of sex discrimination at a major Canadian law firm; at least two other large Bay Street firms are reported to have had complaints made against them but quietly settled out of court. And the issue of retention of women in the practice of law has become increasingly prominent in the last decade, with law societies striking task forces to study the issue, and releasing reports and recommendations.
“In my opinion, this type of litigation is going to advance the interests of women lawyers across the country,” says MacKillop, in demonstrating “the failure to break down systemic barriers.”
On a warm summer afternoon, flanked by her lawyers, Diane LaCalamita meets with Canadian Lawyer for an exclusive interview. Her story, she says, begins with her family background: the granddaughter of Italian immigrants to Canada, the daughter of a photographer father and a trailblazing pharmacist mother. LaCalamita excelled academically, and after studying life sciences at the University of Toronto she discovered intellectual property in law school.
Following graduation and completion of her articles at then-IP firm Sim Hughes Dimock, she earned an LLM from the University of London, England, specializing in IP and information technology law. Her career then led to another IP boutique, Deeth Williams Wall LLP, then to Aird & Berlis LLP.
Around 2002, McCarthy Tétrault was starting to build an IP sub-litigation group and invited her to join. “I had a good reputation in the bar and in the field for at least 10 years,” says LaCalamita. “I was a solid performer and I had the senior-level skills and expertise [in IP, pharmaceuticals, and biotechnology] that they wanted to build their profile in these practice areas.” She chose McCarthys over other firms for the opportunity “to be in on the ground floor” of this IP sub-litigation group.
But her expectations weren’t met at the new firm. Hired as counsel in March 2003, LaCalamita says she understood she would be allowed to continue a combined solicitor/litigation practice, and that she would be recommended and considered for equity partnership commencing January 2004.
Neither, she claims, turned out to be the case. Three years later, having been promoted to income but not equity partner, she was let go. McCarthy Tétrault paid her $200,000 in severance. LaCalamita, who is currently not working but looking for a new position, had been earning $300,000 a year and is now seeking $12 million in damages.
In its statement of defence, McCarthys denies LaCalamita was promised she would be able to practise law as both a solicitor and a barrister, or that she would be made an equity partner within one year of being made an income partner.
“Admission to equity partnership requires ‘enthusiastic reception’ by the partners of the firm,” and the plaintiff “never performed at the level required for admission to equity partnership,” says the statement of defence, citing the plaintiff’s inability to meet deadlines or the minimum expectation for billable hours, and her poor judgment as a litigator. McCarthys is represented by Terrence O’Sullivan and Michael Sims of Lax O’Sullivan Scott LLP.
