Malcolm MacKillop Click here to see full sized version.

A former partner at McCarthy Tétrault LLP has won access to a wealth of top-secret data on the salaries, billing rates, performance reviews and other highly confidential information at the firm, one of Canada’s largest legal institutions.

McCarthys has been ordered to produce the data by Sept. 7 in what is believed to be the first time that a major national firm has been ordered to provide such a wealth of information on the compensation of partners, associates and other staff.

“We were very pleased with the outcome of the motion,” said Malcolm MacKillop, a partner with Shields O’Donnell MacKillop LLP in Toronto.  But he warned that he may well go back for more.

“We anticipate there will be further requests for disclosure,” he said, adding that he will be seeking full disclosure of all gender-related issues in the firm, including sexual harassment complaints and requests for pregnancy and maternity leaves.

MacKillop said he would keep the information confidential until the case goes to court.

Diane M. LaCalamita v. McCarthy Tétrault LLP was filed in the Ontario Superior Court of Justice on April 15, 2008.  LaCalamita is represented by MacKillop, one of Canada’s best-known employment lawyers, and by Mary Eberts, one of Canada’s most famous constitutional experts.

LaCalamita was given access to the confidential personnel files by Master Ronna Brott of the Ontario Superior Court of Justice (Commercial List) in orders dated April 23 and July 13.

The case concerns lawyer Diane LaCalamita, who was terminated by McCarthys in mid-2006 with the offer of a $200,000 settlement.  She turned down the money and sued for $12 million, alleging that the firm was “plagued by systemic gender-based discrimination and a culture of discrimination.”

LaCalamita alleged that she was recruited by McCarthys in 2001 and again in 2003 to help form a new intellectual property group.  She claimed she left her previous job at Aird & Berlis LLP when McCarthys offered her an equity partnership and/or an income partnership.

However, she alleged that McCarthys did not honour the agreement, denied her the equity partnership and subsequently terminated her.

Furthermore, she said in her amended statement of claim that her “practice was artificially restricted and isolated and commitments made regarding compensation and admission to equity partnership were ignored.  (McCarthys) used the Plaintiff’s specialized expertise for its own benefit while at the same time it limited and isolated the Plaintiff’s practice.”

LaCalamita has been unable to find work as a lawyer since her termination.

McCarthys had a different view of LaCalamita’s work performance.  In its statement of defence, it “concluded that LaCalamita was unable to meet the standards expected of senior lawyers practicing litigation with the Firm.  As there was no reasonable prospect of finding an alternative role within the Firm that was acceptable to both her and the Firm, and for no other reason, her employment was terminated.”

McCarthys “vigorously denies that LaCalamita was the victim of any form of workplace discrimination.  During her recruitment, and throughout the term of her employment, the Firm and its partners always treated LaCalamita with candour and in good faith.”

McCarthys is represented by Terrence O’Sullivan of Lax O’Sullivan Scott LLP of Toronto.

To back up her case for gender discrimination, LaCalamita demanded access to an internal report on women’s issues prepared by Catalyst Inc., a well-known consultant on feminist issues in the workplace.  McCarthys originally commissioned the report as part of its investigation of gender issues at the firm.

Master Brott ordered the release of the Catalyst report, saying it was both relevant and producible. 

“The plaintiff (LaCalamita) has pleaded and relied upon findings in the Catalyst report to support her allegation that she was the victim of gender discrimination that formed part of the culture at the firm,” Master Brott said, while noting that McCarthys specifically denies any culture of discrimination or any systemic gender-based discrimination within the firm.

In her April decision, Master Brott also ordered the release of confidential information on senior lawyers who were taken on as equity partners during the period that LaCalamita was denied a similar privilege.

But Master Brott drew the line at supplying every document that MacKillop requested. 

“The demand for every document relating to every senior laterally recruited lawyer is excessive and overbroad,” she said, restricting the documentation to lawyers with eight-plus years seniority in the intellectual property group, in the relevant period of 2003 to 2006.

Master Brott also insisted that names and other identifiable information be removed.

A decision on the other information that MacKillop wanted was put off until a subsequent hearing on July 13. 

In the second order, she praised McCarthys for offering considerable information, while limiting some of the material that MacKillop wanted.

McCarthys, she said, is prepared to provide detailed statistics on the year of call and billable hours for the intellectual property group, the compensation structure for income and equity partners nationally and the male-female ratio for lawyers admitted to equity partnerships, all for the 2003 to 2006 time period when LaCalamita worked there. 

Master Brott denied information for the period before 2003, saying it was too broad. 

But she ordered the release of national information, saying that restricting the data to the intellectual property group would be limiting.

For performance reviews, Master Brott cut back MacKillop’s demands and ordered the release of data for all those lawyers on a national basis who submitted applications to become income or equity partners and who were called to the Bar in the mid-1990s.

Master Brott granted MacKillop’s request for compensation data for every lawyer in the Toronto office, with information on gender, rank and year of call.  But she restricted the information to the 2003 to 2006 period.

Master Brott did insist on one key point, and that pleased McCarthys.  That issue was client confidentiality. 

“The defendant (McCarthys) has refused to divulge the information without a confidentiality order and I applaud their position,” Master Brott said.  “Confidentiality is the cornerstone of the solicitor/client relationship.”

O’Sulllivan also fought hard to keep disclosure within reasonable limits.

“The Plaintiff’s requests were excessive and over-reaching,” O’Sullivan said in a telephone interview. 

“Our views in that regard were largely sustained by what the Master ordered.”