Lawyer sues ex-employer Milburn & Associates for allegedly cultivating a toxic work environment

A Toronto lawyer is suing her former employer, Milburn & Associates, for allegedly cultivating a toxic work environment and violating the Employment Standards Act, the Law Society Rules of Professional Conduct, and the Human Rights Code.

Employment lawyer Kathryn Marshall, who worked as an associate, is suing Jane Milburn for intentional harassment and bullying, breaching the ESA, depriving her of earned bonuses, treating her in bad faith, humiliating her in front of colleagues, retaliating against her for resigning, fabricating allegations and violating the LSO rules of professional conduct by recording her.

Marshall is seeking $150,000 in damages for breach of contractual duty of good faith, honesty and performance before and after termination, recruitment incentive payment damages of $15,000 and $6,000 for accrued but untaken vacation days. She also seeks $100,000 for intentional infliction of mental suffering and punitive damages of $250,000.

Jane Milburn & Associates has denied the allegations in the statement of claim and is countersuing Marshall, claiming that the lawsuit makes several false allegations and is advanced solely to cause embarrassment to the firm.

Milburn is requesting an order requiring Marshall to produce the memory stick containing documents copied from the office server, destroy copies of all confidential or proprietary information belonging to the firm in her possession and produce all-time dockets, accounts and other financial details issued by her new employer regarding client files she transferred from the firm.

Milburn is also countersuing for damages of $100,000 for breach of contract, misappropriation, breach of trust, and duty of good faith regarding the documents collected by Marshall. Milburn also seeks damages for quantum meruit and unjust enrichment regarding any fees owed or which Milburn & Associates should have billed concerning clients who moved to Marshall’s new firm.

Milburn hired Marshall as an associate in July 2020 and, under the terms of her written employment agreement, earned a base salary of $170,000 for 1,400 to 1,600 billable hours yearly, including premiums. Marshall was also entitled to four weeks of paid vacation annually.

Marshall claims that within the first few weeks of her employment, she witnessed concerning behaviour from Milburn, including disparaging a former partner who resigned from the firm and violating privacy and the Ontario Human Rights Code by making derogatory comments about the ex-partner’s health. 

Marshall alleges that staff frequently complained about Milburn’s toxic behaviour, which was “extremely disturbing and upsetting”. However, in her attempt to address the complaints, she claims that Milburn refused to change her conduct and did not see any issue with how she treated her employees.

Marshall alleges that she developed health consequences due to the “poisoned” work environment and found it challenging to be in the office for her mental health, causing her to limit interactions with Milburn. She also worked long, unbillable hours because of Milburn’s refusal to adequately resource the law firm and hire a full-time law clerk.

Due to the firm’s lack of marketing engagement, Marshall alleges that she spent many unbillable hours engaging in marketing activities to build and develop her practice, including writing media articles and conducting appearances.

“The plaintiff also quickly learned that contrary to her representations of herself as a senior counsel in the employment law area, Ms. Milburn had very little trial experience and rarely litigated. Her law practice was primarily focused on sending letters,” the claim states.

When the firm’s junior associate resigned, Marshall alleges that Milburn refused to hire a recruiter because of costs, prompting her to recruit a junior lawyer which saved the firm $40,000 in recruitment fees. “Ms. Milburn promised to pay the plaintiff a financial incentive of $15,000 for recruiting this lawyer, and to date has failed to do so.”

In November 2021, Marshall provided her notice of resignation, which she alleges quickly turned into an abusive “20-minute tirade.” She claims that Milburn accused her of “stabbing her in the back, betraying her, ruining her business, and discarding her like dirt on her shoe.”

On Marshall’s final day of employment, she claims Milburn harassed her as she attempted to transfer files to her new law firm, expressing that she would not be allowed to leave the office with the files despite directions from clients.

She claims that Milburn screamed at her to leave the office as she tried to complete her final tasks. “As the plaintiff was attempting to depart the office, Ms. Milburn continued to shout at her, recorded her without her consent with a recording device, contrary to the Law Society Rules of Professional Conduct, and levelled further false accusations.”

Marshall also claims that Milburn refused to provide her bonus payment and pay her for six accrued and unused vacation days.

Milburn asserts that she acted professionally and reasonably and denied engaging in any improper, harassing or belittling conduct, including disparaging her former partner, office manager or other staff. She also denies that the firm owes Marshall a recruitment incentive.

She claims that Marshall suffered from significant mental health issues, including but not limited to panic attacks and anxiety disorders before her employment.

“The plaintiff’s anxiety disorder and other mental health issues causes the plaintiff to believe that she is being attacked or treated unfairly in situations where that is not the case,” the defence states.

Milburn claims that Marshall’s condition worsened due to her failure to attend regular counselling, seek appropriate medical care, follow the recommendations of her health care professionals, and update her medications.

On several occasions, Milburn claims Marshall advised colleagues that she enjoyed attempting to intimidate or humiliate older male counsel by accusing them of being condescending or “mansplaining” things to her.

In a conversation with the office manager, Milburn claims Marshall disclosed significant and longstanding issues with her mother and said Milburn’s presence reminded her of her mother and triggered her. 

Milburn claims that Marshall became more erratic and combative during her employment due to external tensions, including challenges caused by balancing her work and raising young children, pressures from the fractured relationship with her mother and the impact these stressors had on her mental health.

Milburn refuted claims that Marshall worked long billable hours, stating that she only docketed 1305.4 hours in 2021, even though her employment contract expected her to bill 1400 to 1600 hours yearly.

During Marshall’s resignation meeting, Milburn claims that she was aggressive and critical, accusing Milburn of failing to do her job by not hiring a recruiter to replace the junior associate who quit a few months earlier and not supporting her.

“At no time did the plaintiff raise any issues about the work environment at Milburn & Associates, nor did she state that she had been treated unfairly,” the statement of defence states.

Milburn admitted to carrying out minimal marketing initiatives stating that she has developed a strong reputation amongst executives and within the financial services industry; thus, referrals drive her business, and excessive marketing was unnecessary. She also claims that Marshall used all her vacation days.

Milburn claims that Marshall arrived at the office shortly after 1:00 pm on her last working day, notwithstanding that her files were unprepared for transfer to her new firm and that she was required to turn in her keys and leave the office before 4:30 pm. Milburn remained in her office to avoid contact with Marshall, but at 5:10 pm, she asked her to leave the premises.

She claims that Marshall complained that she was being treated “horribly” and would retain a lawyer and continued making more accusations and threats. As a result, Milburn began recording the situation to protect the firm, making Marshall irate.

The defence states that the situation escalated when Marshall left a grey fob on Milburn’s desk rather than the office key. When the manager requested that she hand over the office key, Marshall began shaking and could not remove the office key from her key ring.

“The plaintiff began complaining that she could not believe the way she was being treated and that she had never been treated like this before. The plaintiff started to hyperventilate and fell to the floor.”

The office manager called 911 while Marshall called her husband to pick her up. She instructed him to video-record the situation because “she was going to need it.” Shortly after Marshall’s husband’s arrival, the ambulance took her out of the office on a stretcher.

The reply to the statement of defence asserts that every allegation is knowingly and utterly false, intentionally designed to cause Marshall to withdraw her lawsuit and is a “textbook” case of precisely what an employer should not do.

“The statement of defence represents everything that the Courts condemn in an employer’s defence pleadings. Ms. Milburn, as an employment lawyer, is aware of this. This reinforces the Plaintiff’s claim for punitive damages. Ms. Milburn and Milburn & Associates’ defence pleading is filled with personal attacks, preying on alleged and historic health issues, and contains a spurious and baseless counterclaim.”

Howard Levitt, senior partner at Levitt Sheikh LLP is representing Marshall who is also a partner at the firm and David Greenwood, partner at Blaney McMurtry LLP is defending Milburn & Associates.