Howard Levitt: This might not be the end of Julie Payette’s sorry saga — we can expect lawsuits from employees

Julie Payette is unemployable.

The former governor-general’s resignation this week was prompted, of course, by a scathing review of the work environment she presided over at Rideau Hall, which was characterized by dozens of people as hostile and toxic. The government released some of the findings of the independent review on Wednesday.

The public reaction to Payette’s calumny will ensure that anywhere she applies will not even have to Google her name to decide not to consider her further. That’s something that everyone who goes to court when fired with allegations of cause should appreciate.

How will your case read in newspapers and what impact will that have on your future? You should consider that impact, not only on future employers, but on your spouse, children, friends (or quickly former ones) and anyone who is introduced to you in the future and decides to “look you up.”

Well, some might say, it might be worth it for the $350,000 a year she will receive between her annuity and benefits. But will she get that money? The Governor General’s Act says that she is entitled to it, regardless of the circumstances of her departure.

But if I were Erin O’Toole, leader of the Official Opposition of Canada, the Conservative Party, I would quickly bring a motion in Parliament to amend the Act either to not make it automatic, to eliminate this patronage plum entirely or, most likely, to eliminate it for her. The other opposition parties would quickly jump on board.

And that would leave her greatest defender, Prime Minister Justin Trudeau, having to either go along or more likely, defend this unjustifiable payment to Payette — a payment caused by his own negligence in hiring her without a scintilla, apparently, of a reference check. Why, the opposition parties might ask, should Trudeau’ s negligence cost the taxpayers millions of dollars? So the crisis for Trudeau could live on while he fights to give the disgraced Payette millions of dollars. And if Parliament revoked her pension, she would have no feasible defence.

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Any check of her record would have revealed a pattern of similar misconduct in earlier jobs as well as a criminal charge of second-degree assault in Maryland, which she denied and has since been expunged. She was also involved in a fatal hit-and-run, although charges were not laid by the police. But should someone charged criminally or who drove a car which killed a pedestrian be awarded a post requiring such probity? Why would someone being recruited to the second highest office in the land not receive even the basic reference check conducted for your average manager In the private sector?

The other issue in this situation is the plight of her employees. The investigation report was heavily redacted and her side of the story, does not appear to have been reported, although she must have been spoken to.

At the very least, she would have had the opportunity to explain her version to the investigator. If the employees’ treatment was as vicious as the report portrays, they have a strong case for legal actions against the government and potentially against Payette herself. The action against the government, from the employees who resigned, would be for constructive dismissal and, potentially for all of them, for negligence insofar as the employer knew about Payette’s conduct for a protracted period and took no action. Of course, those employees would have to prove damages.

The other possible lawsuit is for intentional infliction of mental stress. To fit within that lawsuit, the conduct need not have been deliberately intended to cause harm. All that has to be established is that harm was its logical consequence and Payette was effectively willfully blind to the impact of her behaviour. All of this assumes, of course, that the allegations spelled out in the report are true. But they are so heavily redacted that they provide few details. Although, at first blush, the near unanimity and large numbers creates a compelling narrative.

So this sorry story may not yet be complete. Will its next act be a flurry of lawsuits?

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.