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| Brandon Pasternak |
TO: File, Partner
FROM: Associate
RE: New High-Profile Client — Legal Exposure
OVERVIEW
You have asked me to assess the legal exposure of a new high-profile client. For obvious reasons, he has asked to keep his name confidential and that we refer to him as “The Man with the Bag” (hereinafter, the “Bag Man”). I am flattered that you think I have nothing better to do on Christmas Eve than churn out legal memoranda.
By way of background, the Bag Man received a demand letter yesterday from a group of evidently disgruntled individuals (the “Naughty Listers”).1 They are represented by T. Grinch, who I’m told is a mean one. The Bag Man wants to know if their threats are “emptier than a glass of milk after Santa Claus comes to town” or whether he needs to ask for a PR specialist for Christmas.
[1] Per the Bag Man’s request, I have uploaded his “naughty list” to Relativity and am having a junior cross-reference it against the names of the individuals in the demand letter.
The remainder of this memo considers the Naughty Listers’ allegations and what, if any, the Bag Man’s legal exposure might be. Not to put the sleigh before the reindeer, but my outlook is more bleak than the bleak midwinter.
ANALYSIS
1. Workplace Harassment: All of the other reindeer used to laugh and call him names …
The Naughty Listers claim that the Bag Man and his business have run afoul of Ontario’s workplace harassment laws, pointing to the inappropriate treatment of a certain reindeer they call “Rudy.” According to the demand letter, the Bag Man’s corporate headquarters are located in the North Pole, but the incident in question took place at a satellite office in remote Northern Ontario.
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Section 5(2) of Ontario’s Human Rights Code, R.S.O. 1990, c. H.19 provides that every person who is an employee has a right to freedom from harassment in the workplace by the employer or by another employee because of colour. Harassment includes any “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Unfortunately for the Bag Man, it sounds like Rudy’s fellow employees engaged in conduct directed at Rudy — laughing, name-calling, exclusion from team-building exercises — which they ought to have known would be “unwelcome,” all because of the colour of his nose.
The Naughty Listers go on to acknowledge that Rudy’s situation improved slightly after receiving a big promotion one year on Christmas Eve. Even so, Rudy’s colleagues told him that he would “go down in history” not as the reindeer who saved Christmas, but as the “red-nosed” reindeer.
What evidence do they have of this alleged harassment? They point to a well-known holiday jingle. I plan to spend my Boxing Day researching the hearsay issues this raises and considering whether a court would take judicial notice of a jingle and will report back. For good measure, I have cancelled my New Year’s Eve and Day plans.
2. Animal Cruelty: Run, run [Rudy] …
The demand letter goes on to claim that the Bag Man’s four-legged employees have been getting the short end of the carrot. They claim to be underpaid, underappreciated and overworked. Rudy alleges that during his time in the Bag Man’s employ, the Bag Man forced him to travel to every house on Earth in a single night. Apparently, Rudy’s pain and suffering was so notorious that a song was written about it: Run [Rudy] Run.
According to the Naughty Listers, the Bag Man set unreasonably high expectations for Rudy that were, allegedly, unsafe. The Bag Man would not let Rudy stop running until he was “whizzin’ like a Saber jet.” Allegedly, the Bag Man also used the threat of demotion to force Rudy to work harder. During training sessions, the Bag Man would yell, “Run, run [Rudy], Randolph ain’t too far behind.” Randolph was the second-fastest member of Rudy’s team and, apparently, considered by some to be Rudy’s future replacement.
On the Big Night itself, the Bag Man would “make [Rudy] hurry” and yell at him: “Run, run [Rudy]. [The Bag Man’s] gotta make it to town [….]” This is concerning (and I don’t mean our client’s referring to himself in the third person) because s. 445.1(1)(a) of the Criminal Code prohibits willfully causing unnecessary pain, suffering or injury to an animal. Given the potential for criminal liability, it would behoove us to proceed carefully in how we respond to these allegations.
3. Intrusion Upon Seclusion: He sees you when you’re sleepin’ …
The Bag Man’s treatment of his employees is not the Naughty Listers’ only gripe. They say that everyone, and they mean everyone, has fallen victim to the Bag Man. For someone as secretive and aloof as the Bag Man (who, after all, only goes out in public one day each year) his disrespect for the privacy of others is allegedly astonishing. They say that the Bag Man has claimed on numerous occasions that he sees people when they are sleeping, that he knows when they are awake and that he knows who has been “bad” or “good.”
This is legally problematic. Ontario law recognizes the tort of invasion of privacy, which applies where: (1) the defendant’s conduct is intentional; (2) the defendant invaded — without lawful justification — the plaintiff’s private affairs or concerns; and (3) a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish. (Ludmer v. Ludmer, 2014 ONCA 827, at para. 47.)
While it is not clear what technology the Bag Man uses to watch the fine people of Ontario while they sleep and otherwise, it seems evident that this constitutes an invasion of privacy. There is no disputing that the conduct, if proven, was intentional. One does not come by this kind of intel by accident.
Moreover, for those of us who have been “bad” this year, I expect that it would cause great distress to know that the Bag Man (i) is intimately familiar with their wrongdoings, (ii) is placing them on his “list,” and (iii) is planning to leave a rock-hard lump in their socks on Christmas Eve.
Does this invasion of privacy have a lawful justification? We will need to interview the client to get his side of the story. Thankfully, his “busy season” is short, and I will follow up with him in the new year to get a jump start on my billable hour targets.
4. A Practical Conclusion: You better watch out …
Based on my above assessment, things aren’t looking good for the Bag Man. And that doesn’t even account for the other concerns on the Naughty Listers’ list that I didn’t have time to review, for it’s getting late and visions of sugar plums are starting to dance in my head. Apparently the Competition Bureau is considering an abuse of dominance inquiry into the Bag Man’s alleged anti-competitive practices in the Christmas market. They also claim that he, “without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property,” contrary to s. 177 of the Criminal Code.
I really don’t look forward to having to tell the Bag Man: “Yule probably lose.” Instead, I recommend that we encourage him to bring a lawsuit of his own to turn the tables. Every year, the Christmas season is rife with defamatory comments directed at the Bag Man. People claim that “Grandma Got Run Over by [the Bag Man’s] Reindeer,” parents tell their children that he has a “little round belly” that shakes when he laughs “like a bowl full of jelly,” and fathers everywhere allege that they “saw mommy kissing [the Bag Man].” Surely these words tend to lower his reputation.
Please let me know if you have any questions about my analysis. And if you happen to be speaking with the Bag Man tonight, please remind him that there is one associate in particular who would appreciate receiving a sizeable end-of-year bonus in his dress socks.
Brandon Pasternak is a civil litigation associate at Henein Hutchison Robitaille LLP, where he has a diverse practice including public and administrative law, regulatory investigations, property disputes, and commercial litigation. Pasternak is a lover of all things Christmas.
The opinions expressed are those of the author and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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