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How the Soulpepper case changed cultural institutions without going to trial

The Toronto Star with Karen Busby 02 August 2018

They may not have had their day in court, but the actresses who sued the Soulpepper Theatre Company and one of its co-founders over sexual harassment allegations succeeded in changing the company’s culture, legal experts say, showing the power of civil actions as a tool in the #MeToo movement.

An out-of-court settlement was reached in the lawsuits against Schultz and Soulpepper, all involved parties confirmed Wednesday.

While the terms of the settlement have been tightly guarded, lawyer Margaret Waddell, who was not involved in the case, said it’s clear that the plaintiffs walked away with at least one thing they wanted.

“Their objectives, as they stated, were to create a systemic change in the way that (Soulpepper) was operating to create a safe environment,” said Waddell, a partner at Toronto law firm Waddell Phillips.

“It looks like they’ve achieved that, and I think that that is really important.”

In January, four actresses filed separate lawsuits accusing former Soulpepper artistic director Albert Schultz of a pattern of sexual harassment at the Toronto non-profit theatre company.

At a press conference, Kristin Booth, Hannah Miller, Diana Bentley and Patricia Fagan said they decided to launch a civil suit in order to change what they alleged was a workplace culture that tolerated sexual harassment.

Schultz resigned and pledged to vehemently defend himself against the allegations. Both he and Soulpepper filed notices of intent to defend in the case.

In the days after the suits were filed, then-Heritage Minister Melanie Joly declared her department was reviewing its funding policies to ensure recipients commit to eliminating sexual misconduct and harassment.

Soulpepper has since taken steps towards cultivating a safer and more inclusive artistic environment, including providing crisis counsellors, setting up a whistleblower hotline and adopting a new code of conduct.

The months-long legal battle prompted self-reflection about the issue of sexual harassment in Canada’s artistic community, with cultural institutions and associations across the country launching anti-harassment initiatives.

And amid these sweeping changes, a court date never materialized.

Karen Busby, a law professor at University of Manitoba, wasn’t surprised by the Soulpepper outcome — she said 99 per cent of civil actions never go to a full trial.

There are often powerful incentives on either side of a civil suit to resolve a case outside of court, she said, including the burden of a lengthy judicial process, expensive legal fees, the potential for reputational damage and the risk of re-traumatizing victims on the stand.

The actresses collectively sought $3.6 million in damages from Schultz and $4.25 million from Soulpepper, but Busby said in settlements of similar cases, compensation tends to be in the thousands or tens of thousands.

Waddell said she imagines those figures will creep upwards as the #MeToo movement reshapes perceptions about the consequences of sexual misconduct.

“I think we’re recognizing now as a country and within our judicial institutions that those harms are real, and they are no less deserving of compensation.”

As Waddell proceeds with a class-action lawsuit against the Royal Winnipeg Ballet and a photographer who is alleged to have taken intimate photos of students, she said she thinks civil suits will be an instrument of change in the #MeToo movement, regardless of whether they go to trial.

“If the institutions now are starting to recognize the problem through these highly publicized pieces of litigation, that’s good for everybody,” she said.