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Civil route gives complainants more control: Fisher

Canadian Press THE CANADIAN PRESS

TORONTO — Four actresses who allege they were sexually assaulted and harassed by Soulpepper Theatre founding artistic director Albert Schultz say they were motivated to come forward because of what they described as hypocrisy and unsafe working conditions at the renowned company.

The women spoke out at a news conference on Thursday, a day after revealing they had filed lawsuits against Schultz and Soulpepper, alleging the prominent theatre figure exposed himself, groped them, and otherwise sexually humiliated them over several years.

The allegations have not been proven in court. Schultz says he plans to defend himself against the claims and Soulpepper's board of directors says it has instructed him to step down as it conducts an investigation.

In an interview with AdvocateDaily.com, Toronto employment mediator and arbitrator Barry B. Fisher says what differentiates this type of lawsuit from previous court actions is the complainants have chosen a civil route over a criminal proceeding.

“There are good reasons why alleged victims of harassment might opt for a civil trial,” says Fisher, principal of Barry Fisher Arbitration & Mediation.

“Once you’ve laid a criminal charge, you have no control over the process; it becomes the Crown’s issue. You can’t ever use a criminal charge as a way of getting money. That’s called extortion," he says. "Once you’ve laid a charge, you can’t seek to withdraw it because you’ve come into a financial settlement.”

Fisher says the standard of proof is also much higher in a criminal case. 

“You can be found not guilty of a criminal offence, but still be liable civilly,” he says. “Also, in a civil case, the defendant has no protection against self-incrimination; he or she would have to testify in a discovery to give their side of the story.”

From a mediator’s perspective, Fisher says civil cases give victims an opportunity to participate in the negotiation — as opposed to sitting on the sidelines of a criminal proceeding.

He says sexual harassment cases are often settled before the public ever hears about them because the person pays “to get rid of the threat of publication."

“In this case, the lawyer has taken a different approach: to get it out there right away," Fisher says. "They’re not using it as a device to silence the alleged victims. They’re saying ‘we feel we’ve been wronged and we want this dealt with.’”

Plaintiff Hannah Miller says working conditions at Soulpepper are not safe for actors whose jobs lead them to be open and vulnerable.

Actress Kristin Booth says she felt the need to come forward after seeing public statements from Soulpepper touting anti-harassment policies that she says she never saw in action during her time with the company.

Booth and Miller are joined in their allegations by Diana Bentley and Patricia Fagan, all of whom agreed to be named publicly.

Four Soulpepper artists, Ted Dykstra, Stuart Hughes, Michelle Monteith and Rick Roberts, have resigned from the theatre company as a symbol of support for the women and say they will not rejoin unless Schultz, 54, has no role there.

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