Winnipeg lawyer Jay Prober says he wasn’t talking about KC Allan when he called women accusing his client Peter Nygard of sexually assaulting them liars and criminals.
Allan filed a professional misconduct complaint with the Law Society of Manitoba in October 2020 about comments Prober made to CBC News and the Winnipeg Free Press about her and other alleged rape victims suing Nygard. In June, CBC reported Prober claimed the allegations were fabricated in a bid to destroy Nygard’s reputation.
“They are more of the same by women jumping on the perceived money train who are likely to have been paid to make these fabricated accusations,” said Prober in June 12 email to CBC News in response to allegations of sexual assault, including Allan’s.
Months later on Jan. 8, 2021, an agreement was reached between Prober and Allan and that included a public apology in exchange for not pursuing a defamation suit against Prober.
“I am truly sorry that she felt that the comments I made were related to her, they were not, and for that I sincerely and publicly apologize,” said Prober in a written apology to Allan, that she shared with CBC News.
Allan says the apology amounts to a “dog ate my homework apology.”
“I wanted him to publicly stand up and act like a mensch and, you know, say he’d done wrong, that he had misspoken and that it was bad. And I didn’t get that,” said Allan in a phone interview with CBC News from her home in Savannah, Georgia.
Nygard, was arrested Dec. 14 in Winnipeg and is awaiting extradition to the U.S. for allegations of sex trafficking and racketeering conspiracy.
Fifty-seven women are part of a class action lawsuit in New York alleging they were sexually assaulted by the 79-year-old fashion designer, some dating as far back as 1977. The lawsuit is now on hold until the criminal investigation is complete.
On Feb.18, 2020, when 10 women had initially accused Nygard of assault, Prober, Nygard’s longtime lawyer, was quoted in the Winnipeg Free Press as saying: “a lot of people see dollar signs in their jumping on the bandwagon.”
By April 21, 46 women had joined the lawsuit against Nygard. At that time, Prober told the newspaper, “As I predicted before, more women are jumping on what they perceived to be the money train, the gravy train. They see this as a cash cow. I believe that explains the rather ludicrous number of additional plaintiffs.”
Two months later on June 11, an additional 11 women added their names to the lawsuit, including Allan, bringing the total to 57.
On June 14th, CBC’s The Fifth Estate published Prober’s comments which led to Allan’s complaint with the law society.
In the back-and-forth with the law society, Prober said his comments were about the class action as a whole and not about Allan specifically.
“How can Prober expect me, the media and the public to understand that when he says, ‘… the allegations from the women are fiction… more women are jumping on what they perceive to be the money train … They see this as a cash cow …’ he is referring to the class generally, not the women who comprise it?,” wrote Allan in a rebuttal to Prober’s response to the law society.
Allan is a former model who grew up in Winnipeg and now lives in the U.S.
She says in 1979, when she was 17 years old, Nygard raped her. They met at a nightclub and he offered her a ride home, but stopped at his Winnipeg warehouse on the way.
Allan says she decided to add her name to the class action lawsuit, in part because of the horrible things Prober was saying about the other women.
“The rape that I endured at his client’s hands was 41 years ago. I knew it could not be said of me that I was part of a conspiracy. I thought that I brought credibility to everybody else’s testimony,” said Allan.
She said when Prober continued to accuse the women of conspiracy and lies, she had enough. Allan hired Winnipeg lawyer Robert Tapper and threatened Prober with a defamation lawsuit.
“She had the right to have this issue dealt with”, said Tapper. “I reviewed the materials, and put Prober on notice.”
After months of back-and-forth, Allan says Prober finally agreed to issue a public apology, which his lawyer is supposed to send to CBC News and the Winnipeg Free Press on Monday.
Law Society should take action: Ottawa lawyer
Ottawa human rights lawyer Richard Warman questions whether the apology is in fact an apology
“Apart from the title of ‘Apology’, I see little to nothing from Jay Prober’s statement that takes responsibility and expresses remorse for repeatedly spreading historical stereotypes about women who complain of sexual assault,” he said
In June, Warman complained to the Manitoba Law Society about similar comments Prober made to the media about Nygard’s accusers. His complaint was dismissed because he had no personal connection to the case.
Warman appealed that decision and won.
“I believe the Manitoba Law Society should have taken action on its own when I first contacted them as a member of the legal profession to deal with Jay Prober’s unprofessional comments rather than dismissing my complaint out of hand, forcing a victim of sexual assault to again ask them to fulfil their legal mandate,” said Warman.
He said Prober’s apology is anything but.
“I don’t believe that does anything to address Jay Prober’s unprofessional conduct as a lawyer and I would hope that the Manitoba Law Society will hold him accountable for his actions,” he said.
Allan is also disappointed in the way the law society handled her case.
“They sat back and let Jay Prober and I exchange, like, notes in class. It felt like we were passing notes to one another. We could have just mailed the letters to ourselves for all the help, the Law Society has been thus far,” said Allan.
“I just feel retraumatized by him and ergo by Nygard.”
She said at the very least Prober should be written up for professional misconduct or put on notice.
“I wanted them to professionally censure him. I knew they wouldn’t disbar him, but I thought what I was going to get out of it was action,” said Allan.
CBC asked for comment on the perceived inadequacies of Prober’s apology.
“[Allan] accepted our apology which we agreed to make public and she gave us a full and final release from taking legal action,” said Prober’s lawyer Dave Hill.
Allan said she looks forward to a day when victims of sexual and gender-based violence are no longer seen as brave when calling out their attackers. She said that’s part of the reason why she wanted a public apology from Prober and is fighting for professional censure against his conduct.
“Jay Prober was not misunderstood in his intent nor its outcome. He intended and succeeded at systematically tarring all complainants with a tainted brush as part of a, ‘liar, liar, your pants are on fire’ defence of his client,” she said.
“If anything, Prober’s latest communication demonstrates his inability or unwillingness to be held accountable to a professional standard. It is entirely irrelevant to whom he directed his comments or why. They do not meet the test of standard industry practices.”