Amber Heard’s counterclaim may backfire

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

Heard’s counterclaim alleges that since she sought a domestic violence restraining order against Depp in May 2016, he has engaged in “an ongoing harassment and online smear campaign” to effectively end her career.

As the Johnny Depp trial takes a short break, the legal issues continue to unfurl.


Of little focus has been Ms. Heard’s $100 million counterclaim against Johnny Depp that is also being tried in this case.


This means that Heard, in response to Depp’s $50 million claim, defended the allegations, and also sued him for damages including defamation.


Heard’s counterclaim alleges that since she sought a domestic violence restraining order against Depp in May 2016, he has engaged in “an ongoing harassment and online smear campaign” to effectively end her career.


Heard alleges that Depp initiated or coordinated two petitions, “one to remove Ms. Heard as an actress in the Aquaman movie franchise, and one to remove her as a spokeswoman for L’Oreal.” To support her claim for defamation damages, Heard claims she suffered “damages to her reputation, harm to her ability to work in her profession and as a spokesperson.”


Her claims are based in her reputation being so damaged that her employment prospects are very bleak.


Like Depp, in her lengthy counterclaim Heard relies on private and public statements Depp allegedly made about her.


The timing of Heard’s counterclaim is curious. Depp filed his suit in March 2019. Heard filed a motion to dismiss his suit in April 2019 but was unsuccessful. In August 2020, Heard filed a $100 million countersuit in response to the 2019 filing.


A defendant moving to strike a claim right after it has been filed is rare and aggressive. The Justice system was created to allow plaintiffs a platform to fairly resolve their disputes and have their day in court.


Typically claims are only dismissed before trial if they are frivolous, vexatious or effectively abandoned by the plaintiff.


When Heard was unsuccessful getting Depp’s claim thrown out she filed a counterclaim a year later for double the amount Depp was suing her for.


Counterclaims can be considered a tool to intimidate a plaintiff from proceeding with a claim in court. For example in the Court of Appeal case Ruston v. Keddco MFG, the court upheld a $100,000 punitive damage award and $25,000 aggravated damage award to the plaintiff finding the employer’s counterclaim was a “tactic to intimidate” the plaintiff.


In that case the plaintiff, Mr. Ruston, in the role of president reporting to the CEO, was fired for cause. The company alleged he engaged in fraud, however, he was given no details of the purported cause in his termination.


When Mr. Ruston sued for wrongful dismissal damages, the employer counterclaimed with a $1.7 million dollar claim alleging fraud. The court found no basis for the termination for cause and made no finding Mr. Ruston engaged in misconduct amounting to cause. Ruston was awarded $1.1 million dollars, including a hefty cost award of $546,684.73. The appeal was dismissed.


When defendants engage in aggressive litigation tactics, a reckoning may come once they enter the courtroom. As we saw in the case of Ruston, counterclaims can backfire.


If Heard does not substantiate her claims for loss of income and defamation during the course of her trial, her case could suffer a similar fate.


On to this week’s questions:


Q. I am trained, and was hired as, a social assistance worker. This involves psycho-social counselling, running groups and coaching. I work in a group home for at-risk youth. Because we are short staffed, I am being asked to perform physical personal care tasks, for example, I was supposed to insert a catheter for a client, which is really something a PSW or Nurse should do. My contract says nothing about personal care tasks like this. What can I do?


A. Firstly, if you are not professionally trained to take on some of the tasks you are being asked to do, then you must alert your employer of this immediately. If you are taking on more hours, responsibility and tasks that are out of your depth write to your employer expressing your discomfort. Ultimately, being asked to do work outside of the normal course of your role could be considered a breach of your employment agreement. If your employer continues to require you to take on tasks outside of the scope of your agreement, get legal advice.


Q. I need to leave my job after 20 years as a sales manager for a sports promoter. I have to look after my aging parents and can only work from home now in a reduced hours position. How should I go about this? How much notice should I give? Would I still be entitled to separation pay?


A. Let your employer know your limitations and see if it can accommodate the changes you seek. If not, give as much notice as you can. Suggest a notice period (like four weeks) but be flexible to extend that period if your employer needs some more transition time. If you are the one quitting because of changes to your own circumstances (and by no fault of the employer), you are not entitled to separation pay.


Have a workplace issue? Maybe I can help! Email me at and your question may be featured in a future column.


The content of this article is general information only and is not legal advice.

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