The Jian Ghomeshi saga

[The Minsky Moment]

Bottom line - it makes me glad to see all this, as it shows that Canadians can match Americans in their gusto and flair in bringing dubious legal claims.

[garbon]

CBC also has a radio host named Sook Yin-Lee.  In 2006 she did an arthouse film called Shortbus with full-on sex scenes and the CBC fired her over it. 

There was a letter writing campaign to bring her back and she did come back and now hosts a popular radio show "DNTO (Definitely Not the Opera)". 

They fired her? The summary I read elsewhere explicitly claimed that they kept her on, but I guess that was wrong?

He is misremembering what occurred.  They actually ended up giving her leave to shoot the movie


http://www.canada.com/ottawacitizen/news/arts/story.html?id=9b153b3a-46b2-424f-aea1-ab780e7cfd4d

That writer/director's more famous work is currently showing on Broadway.

[katmai]

hedwig or something else?

[Jacob]

This situation is bringing all kinds of revelations forth. A friend of mine posted this on FB:

WIth all the talk of Jian Ghomeshi in the news these days, I thought it was time that I come forward with my own shocking news about him. It was in 2010 at some afterparty for some event connected to the Olympics and I was rather intoxicated. I saw Jian at the snack table chatting with some ladies. He picked up a pita chip, and dipped it into what I believe was an artichoke dip (not positive on that). He took a bite out of the chip. . . . . And then, he dipped that same chip back into the dip. I kid you not, Jian Ghomeshi is a DOUBLE DIPPER.

[Ed Anger]

OMG

[garbon]

hedwig or something else?

Yeah that. It was really fun on stage.

[CountDeMoney]

OMG

It's like putting your whole face in the bowl.

[crazy canuck]

Bottom line - it makes me glad to see all this, as it shows that Canadians can match Americans in their gusto and flair in bringing dubious legal claims.

[Ed Anger]

OMG

It's like putting your whole face in the bowl.

Been there, done that.

[Malthus]

For the Advocate's Cabal (and other interested people), here's an analysis circulated by a top litigation partner at my firm, purely out of interest, as to the CBC's likely response. See how it tracks our comments to date concerning his case:

For a lot of listeners of CBC Radio, the past few days have been surprising and possibly disappointing.  My purpose in sending this e-mail is only to raise and think about some of the legal issues that may interest civil litigation lawyers.  I do not intend to talk about the factual aspects of the story.

What caught my attention in particular was the announcement on Monday that Jian Ghomeshi's lawyers (Dentons Canada LLP) (i) were about to issue a statement of claim in the regular courts against the CBC as defendant, and (ii) intended to file a grievance under the applicable collective agreement ("CA") against the CBC in respect to their client's dismissal.

So on your show today: some thoughts on the legal aspects of this situation.

The dual attack: (i) lawsuit in the regular courts, and (ii) grievance under the collective agreement:

Employment lawyers know that the regular courts have no jurisdiction over, and will not entertain, a lawsuit for wrongful dismissal brought by an employee who is within a bargaining unit that is subject to a CA under applicable labour legislation.  This is because labour relations statutes contain strong privative clauses that prevent such lawsuits, and instead provide the remedy of arbitration under the CA instead.  The leading case in this regard is still Weber v. Ontario Hydro (1995, SCC) (http://www.canlii.org/en/ca/scc/doc/1995/1995canlii108/1995canlii108.html).

Jian Ghomeshi is a member of the Canadian Media Guild, which has a CA with the CBC, the current version of which runs from 2014 through 2019.  You can see the CA here: http://www.cmg.ca/en/wp-content/uploads/2014/09/CMGCBCCollectiveAgreement20142019.pdf.  As a result, his exclusive remedy for his dismissal by the CBC is arbitration of a grievance under the CA; he cannot have his dismissal adjudicated in a wrongful dismissal lawsuit in the regular courts.  Any wrongful dismissal lawsuit that he might bring in the regular courts would be dismissed by preliminary motion under rule 21.01(3)(a).

This is why the action in Ontario Superior Court that Dentons has framed on his behalf does discuss his dismissal from the CBC, but frames the alleged legal wrong not as the dismissal itself, but rather on what they will argue are the unrelated common law wrongs of (i) breach of confidence, (ii) breach of common interest privilege, and (iii) defamation.  I have uploaded a copy of the statement of claim as TOR_LAW doc. # 8553097, if you are interested in reading it.

Grievance arbitration under the collective agreement:

Employees in a bargaining unit are not parties to the CA with the employer; rather, their union signs the CA as their exclusive bargaining agent.  An employee may therefore not personally file a grievance under the CA; the union has the sole right to do so.  The union has broad discretion whether or not to file such a grievance on the employee's behalf.  If the union refuses to do so, the employee's remedy is an unfair representation application against the union to the applicable labour relations board.  Because the CBC is a federal undertaking under the Constitution, I assume that the Canada Industrial Relations Board (CIRB) would have jurisdiction.

If the Guild were to agree to grieve Ghomeshi's dismissal, and were to win, the CIRB has the jurisdiction to award the remedy of reinstatement (which Ghomeshi is seeking), as well as damages.  By contrast, the regular courts will not grant the remedy of reinstatement (which is really equivalent to the equitable remedy of specific performance) to a successful plaintiff in a wrongful dismissal lawsuit.  This is often considered to be one of the benefits to employees of a unionized workplace.

The CBC's likely response:

I will give up my ticket to practise law if the CBC's lawyers do not bring a Rule 21 motion to strike out and dismiss Ghomeshi's statement of claim.  I think that the claim is vulnerable on several fronts:

•   Breach of confidence - I expect that the CBC will argue this:  Ghomeshi pleads that the alleged breach of confidence led to his dismissal, and that is what has caused him damage.  The breach of confidence is so closely tied to his employment and his dismissal that this entire part of the claim properly falls under the CA and must be arbitrated, in accordance with a long and consistent line of jurisprudence.

Further, Ghomeshi does not plead any express term of confidence on which he voluntarily disclosed facts concerning his personal life to the CBC.  At most he is making the argument that there was an implied term of confidence (i.e. that the information that he was providing would not be used for any purpose other than the joint purpose with his employer of fending off any adverse publicity and denying the allegations that were being made against him).  In the circumstances of the case, as pleaded in the claim, no such term of confidence can be implied.  It would be unfair to impose an implied term of confidence in respect of information that could be very damaging to the reputation of the employer if the employer were forced to ignore the information and not use it to dismiss an employee where such dismissal might well be warranted based on the facts of the case.

This would be a matter for trial, but I also expect that the CBC will ultimately argue that even if there was a breach of confidence, Ghomeshi didn't suffer any damage because of it.  He would have suffered the damage anyway, the argument would go, because of the detailed information that the Toronto Star revealed on Sunday evening as a result of its months-long investigation into Ghomeshi.

•   Defamation:  Our expert defamation lawyers Julian Porter and Rick Dearden may well shudder at my mangling of the legal principles, but here goes:  The question whether a published utterance is capable of being construed as defamatory has always been considered to be a question of law rather than fact, which can be adjudicated on a preliminary motion under Rule 21.  See, for example, the Ontario Court of Appeal decision in Elliott v. CBC (http://www.canlii.org/en/on/onca/doc/1995/1995canlii244/1995canlii244.html).  (the separate question whether a statement actually IS defamatory is a question for the jury at a trial; in that regard, before 1985 in Ontario all defamation actions had to be tried by a jury; that is not the case any more)  The argument may well be that the short public statement that the CBC made on Sunday cannot be considered defamatory, either in its plain and ordinary meaning or by innuendo.

The CBC may also raise the defence of qualified privilege, in that it had the right and as a public broadcaster arguably the obligation (i) to dismiss Ghomeshi in the circumstances, and (ii) to explain to the public in as neutral terms as possible its reason for doing so.  That is probably a defence for trial, however, rather than an argument to strike out the claim under Rule 21.

Justification: It will be fascinating to see whether in its defence the CBC pleads what in defamation law is called "justification" (what the rest of us call "truth").  The truth of a statement does not make it non-defamatory; truth simply provides a defence to an action for damages based on a defamatory statement.  The theory is that a person is entitled only to that reputation that s/he deserves.  Pleading justification is risky; if the defendant pleads justification and loses, that is considered to aggravate the damages (i.e. it's a repetition of the defamation).

•   Common interest privilege:  I must say that the statement of claim makes admirably inventive use of this concept, but I'm really sceptical.  While the case law is a little mixed, the prevailing (and correct, I think) view is that "common interest" is not a free-standing privilege in and of itself.  Rather, it is a principle or doctrine having to do with waiver of some other privilege (usually litigation privilege, but sometimes lawyer-client privilege).  That is, the disclosure of a privileged piece of information by one person to another will not constitute a waiver of the privilege where the two persons have a "common interest" in the information and using it for a common purpose.  The principle developed originally in the context of the sharing of privileged information and communications between co-defendants in a lawsuit, in which they have a common interest in defeating the plaintiff's claim.  The concept now has been expanded to business relationships and transactions as well.

There are at least two reasons why I am sceptical that this legal principle will assist Ghomeshi:

(i)   As is say above, common interest is not a free-standing privilege.  Rather, it operates as an exception to the principle that voluntary disclosure of privileged information constitutes a waiver of the privilege.  That is why I far prefer to refer to this as the "common interest doctrine" rather than the misleading term "common interest privilege".

(ii)   Presenting a favourable public image goes quite far beyond the type of common purpose that the courts have to this point recognized as being subject to the common interest doctrine.  But who know?  The so-called "neighbour" principle that emerged from the famous 1931 Donoghue v. Stevenson case resulted not from a trial decision, but rather a motion to strike out the claim on the basis that it disclosed no reasonable cause of action – the English equivalent at the time of our Rule 21.

That's full time for today.  Happy Hallowe'en, everyone.

[crazy canuck]

Ok, confess Malthus, you gave him a link to this thread didnt you 

[Malthus]

Ok, confess Malthus, you gave him a link to this thread didnt you 

I might as well have.

Anyway, it is interesting to see how our Langush Cabal stacks up against fairly top legal talent - pretty well, as it happens.

[Josephus]

Next time I have legal issues I'll just post them here and let the cabal give me (free) advice.

[The Brain]

Ok, confess Malthus, you gave him a link to this thread didnt you 

I might as well have.

Anyway, it is interesting to see how our Langush Cabal stacks up against fairly top legal talent - pretty well, as it happens.

This is sad on so many levels.

[Barrister]

Next time I have legal issues I'll just post them here and let the cabal give me (free) advice.

Plead guilty.