The Jian Ghomeshi saga

[Admiral Yi]

Is that her getting shtupped on the piano?

[PRC]

Is that her getting shtupped on the piano?

Yes.

[Malthus]

Well, he's not yet winning in the court of public opinion - even members of the so-called "kink community" are skeptical:

http://www.washingtonpost.com/news/morning-mix/wp/2014/10/28/ousted-cbc-radio-host-jian-ghomeshi-faces-skepticism-from-the-kink-community/

[crazy canuck]

Yeah, his PR firm might want to reconsider the strategy...

[Barrister]

Yeah, his PR firm might want to reconsider the strategy...

It's a little late for that.

[Josephus]

Hey Lawyers...can you dumb down Upjohn and Weber for us plebes?

[Barrister]

Hey Lawyers...can you dumb down Upjohn and Weber for us plebes?

Sorry - I'm just a poor unfrozen caveman prosecutor who doesn't understand those words either.

[crazy canuck]

Hey Lawyers...can you dumb down Upjohn and Weber for us plebes?

Yeah, sorry about that 

A little context is required to explain Upjohn (in Canada we dont call it that but we have something similar).

both in-house counsel employed by a corporation and external counsel retained by the corporation have as their client the corporation and not the employees, officers or directors of the corporation although of course lawyers have to interact with employees, officers and directors to gather information and give advice.  This can raise a number of tricky ethical issues.  But specific to this case, when counsel for a corporation is engaged in conducting an investigation for the corporation (or really anytime they are engaged in any situation where people might be mistaken as to whether the lawyer is protecting their interest) the lawyer must make it clear that they are representing the corporation and that they are not representing the employee in any manner.  Normally a warning that the employee should seek independant legal advice is also appropriate.


Weber is the name of the SCC case which held that unionized employees must rely on their union to arbitrate any disputes arising from their employment pursuant to the terms of their collective bargaining agreement and signficantly that they do not have an independant right to bring civil causes of action in the Court related to any disputes arising from their employment or the termination of that employment.

It strikes me that the alleged breach of trust claim falls squarely within Weber.  I am not sure about whether the alleged defamation is caught but based on the pleading that claim looks to be fairly weak in any event.

[CountDeMoney]

Hey Lawyers...can you dumb down Upjohn and Weber for us plebes?

Sorry - I'm just a poor unfrozen caveman prosecutor who doesn't understand those words either.

  No, at the end of October, I'm pretty sure you're frozen by now.   

[The Minsky Moment]

Potential significance of Upjohn concept here is it throws into question whether Mr. Q had a reasonable expectation that what he told the company would be kept in confidence.

This of course assumes that CBC actually revealed a confidence in the first place . . .

[crazy canuck]

Potential significance of Upjohn concept here is it throws into question whether Mr. Q had a reasonable expectation that what he told the company would be kept in confidence.

This of course assumes that CBC actually revealed a confidence in the first place . . .

It seems to me that Gomeshi is the one who revealed his sex life to the world in his facebook post which then caused the Star the publish its article.  I am not so sure the warning will be that important given that the pleading makes it clear that by that point Gomeshi alread had separate legal representation.  I think it is going to be pretty hard for him to argue that he thought the CBC was acting in his best interests when his own lawyers are sitting at the table.  The pleading recognizes this problem by characterizing it as a "common interest" but I dont think that gets him there.  Absent some kind of agreement that he could give the information without consequences, I am not sure he is going to be successful even if he can overcome the Weber exclusion of his Action.

[Josephus]

Thanks CC

[The Minsky Moment]

The pleading recognizes this problem by characterizing it as a "common interest" but I dont think that gets him there.  Absent some kind of agreement that he could give the information without consequences, I am not sure he is going to be successful even if he can overcome the Weber exclusion of his Action.

I'll bet Canadian dollars to donuts there is no written or even oral common interest agreement.

[crazy canuck]

The pleading recognizes this problem by characterizing it as a "common interest" but I dont think that gets him there.  Absent some kind of agreement that he could give the information without consequences, I am not sure he is going to be successful even if he can overcome the Weber exclusion of his Action.

I'll bet Canadian dollars to donuts there is no written or even oral common interest agreement.

[Jacob]

The pleading recognizes this problem by characterizing it as a "common interest" but I dont think that gets him there.  Absent some kind of agreement that he could give the information without consequences, I am not sure he is going to be successful even if he can overcome the Weber exclusion of his Action.

I'll bet Canadian dollars to donuts there is no written or even oral common interest agreement.

Most donuts cost more than CDN$ 1.00 these days, so taking the donut side may advisable in that setup.