Janice Rubin, a lawyer and a workplace investigator has been retained by the CBC in the wake of the Jian Ghomeshi affair.

Her mandate (or terms of reference) are reproduced in a recent article by Brian Lilly.

Ms. Rubin’s mandate raises a number of interesting legal questions:

1. Ms. Rubin can only talk to people who decide to come forward. Given the under reporting of sexual harassment in the workplace, why wasn’t she asked to initiate conversations with employees who worked on Mr. Ghomeshi’s shows? News reports suggest that interns from The University of Western Ontario and Carleton University had concerns about the way they were treated while working on Mr. Ghomeshi’s show. Under the terms of her mandate, Ms. Rubin cannot contact these universities or interns.

2. If someone comes forward with a complaint then the person can lodge an informal complaint or a formal complaint. For formal complaints, Ms. Rubin must follow CBC’s complaint process. I suspect there is no provision in CBC’s policy which allows an employee to come forward and say: ” I was not sexually harassed personally but I was subject to a poisoned work environment.” Ms. Rubin can only make findings with respect to each specific complaint. In the circumstances it is difficult to understand why Ms. Rubin has not been specifically asked to find out whether Mr. Ghomeshi created a poisoned work environment. Could it be because this finding could expose CBC to significant legal liability?

3. Is the CBC using Ms. Rubin’s investigation to obtain evidence against Mr. Ghomeshi? If so, will the CBC try to rely on this new information to justify his termination at Mr. Ghomeshi’s arbitration?

4. Ms. Rubin is a lawyer and an investigator. Is she being retained as a lawyer or an investigator? If she is being retained as a lawyer then is the information she gathers and discusses with the CBC protected by solicitor/client privilege? For example, she is required to provide CBC with a summary of any complaints “maintaining confidentiality to the extent possible.”  I suspect Mr. Ghomeshi will want the CBC to disclose all documents that Ms. Rubin creates during her investigation at his arbitration hearing.  Accordingly, in these circumstances I doubt Ms. Rubin will prepare witness statements which would provide Mr. Ghomeshi with a preview of CBC’s evidence at the arbitration hearing.

5. Ms. Rubin has been asked to make findings “to the extent you are able to make them with respect to each specific complaint”. It is extremely unlikely Mr. Ghomeshi will talk to Ms. Rubin. So Ms. Rubin will not be faced with a he said/she said situation. She will only be able to assess the credibility of the complainant. It will be interesting to see what facts she takes into account when assessing the credibility of any complainant who comes forward.

For more legal commentary on this story, see The Jian Ghomeshi story: The Basics.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has restricted his law practice to employment law. He represents employers and employees. If you have any questions, you can contact him at 416 317-9894 or at [email protected]