Jian Ghomeshi: Legal Shades of Grey (Part III)

Nov 28, 2014

The Background

On October 27, 2014 the CBC terminated Mr. Ghomeshi’s employment. Later that day he disclosed some intensely private information about his sex life in a public Facebook post.

On October 28, 2014 I posted a blog outlining some of the issues that arose out of his termination.

Since that time Mr. Ghomeshi has filed and withdrawn a $ 55 000 000 law suit against the CBC.

Mr. Ghomeshi has also filed a grievance under his collective agreement challenging his termination. If his grievance proceeds to arbitration, he will almost certainly be seeking reinstatement with full back pay.

On November 4th, the CBC hired an outside investigator who will speak to any employee who wishes to file a complaint against Mr. Ghomeshi. I have also posted a blog which contains my thoughts on this investigator’s mandate.

The Latest Development: Criminal Charges

In the last month, a number of women contacted the police who conducted an investigation.

On November 26, 2014 Jian Ghomeshi was charged under the Criminal Code and was released on $ 100 000 bail. He will face four charges of sexual assault and one charge of overcome resistance – choking

What Happens Next

The Grievance. Mr. Ghomeshi’s grievance will almost certainly not proceed any further until the criminal proceedings are concluded.

Regardless of the outcome of the criminal proceedings, the union must decide whether or not to submit Mr. Ghomeshi’s grievance to arbitration. If the union genuinely believes that the CBC can prove just cause for termination then the union is under no obligation to take Mr. Ghomeshi’s case forward.  I would not be surprised if the union decides to drop Mr. Ghomeshi’s case if he is found guilty.

If the union takes Mr. Ghomeshi’s case to arbitration then an adjudicator must decide whether or not the CBC had just cause to discipline Mr. Ghomeshi and if so whether or not termination was the appropriate punishment. If he is found guilty, I believe most arbitrators would uphold the discharge in this case.

The Criminal Charges. The CBC will closely watch the criminal proceedings and will try to use any evidence that is submitted to support the discharge at any arbitration that subsequently takes place.

Potential Civil Case Against Mr. Ghomeshi. Any woman who was sexually assaulted by Mr. Ghomeshi has two years from the date of the assault to commence a civil action against him for the tort of sexual assault. To date, there are no reports that any woman has done so.

Potential Human Rights Case Against the CBC & Mr. Ghomeshi. Any woman who was sexually harassed or subject to a poisoned work environment has 12 months to file a complaint under the Canada Human Rights Act from the date the discriminatory act took place. To date, there are no reports that any woman has done so.

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

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.


  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.


Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."


The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."



The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”


Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.


For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.



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