Jian Ghomeshi: Legal Shades of Grey

Oct 28, 2014

The Jian Ghomeshi story: The Basics

According to the Toronto Star “CBC star Jian Ghomeshi has been fired over “information” the public broadcaster recently received that it says “precludes” it from continuing to employ the 47-year-old host of the popular radio show.

Further, “Over the past few months the Star has approached Ghomeshi with allegations from three young women, all about 20 years his junior, who say he was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters. Ghomeshi, through his lawyer, has said he “does not engage in non-consensual role play or sex and any suggestion of the contrary is defamatory.”

This case has enough legal issues for a law school exam.

Jian Ghomeshi

Civil action against the CBC

According to the Star, Ghomeshi’s lawyers, Dentons LLP, will be filing a lawsuit claiming general and punitive damages for breach of confidence and bad faith.

An employee cannot commence a legal action in the courts if the issue is covered under a collective agreement. I therefore expect the CBC to bring a motion to strike some or all of Ghomeshi’s legal action.

Potential Defamation Action

It does not appear that the CBC has provided particulars with respect to the “information” it relied upon to terminate Ghomeshi’s employment.

Will the CBC report on this story? Will it provide the reporters who cover the story with all of the information it has collected? If not and the reporter writes something negative about Ghomeshi that someone at the CBC knows is untrue will Ghomeshi sue the CBC for defamation?

Grievance 

In a statement, Dentons LLP indicated that Ghomeshi will “commence a grievance for reinstatement under his collective agreement.” His union will represent him for free.

If the grievance proceeds to arbitration, the CBC must prove that it had “just cause” to terminate Ghomeshi’s employment. If not, Ghomeshi can ask for reinstatement with full back pay. In many – perhaps most – cases an arbitrator will reinstate an employee if the employer cannot prove just case but in this case I am not so sure. If no just cause is found and he is not reinstated then what are the chances he will ever work at a major TV network again? How would an arbitrator compensate him for the CBC’s breach of the collective agreement? How much compensation would be enough?

If the four women refuse to voluntarily testify on behalf of the CBC then will the CBC force them to testify? It is always dangerous to call a witness when you don’t know what the person will say.

Ghomeshi claims the four women consented to him being violent and having sex with him.

If the women testify, how will an arbitrator decide what constitutes consent in an alleged S&M situation. Will either party attempt to introduce “expert” evidence? If so, how does one qualify as an expert? If the employer can prove the women didn’t consent to sex or violence will Ghomeshi claim CBC condoned his actions if it knew about the allegations for months and permitted him to continue working. In this regard, what new “information” came to light between the beginning of his leave of absence on Friday and his termination on Sunday?

CBC

The CBC almost certainly has a no discrimination policy that contains a complaint procedure. According to the Star, “Only one of the alleged victims worked at the CBC. She never dated Ghomeshi. She alleges he approached her from behind and cupped her rear end in the studio, and that he quietly told her at a story meeting that he wanted to “hate f—” her….The woman said she complained about Ghomeshi’s behaviour to her union representative, who took the complaint to a producer. As the woman recalls, the producer asked her “what she could do to make this a less toxic workplace” for herself. No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.”

Will this woman file a complaint against the CBC under the Canadian Human Rights Act? Are there other women who claim they were sexually harassed or sexually assaulted by Ghomeshi while working at CBC after CBC became aware of the allegations against Ghomeshi.” If so, will they file complaints or legal actions against CBC?

The Three Women Who Claim Ghomeshi was Physically Violent without Their Consent

These women could commence an action in the courts and claim for damages for the tort of civil assault. Unless there is audio and video evidence this would be a classic he said/she said case.

According to the Star, “Ghomeshi’s lawyer, Neil Rabinovitch, wrote to the Star saying that he had reviewed “emails and text messages” between Ghomeshi and the women Rabinovitch believed were the Star’s sources. The lawyer said in a letter he believed this information would “discredit the individuals we believe to be your sources.” I do not think these texts and messages will carry much legal weight on the issue of whether the women consented to sex and/or violence.

Law enforcement

The identity of the four women has not been made public. The Star is unlikely to release the names without the women’s consent.  I cannot think of a reason why Ghomeshi would do so. If the police find out their names and contact them the women have no obligation to provide any information. So will the women step forward and provide information to the police?

If so, and the police file charges under the Criminal Code what happens to any civil proceedings such as an arbitration under the CBC’s collective agreement, a complaint filed by any current or  former CBC employee under the Canadian Human Rights Act, and any actions commenced by Ghomeshi and/or the four women in the courts? They will likely be stayed (or postponed) until the criminal charges are decided.

I suspect we have only seen the tip of the iceberg and the legal issues arising out of this termination will take years to resolve.

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]

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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