The terms of reference assigned to a lawyer appointed by the CBC to lead an investigation in the wake of the Jian Ghomeshi affair raises interesting legal questions, says Toronto employment lawyer Doug MacLeod.
The terms of reference outline a series of guidelines for lawyer Janice Rubin to follow as she conducts her investigation, Sun News reports, noting some feel the terms don’t go far enough.
Rubin’s appointment arose from the dismissal of Ghomeshi as a CBC Radio host over allegations of sexual abuse. Ghomeshi says the allegations are untrue.
“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?” says MacLeod.
“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.”
Rubin has been tasked with making findings only with respect to specific complaints, which may be limiting, says MacLeod.
“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 the CBC to significant legal liability?”
MacLeod also questioned whether the information Rubin, a lawyer and a mediator, collects will be protected by solicitor/client privilege.
“For example, she is required to provide the CBC with a summary of any complaints ‘maintaining confidentiality to the extent possible,’” says MacLeod. “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.”
MacLeod notes, “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, adds MacLeod, “to see what facts she takes into account when assessing the credibility of any complainant who comes forward.”