With contributions by Andres Barker and Erin Brandt (nee Kizell).
Thanks to widespread media coverage, it is the rare Canadian who hasn’t heard about the CBC’s recent decision to fire popular radio host and personality Jian Ghomeshi following unconfirmed allegations that he engaged in “unwanted sexual violence” with multiple women. It is that same rare Canadian who isn’t aware that Ghomeshi immediately launched a high profile lawsuit against CBC seeking $55 million in connection with his dismissal.
Since Ghomeshi is a member of a union, however, he is not able to claim against his employer for wrongful dismissal. This is because, as a unionized employee, his employment (and its termination) is governed by a “collective agreement”, entered into between the union and the CBC. As the Supreme Court of Canada explained in 1995, unionized employees cannot bring a court action concerning matters covered by a collective agreement – rather, lawsuits must be restricted to actions of the employer that fall outside of the collective agreement. Therefore, to sue the CBC for firing him, Ghomeshi had to get creative. So he did, claiming breach of confidence and defamation.
Given the unusual (and notorious) character of Ghomeshi’s lawsuit, we thought it would be interesting to examine the exact bases on which Ghomeshi is claiming millions in damages. We also offer some of our own observations regarding the possible merits to Ghomeshi’s legal arguments.
Breach of Confidence
In the Statement of Claim he filed with the Ontario Superior Court of Justice, Ghomeshi suggests that he disclosed to the CBC certain details about his personal life and the allegations against him so that both parties could work together to prevent publication of a false story about him. However, according to Ghomeshi, the broadcaster instead used the disclosed information to dismiss Ghomeshi, thereby committing an (alleged) “breach of confidence”.
Under the law, to establish that a breach of confidence in fact occurred, Ghomeshi must prove:
1. That the information about his personal life and the allegations against him was confidential;
2. That he communicated the information to the CBC in confidence;
3. That the CBC misused the information; and
4. That this misuse occurred to Ghomeshi’s detriment.
Thus, Ghomeshi’s claim appears to be that he trusted the CBC with sensitive and confidential information, and that the CBC “misused” this information for its own purposes (dismissal), which in turn caused Ghomeshi financial and other suffering.
Generally speaking, what an employee does in his free time, off the job, is his private business. If an employee’s off duty conduct causes harm to an aspect of the employer’s business, however, the employer may have grounds to discipline or fire the employee. Where the employer is a public broadcaster, public perception is a key business consideration, and potential harm to this as a result of immoral or illegal activity by an employee could very well constitute cause for dismissal.
Ghomeshi’s claim, therefore, raises a number of interesting legal questions: Can an employee effectively shield himself from discipline or termination by approaching his employer about off duty misconduct (alleged or proven) “in confidence” and with a common interest? In other words, if the misconduct would normally amount to cause for dismissal, is the employer required to ignore this information because it is disclosed confidentially? Can the employer subsequently act on the information if it comes to the employer’s attention through a different channel, such as the media? And, of course, is dismissal for cause really a “misuse” of confidential information, particularly if that confidential information is never disclosed by the employer?
An employer in a non-unionized work environment can already dismiss an employee for almost any reason, including a perception that her personality or activities make her an undesirable employee, so long as the employer provides proper notice or compensation and does not breach relevant (e.g. human rights) legislation. Could a claim like Ghomeshi’s theoretically create a loophole whereby an employee can avoid a without cause dismissal entirely by relying on her disclosure to the employer of confidential information?
Based on our experience, if it proceeds to court, we expect that Ghomeshi’s breach of confidence claim will fail. We are aware of no obligation on an employer to disabuse itself of negative information provided by an employee, even if that information is provided in confidence and with a common interest. Furthermore, we see no basis for claiming that the CBC “misused” Ghomeshi’s confidential information – just because they used it for a purpose other than Ghomeshi intended, that does not necessarily mean that the CBC’s purpose was improper.
Ghomeshi’s claim for defamation is similarly problematic.
On October 26, 2014, the CBC made the statement that information had come to their attention that, in their judgment, precluded them from continuing their relationship with Ghomeshi. CBC did not get into the specifics of that information, and made no suggestion that the information was of an illicit or illegal nature.
To succeed in an action for defamation, a plaintiff has to prove that a false statement was made that lowered his reputation in the minds of right-thinking members of society generally. In this case, the CBC statement was a general one which appears to be a true expression of the broadcaster’s own actions. And even if the statement might tend to lower Ghomeshi’s public reputation (e.g. by creating negative speculation about what led to the firing) it says nothing about Ghomeshi’s character or behaviour that could be characterized as “false”. As such, Ghomeshi’s defamation claim is tenuous at best.
Interestingly, it was the Toronto Star (and Ghomeshi himself), not the CBC, who publicized the details of the allegations and Ghomeshi’s sexual activities.
Ultimately, it may be that Ghomeshi has a legitimate claim for wrongful dismissal, i.e. a claim that he was dismissed without cause and without proper notice or compensation in lieu thereof. However, and as was mentioned above, given Ghomeshi’s status as a unionized employee, he is precluded from pursuing such a claim in court.
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