The controversial firing of former CBC radio host and personality Jian Ghomeshi has captured the public's attention in recent days for many reasons, most of which have nothing to do with the law. In terms of the legal issues arising from the termination of Mr. Ghomeshi's employment, these will largely be decided in a grievance arbitration between Mr. Ghomeshi's union and the CBC, in which he will be seeking reinstatement. The most interesting legal issues, however, concern the $55-million civil lawsuit filed by Mr. Ghomeshi's lawyers on Monday, which is likely to face some significant challenges.
The civil suit contains three claims: a $25-million claim for breach of confidence arising from an alleged common interest privilege; a $25-million claim for defamation; and a claim for $5 million in punitive damages. The defamation claim occupies only a few paragraphs in the Statement of Claim. In it, Mr. Ghomeshi claims that the CBC's public statement when it terminated his employment (that "information" had recently come to its attention that "precluded" the CBC from continuing its relationship with Mr. Ghomeshi) created innuendo that damaged his reputation.
In order for the defamation claim to proceed, it will first have to overcome the decision of the Supreme Court of Canada in Weber v Ontario Hydro. In that case, the court held that if the "essential character" of a dispute comes within the ambit of a unionized employee's collective agreement rights, the employee's sole remedy is a grievance arbitration under the collective agreement. No separate civil action may be brought by the employee against the employer. In subsequent cases, the courts have relaxed this rule somewhat to permit some defamation claims by employees against their employer where the court is persuaded that the statement complained about went beyond what was required for the employer to manage the employment relationship. So, there is some prospect that the defamation claim could be allowed to proceed. Of course, even in that eventuality, Mr. Ghomeshi's lawyers will have to persuade the court that the statement complained about is defamatory, and not something that is normal and acceptable for an employer to say in these circumstances. The damage associated with the CBC statement can also be questioned given the extensive self disclosure of behaviour in Mr. Ghomeshi's Facebook post, and the subsequent public statements by third parties regarding Mr. Ghomeshi's behaviour.
The claim for breach of confidence/common interest privilege (which occupies the balance of Mr. Ghomeshi's Statement of Claim) is likely to face even greater challenges. In it, Mr. Ghomeshi alleges that he provided information to CBC executives about his personal sexual activities based on a "common interest" they shared. The alleged common interest was to prevent the publication of what Mr. Ghomeshi claims are false allegations concerning his sexual activities that he believed were about to be made by a former sexual partner, or to manage the response to those allegations if they became public. Mr. Ghomeshi alleges that the CBC received the information about his personal life on this basis, and that when it relied on the information to terminate his employment (as Mr. Ghomeshi alleges it did), the CBC committed a breach of confidence that entitles him to substantial damages.
The breach of confidence/common interest privilege claim is likely to face even more difficulty under the Weber test than the defamation claim, since it seems on the face of it to be inextricably tied up in the management of the employment relationship between Mr. Ghomeshi and the CBC, under the collective agreement. Even if the breach of confidence/common interest privilege claim is able to overcome this hurdle, other procedural challenges are likely. A breach of confidence/common interest privilege claim is very unusual in an employment case. That being the case, the court will need to consider whether, as a matter of public policy, an employer's conduct in managing an employment relationship (including receiving and evaluating information from the employee and relying on that information to discipline or terminate the employee where the employer believes this is warranted) should subject the employer to a claim for breach of confidence/common interest privilege, in addition to the claim for wrongful dismissal that an employee can also make in these circumstances.
As an illustration, take the case of a harassment complaint by one employee against another, where the law requires the employer to conduct a reasonable investigation, including advising the subject of the complaint about the allegations that have been made and the information provided in support of those allegations, and give them an opportunity to respond to the allegations and "tell their side of the story". Can the employer be precluded from relying on this information to discipline or terminate the employee based on a perceived "common interest", and be subject to a claim for substantial damages if it breaches this confidence, or should the breach of confidence/common interest privilege claim be dismissed on the grounds that it subjects the employer to multiple claims arising from the same facts?
The fact that the damages claimed by Mr. Ghomeshi in the breach of confidence/common interest privilege claim are many, many times greater than the maximum remedy he could hope to achieve in a grievance arbitration, or that a common law employee could hope to achieve in a wrongful dismissal lawsuit, only emphasizes the significance of this issue.
What the unfolding Ghomeshi story may mean for employers is that they will need to be ready for employees who depart on acrimonious terms to copy the Ghomeshi strategy in an effort to supplement their arbitration rights, or their right to bring a wrongful dismissal action against the employer. In these circumstances, an effective response by the employer's counsel is essential.