The rapidly unfolding events involving Jian Ghomeshi (first, his announced leave of absence on Thursday, followed by his dismissal from the CBC on Sunday and then the filing of his lawsuit yesterday in Ontario) have created quite a stir among employment and labour lawyers.
The initial response from all of us was: if he is covered by a collective agreement (i.e. he works in a unionized environment), he cannot sue for wrongful dismissal. So what is he doing? The various published comments from employment and labour lawyers should highlight the differences between employees who work for a non-unionized employer and those who work for unionized employers as their remedies for dismissal are very different.
In a unionized environment, Mr. Ghomeshi has to rely on the grievance process set out in his union’s collective agreement. He cannot take his employer to court for damages for wrongful dismissal or to try to get his job back.
When I saw the report this morning explaining what he is actually suing the CBC for, I thought, if that report is correct, this makes more sense to me: Mr. Ghomeshi’s lawyers have structured his lawsuit as a tort claim rather than a wrongful dismissal claim.
Here’s my brief take on it, just based on what the reports about this case to date, and not having read the actual statement of claim filed:
As reported this morning in the Globe & Mail, Mr. Ghomeshi’s lawsuit is for significant damages ($55 million altogether) for defamation, breach of confidence and punitive damages. The amount sought in damages will not only be difficult to justify in a Canadian court (read, impossible!) but is so clearly a strategic move that his claims risk losing all credibility even if they were intended solely as a bargaining chip for whatever settlement talks the CBC might agree to in the near future.
It is important to note that in defamation (where someone has made a false statement that harms another person’s reputation), truth is a complete defence. As more details come out about Mr. Ghomeshi’s private sexual practices, and depending on what Mr. Ghomeshi alleges are the defamatory words used by the CBC and/or the innuendo from those words, this claim could well fall away early in the process.
Breach of confidence could be more difficult for the CBC to defend against, although in the employment context, the question must be asked: how much privacy or confidentiality is a high profile employee entitled to expect when sharing personal and private information with an employer whose own reputation could be tainted by allegations made against the employee which arise directly out of that information, and which was the reason for the employee sharing the information with the employer in the first place?
Finally, punitive damages are discretionary and our courts are not easily persuaded to order a defendant to pay punitive damages to a plaintiff and certainly not in the amount sought by Mr. Ghomeshi in his lawsuit.
In my opinion, the main reason for this strategy seems to be to try to protect and preserve his reputation and value as a public personality. It will be interesting to see how the CBC responds when it files its defence. Stay tuned!
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Picture Source: http://www.jian.ca/gallery/promomedia/