But it is far too early to draw any definitive conclusions. I am not involved in this case in any way and have no first hand knowledge.  I am certainly in no position to assess whether or not Ghomeshi’s conduct was such that it actually substantiated the termination of his employment. But a few observations can be made to this point in time.

For one thing, unionized employees generally face quite an uphill battle in launching lawsuits. The Supreme Court of Canada has ruled, on a number of occasions, that unionized employees who are fired must use their grievance arbitration process. As a unionized employee, this means that Ghomeshi must proceed with a grievance arbitration with respect to the main  issue in his dispute – whether the CBC had just cause for terminating his employment.

Ghomeshi’s lawyers are obviously aware of this law. As a result, they have not sued for “wrongful dismissal.” Instead, they have framed the claim as one of “breach of confidence” and “defamation.” This is essentially a back-door effort to circumvent the existing case law and try to show that the essence of Ghomeshi’s case is not really wrongful dismissal.

Hard to imagine that much of the case will proceed successfully. In all likelihood, there will be a preliminary motion in which the CBC will seek to have most, if not all of the case thrown out. The basis for the motion will be the argument that this is really a lawsuit over the CBC decision to terminate Ghomeshi’s employment. The Statement of Claim itself alleges that the CBC fired Ghomeshi because it made a moral judgment about the appropriateness of Ghomeshi’s sexual conduct. For the most part, this type of allegation and dispute would be the type of issue that an arbitrator has the exclusive legal jurisdiction to adjudicate in a unionized context.

What about allegations of “breach of confidence?” In certain circumstances, dismissed employees can succeed with tort claims that are beyond the scope of the normal dismissal claim. But, for the most part, the court must find that the conduct is outside of the scope of the employment relationship.

Here the Statement of Claim alleges that Ghomeshi shared various details about his sexual practices, which it is alleged included consensual BDSM. The claim alleges that Ghomeshi shared this information with the CBC “voluntarily and in good faith” in the interest of working with the CBC to refute “false allegations.”

Does this duty of confidence normally exist? It might in certain limited circumstances. For the most part, when employees tell their employers about conduct in which they are involved, they are not normally immunizing themselves from their employer’s future assessment of the propriety of their conduct. To date, Canadian law has not normally recognized a principal of prophylactic, premature explanation as a means of inoculating oneself from future disciplinary action.

If the facts demonstrate that CBC either explicitly, or even implicitly, undertook to ensure confidentiality and agreed that it would not use Ghomeshi’s information for any other purpose, perhaps there might be an argument. But that does not even appear to be the allegation that is being made in the claim.

Overall, there may well be something to the suggestion that has been made by some commentators that the Statement of Claim is largely strategic, a further protective move aimed at discouraging any would-be complainants from coming forward under the threat of facing expensive litigation. But I did not read the Statement of Claim as one that was filled with defamatory statements made about other individuals. Nevertheless, given that the CBC is not likely to back away from the litigation any time soon, one can’t help but wonder about the real intended recipients of the claim and the real goals of the lawsuit.

As I mentioned, I am in no position to predict the final results or assess the various claims. But if at least part of the claim remains public (union arbitration hearings are not), salacious news stories will create lots of buzz. Canadians are bound to find the details of Ghomeshi’s alleged BDSM lifestyle titillating, particularly in the wake of the world wide success of 50 Shades of Grey.

The employment law question, assuming that Ghomeshi’s alleged conduct was in fact consensual, will be whether an employer can fire a high profile employee for legal personal behaviour to which it objects because of its concerns about its own profile and image. If the case is ever actually decided (rather than settled like most Canadian cases), the decision is likely to make for some fascinating and very entertaining reading.

In Canada, employees do owe a duty of fidelity to their employees.  This does not mean that employers can control an employee’s extra-office activities.  However, if personal activities can be linked back to the employer and can be seen to create a conflict of interest, employers may have legal grounds for concern.

In Mr. Solomon’s case, the Toronto Star has printed a story alleging that Mr. Solomon was engaged in brokering the sale of high end paintings and masks, accepting significant commissions for these activities, and failing to disclose the fact that he was earning commissions to the purchasers of the art.   The article alleges that Mr. Solomon came to know the buyers and sellers in the course of his role as a journalist working for the CBC.  The apparent suggestion is that he used his CBC access to certain individuals to further his private art brokerage business.  These allegations have not been proven in a court.  However, the Star has also referenced a public statement by Solomon in which he stated that he never “intentionally” used his position that the CBC to further his art business.

To make things a bit more interesting, the Star also quotes CBC spokesman Chuck Thompson as having stated that Mr. Solomon had disclosed his involvement in the art business and that CBC had not had any concerns.  Thompson supposedly stated that Mr. Solomon had not “traded on his journalistic contacts.”

It seems that the Star was not satisfied with this response and set out to push the matter further with the CBC by disclosing further results of its own inquiries.

There may well be significant factual disputes between Mr. Solomon, the Star and the CBC over these allegations.  It is impossible to know, at this point, what facts will emerge.

If all of the allegations as stated in the Star report were proven true and the CBC were to be able to demonstrate that Mr. Solomon was using his journalistic contacts to further his personal art brokerage business, this could well be the type of conflict of interest violation that would substantiate a dismissal for cause.

However, If Mr. Solomon were to show that he disclosed his activities in a truthful manner to the CBC and that the CBC had approved, even implicitly, Mr. Solomon could have a reasonable case.  Any examination of the facts will involve a careful review of the details that Mr. Solomon disclosed to the CBC compared to the actual facts and activities that can be proven.

In this picture, it appears that cracks in the paint started to appear when one of Mr. Solomon’s art deals became acrimonious.  Apparently there was a dispute over commissions owing with respect to one of Mr. Solomon’s sellers.   The story involving allegations of conflict of interest broke subsequently.

Although only a few Canadian employees might have the opportunity to broker high end artwork with the connections that they meet at the workplace, there are many other types of conflict of interest.  Hundreds of reported cases have looked at a wide range of conflicts and considered guidelines.  Many of these cases, for example, involve bank employees, who enter into deals with clients outside of bank auspices.  There are many other examples as well in other workplaces.

Here are few key points that both employers and employees should consider in conflict of interest cases:

1.  Employer Policy:  Employers should certainly have detailed conflict of interest policies in place that spell out expectations with respect to gifts, private activities with clients and other related matters.  Employees should be provided with these policies when they first commence employment.

2.  Disclosure:  Employees who would like to run a private business that might be viewed as a conflict are well advised to ensure that they have employer approval for their activities.  It may make sense to get legal advice first but, ultimately, full disclosure to an employer of the type of business activities that the employee intends to operate, coupled with explicit or, at least, tacit approval from the employer can have a prophylactic effect.  Having a paper record of these disclosure, even in email form, can be crucial.

3.  Honesty and Legality:  Even if the employer is aware of the activities, that does not give an employee carte blanche.  If the employee’s business veers into the realm of illegal activities or activities that otherwise create exposure for the employer, the employer may still have grounds to terminate employment for cause, even if some of the activities were disclosed initially.  In the CBC case, if the CBC were able to prove that any of Mr. Solomon’s activities were actually illegal (for example, earning a secret commission or tax evasion), this could put Mr. Solomon in a very difficult spot.  At this point, there is certainly no basis for believing that Mr. Solomon was involved in anything in this category.

As with the situation involving Mr. Ghomeshi, it will be fascinating to follow this case and see the ultimate outcome.  If a confidential deal is reached between Mr. Solomon and the CBC, Canadians may never really find out how the situation was resolved.  For now,  it certainly looks as though Mr. Solomon will require the services of an entirely different type of broker to arrange for a settlement that may well be worth far more than many of the pieces of art that he was allegedly involved in trading.