The CBC continues to provide wonderful material for Canadian employment lawyers. Its very public employment disputes are fascinating case studies. The most recent case involves allegations of conflict of interest against prominent host Evan Solomon. Mr. Solomon was apparently dismissed by the CBC. Do the allegations warrant a finding of just cause? We don’t know yet, since the case has not yet been adjudicated. But it is worth considering some aspects of conflict of interest cases.
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.