The dismissal of Jian Ghomeshi from the CBC continues to dominate headlines. At this point, however, it has really become much more of a case about sexual assault and the criminal proceedings that Ghomeshi faces rather than about the employment law aspects of the case. I am not going to delve into the criminal law aspects of this matter or get into a discussion about sexual assault laws in Canada. Instead, I wanted to highlight some of the employment law points that emerged from the case.
A CBC spokesperson announced earlier this week that Ghomeshi had dropped his $55M lawsuit against the CBC. According to the CBC, Ghomeshi agreed to a dismissal of the case and to pay $18,000 towards the CBC’s legal costs. Wow, what an embarrassing result; a total victory for the CBC. In hockey terms, that is the equivalent of an 8-0 loss, something that Toronto Maple Leaf fans have been known to experience (even if the CBC will have fewer future occasions to broadcast these matches). Ghomeshi can still pursue a grievance arbitration, if his union decides to take the case to a hearing. But the only courtroom he is likely to encounter now will be a criminal court, if his case winds up going to trial.
I discussed some of the employment law aspects of his case here when some of initial details began emerging. Now that the case is effectively over, it is worth highlighting a few additional points:
Although there are some very aggressive employment lawyers in Toronto, a pre-emptive strategy is simply not always the best course of action. Some Canadians might be tempted to think that a strategy that worked in the past for former Prime Minister Mulroney must be a sensible one. But each case has its own facts. Sometimes employees facing a dismissal with cause are able to negotiate a quiet resolution of their situation that involves minimal publicity and perhaps even a mutually agreeable statement about the person’s departure. It is far from clear that Mr. Ghomeshi would have been able to arrange that type of deal with the CBC. But a strategy of posting a lengthy message on Facebook, launching an outrageous, ill-conceived claim and remaining defiant is extremely risky at the best of times. It does not seem to have served Mr. Ghomeshi very well in this case.
Unionized employees face a tremendous uphill battle in trying to sue their former employers. Generally, they are prohibited from bringing such cases. If they wish to proceed, they must show that the lawsuit raises issues that our outside of the scope of the employment relationship and can stand on their own as independent torts or causes of action. In Mr. Ghomeshi’s case, he claimed, among other things, that he was dismissed because the CBC made a moral judgment about his lifestyle choice. That type of pleading almost certainly doomed this lawsuit from the start.
Employment lawyers are left scratching their heads. We must prepare a pleading that stands a decent chance of surviving the requirements that have been set out by the Supreme Court of Canada. If this cannot be done, clients will usually be advised that the claim has no chance of success. Mr. Ghomeshi may well have been provided with that advice. However, Mr. Ghomeshi’s decision to proceed with such an ill-fated claim, even after having been provided with the assessment that success was virtually impossible seems highly questionable, at best, on the part of Mr. Ghomeshi and his legal team.
The CBC did not even bother putting in a Statement of Defence in response to Mr. Ghomeshi’s claim. There was no need to do so. Instead, it simply brought a preliminary motion to strike out the claim as one that disclosed no real cause of action. Normally, that is a difficult standard to meet. Moreover, if a plaintiff becomes concerned that the case is unwinnable or that there are reasons to drop it (like the prospect of criminal charges), this can often be done on terms that are close to neutral for the plaintiff. Many defendants will agree to a consent dismissal of a lawsuit without the payment of any legal costs. If legal costs are to be paid, most defendants will agree to some type of confidentiality provision. In this case, Mr. Ghomeshi appears to have surrendered completely. His case was dismissed with costs. It was announced publicly. And it was also announced that he was forced to pay the CBC’s legal fees of $18,000. While there are certainly cases in which a plaintiff is ordered to pay the defendant’s costs after losing an actual trial, it is quite rare for a plaintiff to pay legal costs just for the privilege of dropping a lawsuit. Obviously, there are many facts that the public has not been told and it became quite clear to Ghomeshi and his lawyers that he was likely to wind up paying a much higher amount in legal fees if the case was dismissed by court after hearing the motion.
Overall, the case has been a reminder that lawyers cannot work miracles. Sometimes the best strategy for dismissed employees facing strong just cause cases is to negotiate the best possible, confidential, walk-away resolution. If that cannot be done, steps should still be taken to minimize the potential damage rather than exacerbate it.