Canada Corner


#1

CBC host fired for BDSM activities in private life: http://news.nationalpost.com/2014/10/26/jian-ghomeshi-reveals-details-of-sex-scandal-after-threatening-to-sue-cbc-for-50-million/#1

Seems strange that CBC would fire someone for private life sexual proclivities, unless they had reasonable evidence that the activities were either non-consensual or extremely violent. That said, there are so many different, competing, and often contradictory and hypocritical aims when such institutions deal with sex matters – they want to appear sexually liberal and accommodating, yet intolerant of even consensual sexual violence towards women since other factors may affect that consent such as power/position or abuse or psychological issues.

Interpretation of this “scandal” will largely depend upon facts that are currently largely unknown, with rumors/allegations ranging from fairly innocuous BDSM play between consenting adults, to clearly non-consensual closed fist beatings - from 1 displeased former lover trying to slander him, or 4+ former partners who are unwilling to go publicly on record but who have indicated abusive, non-consensual behavior. And then there is the issue of what conduct an individual carries on in private that an employer can use for “cause” to fire without compensation for bringing disrepute on the employer – that’s not likely the case here since it doesn’t seem like CBC is alleging cause, and instead just fired him by providing pay in lieu of reasonable notice.

From a legal perspective, his lawsuit seems to have little chance, since he’s a union employee and is required to go the union grievance route through his collective bargaining agreement, and is unable to legally sue for wrongful dismissal. Unsure if he was paid his contractual severance anyway, in which case it couldn’t be wrongful dismissal anyway as employers can always fire employees provided they comply with contractual/statutory reasonable notice provisions (or common law rights, in the absence of a written contract) provided that there’s no illegal discrimination on the basis of sex/orientation/race/age.

This host was a significant figure in Canadian broadcasting though - most known for his crazy interview with Billy Bob Thorton from a few years ago, when Billy Bob got confrontational after his acting career was mentioned despite his previously stated desire for the interview to focus solely on his musical career. So this case will get a lot of future coverage and could set some interesting legal precedents that affect individual rights as well as canadian labour law.


#2

It’s an interesting story. One wrinkle is that some of the activities Jian says he engaged in may be illegal even with consent: punching, choking, etc. In Canada, you cannot consent to any activity that causes bodily harm (R. v. Jobidon, [1991] 2 SCR 714). So extreme BDSM may be illegal with or without consent. Certainly if something “goes wrong” and the other person is hurt or killed you can be criminally liable even if you first obtained consent.

e: Another interesting aspect is the “rise of new media” element. The journalist who broke the story, Jesse Brown, has been running a mostly excellent podcast critiquing Canada’s milquetoast media culture. Apparently he only passed the story onto the Star as he doesn’t have liability insurance and was afraid of being sued (apparently for good reason!).


#3

Did he admit to punching? I’d heard that rumour, as I mentioned in my post, but couldn’t find anything to confirm it just now. Not exactly traditional fetish play, so if that’s true it would heavily sway at least my interpretation into “he’s an abusive asshole” who should be criminally charged territory, even aside from your point, which is correct - you can’t consent to at least serious bodily harm.

The issue of what level of bodily harm you can consent to is ambiguous though. Any (and all) sort of fetish discipline play should presumably not be caught by the prohibition against causing bodily harm (although you may be on the hook if even milder, consensual assault causes unintended serious damage, if the recipient has a heart attack or some other physical condition that is exacerbated by your conduct). And no amount of consent wouldn’t prevent someone being charged for inflicting a Taliban-level whipping.

But it’s not entirely clear where lines are drawn, in this or other contexts -obviously athletes in combat sports consent to some level of potentially serious bodily harm, likely far worse than anyone engaging in sexual play.


#4

Really? How is boxing or other contact martial arts dealt with in Canada, from a legal perspective?


#5

#6

You can have a successful wrongful dismissal suit even if the employer did not terminate for cause, so it’s hard for me to see how this will fall out.

On the subject of his personality it’s not the first time I’ve heard he’s a bit of creeper. Sadly we’ll probably learn more than we ever wanted to know about his sexual habits going forward.


#7

He’s taking the BSDM/kink-shaming angle to defend himself against what may be non-consensual physical abuse.


#8

Yeah, that’s what I think too, especially after reading that article you linked to above. It also makes sense in the context of his “$50m lawsuit” which doesn’t make any sense other than as a PR move.


#9

I explained the law above – it’s only “wrongful dismissal” if the employee is not given reasonable notice or pay in lieu of such notice in connection with the termination of your employment - that’s the general rule. Termination of employment can also be “wrongful” if it was due to some prohibited discriminatory grounds. An employer can terminate the employment of an employee at any time, subject to compliance with this conditions.

“cause” just mitigates the obligation to pay reasonable notice/pay in lieu.

But NONE of that is even applicable in this instance, since his employment is governed by a collective bargaining agreement and therefore he is expressly prohibited from suing for wrongful dismissal - so this is purely a PR stunt to pre-emptively protect his image. His only legal remedy is to file a grievance under his collective bargaining agreement and the Labour Relations Act

(edit: federal union, so Canada Labour Code instead).


#10

Right. I’m just saying that termination without cause doesn’t say anything about whether it’s potentially wrongful or not, regardless of proper severance.

But NONE of that is even applicable in this instance, since his employment is governed by a collective bargaining agreement and therefore he is expressly prohibited from suing for wrongful dismissal

I certainly defer to your greater knowledge on the subject… this does seem utterly pointless. What lawyer would agree to mount a frivolous lawsuit so easily countered? A bad one? Surely they must think there is some angle.

so this is purely a PR stunt to pre-emptively protect his image.

I feel like this is bizarro world. If the CBC let him go because of possibly nonconsensual sex stuff and then that stuff subsequently gets splashed all over the news it’s hard to see how this is going to be good PR for Gomeshi.

Overall I think you are right I just don’t understand the motivations here unless Gomeshi is delusional (which of course is very possible).


#11

Well, it seems like he may have a history of bad judgment, but I think he probably feels he didn’t do anything that bad and that therefore he has been wronged and feels the need to pre-emptively shape the narrative of what is undoubtedly a career disaster - and perhaps get an additional sizable financial settlement out of the CBC because he did help to create one of its most successful radio shows, and maybe feels he is “owed” additional compensation (or should have had more goodwill) because of that.

But his wrongful dismissal suit will be thrown out unless he can somehow successfully argue that he is not subject to the collective bargaining agreement. His own union would fight that interpretation for obvious reasons. His position is so legally clear that the lawsuit can only be rationalized on PR grounds.

Right. I’m just saying that termination without cause doesn’t say anything about whether it’s potentially wrongful or not, regardless of proper severance.

Still not sure we’re saying the same thing here, so I’ll try to reiterate more clearly to confirm. For non-unionized employees - your only entitlement as an employee is to reasonable notice in connection with the termination of your employment. That is your “severance” entitlement, and as long as you get that, you have no cause of action for “wrongful dismissal” as a general rule – you may still have recourse under human rights legislation, etc., if your employer’s actions were discriminatory towards a protected group i.e. sex/orientation/race/age (for instance, if your employment is terminated because you went on maternity leave)

What “reasonable notice” is an individual employee’s case is usually set out in a written employment agreement, but there are mandatory statutory minimums that can’t be contracted out of, and if there is no written employment agreement an employee can get common law “reasonable notice” based upon prior jurisprudence, and for employees other than executives or senior managers, “common law reasonable notice” is usually the most favorable option (so they’re actually better off not having a written employment agreement). Anyway, that was a FYI segue


#12

Perhaps he will argue that his action against the CBC–being based on “bad faith and breach of confidence” rather than wrongful dismissal or any other action tied directly to employment–is not connected to the employment relationship and thus actionable outside the collective bargain.


#13

Perhaps he will argue that his action against the CBC–being based on “bad faith and breach of confidence” rather than wrongful dismissal or any other action tied directly to employment–is not connected to the employment relationship and thus actionable outside the collective bargain. “Bad faith and breach of confidence” might not be covered by the collective bargain in which case Jian could still potentially sue.


#14

I’m only somewhat familiar with Quebec labour law, the rules in Ontario could be substantially different, but generally in Quebec you need to have a justification to dismiss a full time employee of 2 or more years seniority if you cannot otherwise come to a severance agreement with that employee. Justification can take the form of economic, i.e. the business can no longer afford to employ the individual, or restructuring where the employees position will no longer exist. Even under those conditions the business may need to take steps before actual dismissal, including offering the employee a different position or reduced compensation. So you can be dismissed with proper severance without cause and still have a case for wrongful dismissal. Even if there is cause for firing, the business may legally have to take a series of steps before resorting to firing.

i.e. if Gomeshi had been working for a Quebec company, given the length of his employment, the company would have had to provide a valid justification for dismissal as well as providing the proper severance. Obviously in this case there is potentially not a valid justification.


#15

That’s correct. Quebec has an additional requirement for termination of full time employees - it’s the only province (and jurisdiction in North America) that has that requirement. Quebec is closer to continental European law in that respect (where the ability to dismiss an employee is even more restricted) as Quebec still uses a Napoleonic-style Civil Code, rather than common law, and has evolved its provincial law using continental Europe’s similar system for reference.

Canada is also unusual in that employment law is not something that is exclusively within provincial or federal jurisdiction under our constitution, although the provinces have jurisdiction other than for Federal employers. The Federal laws are similar to those in Ontario and in the rest of Canada, with some exceptions. Quebec is distinct.

Perhaps, but the prohibition from suing is broad - i.e. it wouldn’t be sufficient to just not be “tied directly to employment” - any cause of action would have to be unassociated with his employment at all - anything arising from, or related to, the employment relationship has to go through the labour arbitration grievance process, and cannot be litigated.

Unless he has some IP rights to the show he created (if they were not properly assigned through his employment, which is almost impossible as a unionized employee) or some other non-employment relationship rights that were breached, his only real shot at litigation is to try some equity-based argument given the great benefit the CBC has presumably gotten from his show and resulting bad faith/breach of confidence/unjust enrichment but that would require significant judicial creativity and would likely be opposed by his own union too.

Of course he could also argue defamation, etc. if the CBC said slanderous things about him and his personal life that were untrue, but the CBC hasn’t and won’t speak about the details of his private life. He’d certainly have a possibly significant action against the Toronto Star and other media for defamation/libel if they are printing damaging and untrue statements about him - his damages are already massive, if he’s lost a job because of information that’s inaccurate published publicly. That’s a lot of ifs.


#16

You nailed it. That and defamation as I suggested in a subsequent response. The full text of the statement of claim is here: https://www.scribd.com/doc/244688067/Jian-Ghomeshi-lawsuit-against-CBC

The Statement of Claim is getting criticized by the Star, which seems very personally vested in this story, but I think it puts forward about the best possible case he could make in these circumstances. Doesn’t have much chance of success, but it’s not as laughable as it could have been - doesn’t bother claiming things like wrongful dismissal which would be clearly prohibited by the collective bargaining agreement.

The defamation claim seems completely lack in substance, since the CBC didn’t say anything other than it felt it couldn’t continue its relationship which is neither defamatory nor untrue. The breach of confidence/bad faith stuff is obviously his best shot, but the fact that he self-disclosed some information because he thought it was in his best interest to do so certainly doesn’t prevent the CBC from considering it or otherwise restrain the CBC from terminating his employment for any reason if it that action is in its interest. Even if he manages to circumvent the prohibition on suing in connection with matters related to his employment, he hasn’t really detailed any misconduct by the CBC.


#17

http://www.cbc.ca/player/AudioMobile/As%2BIt%2BHappens/ID/2577457919/


#18

Lucy from the trailer park boys is also making allegations about Jian being a bad date (to put it mildly). I love this country!

http://www.nationalpost.com/m/wp/news/blog.html?b=news.nationalpost.com/2014/10/29/canadian-actress-alleges-jian-ghomeshi-slapped-and-choked-her-at-his-apartment&pubdate=2014-10-29


#19

https://twitter.com/bigearsteddy


#20