With the dizzying events of the past week, it seems worthwhile to revisit Jian Ghomeshi’s statement of claim, since it contains the most detailed account of his dealings with the CBC and advances his legal theory in response to the termination of his employment.
Para. 6: Mr. Ghomeshi states the CBC misused personal information “provided to it in confidence and under common interest privilege at a time when the CBC knew Mr. Ghomeshi was vulnerable. The misuse of Mr. Ghomeshi’s personal and confidential information against him should be condemned by any informed member of the public.” Here, Mr. Ghomeshi strikes the theme repeated throughout his claim, that he and the CBC were engaged in a common venture to prevent the publication of a story about non-consensual sex by an ex-girlfriend. I will comment further on this below, but his statement that misuse of the personal information should be “condemned by the public” is rich, since it was Mr. Ghomeshi who initiated and lost the public relations war with his Facebook post and precipitous statement of claim.
Para. 11: Mr. Ghomeshi states “In good faith and with concern for their common interest in refuting scurrilous allegations, he approached his employer to advise the CBC of the threat of a public release of a fabricated story about his private life.” Note that it was Mr. Ghomeshi’s decision to advise the CBC of the threat of publication. He obviously wanted to get ahead of the story, hoped that the CBC could be convinced to side with him and perhaps thereby the story could be quashed. None of that transformed the CBC into Mr. Ghomeshi’s partner.
Para. 18: “At the request of the CBC, Mr. Ghomeshi directed his legal counsel to share with the CBC certain materials exchanged between himself and the woman believed to be behind the allegations.” This must be in reference to videos and photos mentioned in a Globe and Mail story, as having been provided by Mr. Ghomeshi to CBC officials in the days prior to the termination. This simply points up the fact that, up until then, the CBC had in its possession what Mr. Ghomeshi chose to share. Therefore, any decision made or action taken by the CBC up to that point was coloured to that extent. Undoubtedly, after viewing the materials, the CBC decided it could not be seen to be associated with the practices they depicted.
Para. 21: Mr. Ghomeshi states here that the CBC was not concerned with whether the practices were consensual, but rather with the “negative public perception, should the fact that Mr. Ghomeshi engaged in BDSM become public. In doing so, the CBC was making a moral judgment about the appropriateness of BDSM.” Making those kinds of judgments is the right of an employer.
Para. 22: “Engaging in BDSM is part of the normal continuum of human sexual behaviour, and it is increasingly common that engaging in BDSM would not be seen as shocking or scandalous to informed North Americans.” With this pleading, the entire gamut of BDSM activities have now become relevant and open to scrutiny.
Para. 23: “Nevertheless, based on the CBC’s antiquated perspective, the CBC terminated Mr. Ghomeshi’s employment.” How do you go from “increasingly common” to “antiquated perspective” in one paragraph?
Para. 26: This paragraph quotes CBC’s public statement on the termination, that “Information has come to our attention recently, that in CBC’s judgment precludes us from continuing our relationship with Mr. Ghomeshi.”
Para. 27: Mr. Ghomeshi states that the CBC statement confirmed the basis of the termination was the confidential information “that had been disclosed voluntarily and in good faith to the CBC by Mr. Ghomeshi.” So what? If an employee happens to make a confession, or to provide damaging information to an employer in the course of an internal inquiry, the employer is entitled to use the information as it sees fit. Mr. Ghomeshi’s legal theory is that by providing the information, CBC somehow became a partner of his in how that information would be used or interpreted. No employer in their right mind would ever agree to such a thing. The theory is ludicrous.
Para. 28: “As described above, due to their common interest in refuting any false allegations that he engaged in non-consensual sex, Mr. Ghomeshi confided in Thomson, Boyce and the CBC.” Okay, but Mr. Ghomeshi could not control how they would view the information he confided to them.
Para. 31: “In bad faith and violation of a mutual understanding of a common interest between itself and Mr. Ghomeshi, the CBC violated the confidence that it had been entrusted with over several months respecting Mr. Ghomeshi’s personal life and wrongfully used the confidential information obtained by it under the guise of trusted confidant, as the basis to terminate his employment.” Once Mr. Ghomeshi chose to share the personal information, he lost control over how it would be used. No blanket undertaking was or could have been given by the CBC that information provided to it would be used solely for the protection of Mr. Ghomeshi.
Para. 32: “Mr. Ghomeshi was not aware, and at no point did the CBC give notice, that it was continuing to conduct an investigation into Mr. Ghomeshi’s conduct or that the information disclosed to it would be used as the basis of his termination. Mr. Ghomeshi would not have shared information about his private life with the CBC, had he appreciated that the CBC would ultimately use the information provided to it to terminate his employment.” It was Mr. Ghomeshi’s decision to disclose the information, based on what he considered to be his best interests. That is the risk he took when the information was disclosed.
Mr. Ghomeshi’s statement of claim was filed on Monday, October 27, before a number of women came forward this week and alleged that he engaged in non-consensual sexual assault. In putting forth a case of termination for cause, our law permits an employer to rely on information it acquires after the fact. Mr. Ghomeshi’s claim was hopeless before, and is even more so now.