Thursday, 30 October 2014

Legal Strategy as PR Strategy - Jian Ghomeshi's Dubious Lawsuit

As of this morning, the number of women making allegations of sexual violence against Jian Ghomeshi has grown to eight, with at least one person, actress and RCAF Captain Lucy DeCoutere, coming out of anonymity.  While I am a strong believer in the presumption of innocence, there is no question that this story has ceased to be about whether Jian Ghomeshi was fired for liking kinky sex (the way he has framed it in his Facebook post on Sunday), and is now about the emerging portrait of someone serially engaging in violence against women.  No charges have been laid, as of yet, but it stretches the imagination to believe that eight different women have all concocted similar stories in a malicious attempt to scupper Mr. Ghomeshi's career.  Whether or not he may face criminal prosecution remains to be seen.
And it is in this changing light that one begins to wonder if Mr. Ghomeshi's legal strategy isn't all part of the PR strategy that was implemented with his careful casting of the "truth" on Facebook.  Obviously, he has received advice from his "high-stakes" handlers at Navigator to get "out in front of the story" by formulating and offering a friendlier version of events.  But the lustre is coming off that narrative with each passing day and the mounting number of alleged victims.  So, what about this lawsuit that he started?  He wouldn't have sued the CBC if he and his legal team didn't think he had a case, right? 
Sadly, people assume that the mere commencement of an action in the courts must signal that the defendant has "done something wrong".  The fact is anyone can "sue" (start an action against) anyone else at any given time without ever having to establish that their claims have any merit.  Although bringing a matter to litigation is generally quite costly, it is a relatively simple and inexpensive process to start a legal claim.  And you can rest assured that it does have the impact of suggesting to the broader world that you have been wronged.  But what leads me to believe that Mr. Ghomeshi's lawsuit is more a PR than a legal play?
Let me start by saying that Dentons is a well-respected law firm.  I suspect their lawyers are smart, efficient, careful, and they know what they're doing.  But in this case they have brought a claim that has very limited chances of success.  Ever since the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, it has been the law of the land that matters arising out of an employment relationship that is governed by a collective agreement generally must be brought through the grievance and arbitration procedures, not the courts.  All such disputes fall within the exclusive jurisdiction of a labour arbitrator.  The decision in Weber was most recently upheld and applied in Ontario in George v. Anishinabek (Police Service).
And the decision in Weber is not limited to claims of unjust discipline or discharge.  It relates to any claim related to the employment and which can be said to fall within the 'four corners' of the collective agreement between union and employer. One of the earlier cases to consider Weber was the decision of the Ontario Superior Court of Justice in Ruscetta v. Graham.  In that case, an employee sued the CBC and its disability claims manager for their role in the denial of his claim for workers’ compensation benefits.  The disability claims manager had stated in correspondence to the Workers' Compensation Board (now the WSIB) that the employee was a “problem employee”, which was then picked up by the carrier of the CBC’s Long-Term Disability benefits (which were also denied).  The employee sued, alleging that the employer had made negligent misstatements and or defamatory comments, but also pursued a grievance with respect to the denial of LTD benefits.  On the basis of Weber, the Court found that the essential character of the dispute did arise out of the collective bargaining relationship and that the dispute was therefore within the exclusive jurisdiction of a labour arbitrator.  At paragraph 9 of the decision, the Court stated:

In short, [the] defamation complained of arises out of a communication from an employee of the CBC whose precise job was to communicate with the WCB regarding the claims of employees who are bound by the collective agreement and that communication was about the plaintiff solely in his capacity as an employee. As the collective agreement does govern issues such as injuries and LTD benefits, and the dispute arises in an employee-employer context, this court lacks jurisdiction to hear the matter.
 The motion to dismiss the action was granted.
With very few exceptions, defendants have been successful in arguing this jurisdictional issue to have actions in the courts dismissed.  Here are but a few examples:
Giorno v. Pappas – An employee brought a defamation action based on a memorandum that was circulated by another employee criticizing her work performance.  The plaintiff was a member of the bargaining unit represented by OPSEU, and also filed a grievance related to the issue, which was settled.  The Court determined that the subject matter of the action fell within the collective agreement and was subject to the exclusive jurisdiction of a labour arbitrator appointed under the agreement.  Therefore, the Court granted the defendants' motion to dismiss, which decision was upheld by the Court of Appeal.
Bujold v. Taylor – An employee brought a defamation action against his former supervisor on the basis that the supervisor leaked information provided by the employee to the effect that several named co-workers were using alcohol and drugs on the job.  The Court found that, as a unionized employee, the plaintiff was required to bring his dispute forward through the grievance and arbitration procedure, especially since part of his claim related to “loss of income” and was tantamount to a constructive dismissal claim.  The Court granted the defendants' motion to dismiss the action.

Soulos v. Leitch – The owner of a construction company brought defamation claims against members of the union, claiming that they had made untrue and disparaging comments about the company’s practices, and that the union had failed to live up to certain representations it made to the employer.  The Court granted the defendants' motion to dismiss the action as the allegations should have been addressed through the grievance and arbitration procedures under the Provincial collective agreement between the company and the union.

Byrne v. Ontario – An OPP Constable brought a claim for harassment, intimidation, and other tortious conduct against a number of fellow officers and management based on issues arising in the course of his employment, including the issuance of discipline and the imposition of performance management measures.  The Court found that grievance arbitration and/or the legislated scheme for disciplinary matters (under the Police Services Act) provided the exclusive means by which such disputes should be adjudicated.  Accordingly, the Court granted the motion to dismiss.

Walters v. Toronto Transit Commission – A bus driver brought a claim for malicious prosecution after the TTC instigated charges under the Highway Traffic Act following an accident the driver had in the course of his duties.  The Court found that framing the dispute as “malicious prosecution” did not take it outside the bounds of the collective agreement.  The employee had the ability to challenge any discipline that was imposed or otherwise grieve the issue of the TTC pursuing charges, and the issue should be dealt with through labour arbitration.  The Court granted the defendants' motion to dismiss the action.

Paonessa v. Lifemark Health Management Inc. – An employee who was terminated due to physical inability to perform the essential functions of his job brought a claim against the company that performed the Functional Abilities Evaluation that found him unfit.  The plaintiff's discharge was grieved and arbitrated, resulting in a settlement.  He was ultimately terminated a second time, due to an alleged breach of the settlement, and that termination was also grieved and the grievance settled.  The Court granted the defendants' motion to dismiss the action on the basis that the issue arose under the collective agreement and the arbitration process provided an “adequate remedy” to the plaintiff.
However, it must be noted that the defendant does not always succeed.  In one of the earliest post-Weber decisions, the Ontario Court of Appeal found that certain claims by a unionized employee could be brought in the courts.  In Piko v. Hudson's Bay Company, the employee had been found to have committed fraud, and her employer initiated criminal charges.  The Crown eventually withdrew the charges.  The employee brought a grievance challenging her discharge as being without just cause, but she also commenced a claim for malicious prosecution against the employer.  The Hudson's Bay Company brought a motion to dismiss the action on the basis that the subject matter of the dispute arose under a collective agreement and should be dealt with through arbitration.  The motions judge agreed, and dismissed the action.  However, Piko appealed.  At the Ontario Court of Appeal, the Court had to consider the impact of Weber, and observed:
Nonetheless, Weber also recognizes that the collective agreement does not govern every dispute between an employer and an employee. Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.
The Court considered the relevant provisions of the collective agreement, and found that the essential character of the dispute did not relate to the agreement because of the employer's actions:
But her claim that the Bay maliciously prosecuted her in the criminal courts lies outside the scope of the collective agreement. The Bay itself went outside the collective bargaining regime when it resorted to the criminal process. Once it took its dispute with Piko to the criminal courts, the dispute was no longer just a labour relations dispute. Having gone outside the collective bargaining regime, the Bay cannot turn around and take refuge in the collective agreement when it is sued for maliciously instituting criminal proceedings against Piko.

In the result, the Court of Appeal allowed Piko to pursue her tort claims against her former employer.

Although relatively rare, the Piko decision has been relied on in other similar cases.  See for example, O’Loan v. Risinger, in which the actions of the defendants were found to be "personal" and unrelated to the plaintiff's employment, even though they all worked together in the same workplace.

So, does Mr. Ghomeshi's team really think it can shoe-horn its case into the exception created by Piko?  Can it point to some way in which the CBC has stepped "outside the collective bargaining regime" and brought itself under the 'general law' applied by the courts?  On the pleadings, there doesn't appear to be a suggestion that the CBC went beyond its responsibility and authority as Mr. Ghomeshi's employer in obtaining and acting on the personal information he provided.  The CBC had to make an assessment of whether the allegations, which had been bubbling for months, represented a real risk of damage to the broadcaster's reputation and brand.  As an employee, and one who was a very public face of the CBC, Mr. Ghomeshi had a responsibility to not engage in conduct (whether in the workplace or outside of it) that could damage his employer's business interests.  In short, the alleged tortious conduct is all part and parcel of the CBC managing the employment relationship with one of its "stars".  This undoubtedly would fall within the CBC's management rights under its collective agreement, including its authority to impose discipline for misconduct.  The fact that Mr. Ghomeshi has stated an intention to challenge his dismissal under the collective agreement bolsters this conclusion.  Characterizing the disclosure of personal information as being an incident of "common interest privilege" is just one way of reframing a very common workplace issue as a legal one - the situation is no different than a million other cases where an employee advises his/her employer of work-related issues before they come to the employer's attention in an effort to mitigate the negative consequences.  If "privilege" attached to these types of disclosures, employers would never be able to rely on statements made by an employee in the course of an investigation into alleged bad behaviour.  I doubt very much the courts want to set that precedent.

In short, I don't see how Piko could apply to this fact pattern, and I anticipate that the CBC will make the argument that it does not, in an effort to have the action dismissed.  Mr. Ghomeshi's legal team undoubtedly knows this, too.  That being said, it's entirely possible that commencing the court action really was part of the PR strategy to start with, and has already served its desired purpose.

Do you have questions about a legal dispute arising in the workplace?  Want to know whether it belongs in the courts?  If you have any questions about workplace law, don't hesitate to contact Lance Ceaser for assistance.

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