Canada: Jian Ghomeshi May Have Lost The Last Chip He Had To Play In His Defence

Last Updated: November 12 2014
Article by Howard Levitt

Jian Ghomeshi played a high risk, high stakes game. And he lost almost all of it. Now he could lose what may be the last chip he has left to play in his defence — the backing of his union.

By getting out last Sunday ahead of the news breaking about his alleged violence and harassment against women, Ghomeshi had the opportunity to shape the narrative, all in the legally privileged, libel-proof form of a statement of claim that viciously attacked the CBC.

It was a legally ill-founded claim (since a unionized employee like Ghomeshi has no standing to sue an employer). But it would also have had the impact of scaring off potential complainants who might be intimidated by Ghomeshi's aggressive litigiousness, not to mention the prospect of being outed — truthfully or not — in his version of events as willing BDSM participants.

But the gamble didn't pay off. More accusers defiantly stepped forward, his left-wing supporters like Judy Rebick and Elizabeth May scattered for cover, the social media dialogue turned against him, and now he finds himself abandoned even by his crisis-PR firm, Navigator — a sure sign that worse is coming.

Under normal circumstances, Ghomeshi would still have one life raft left — the protection of his union, through which he has said he will file a workplace grievance. Except, there, too, he may be out of luck.

Ghomeshi is represented by the Canadian Media Guild (CMG), which has a history of prioritizing respectful workplace environments. If his allegedly victimized CBC co-workers — who are also unionized — or the guild's political supporters outside of the corporation complain that their interests are being ignored or even violated (by the union supporting an alleged abuser and harasser), the union has the right to refuse to take his case any further.

Can a union do that? Absolutely. Its only obligation to Ghomeshi is to not act arbitrarily, discriminatorily or in bad faith toward him. If the union makes a reasoned decision that Ghomeshi is toxic, and that representing him does not do justice to its other members, its own principles, or its pocketbook (the arbitration will be very expensive), it can drop him with impunity.

Ghomeshi still won't be able to go to court. His only recourse would be applying to the Canada Industrial Relations Board, claiming his union has not properly represented him. The statistical history of success in that kind of case is less than 1%. Even if he fails here, he's still blocked from a court action; such are the nature of union members' protections in this country.

Although it was unsuccessful, Ghomeshi's gambit was not inherently foolish. Given the awful allegations he knew were about to emerge, his only hope for retaining his reputation was to cast himself as the unjust victim of an unfounded dismissal and of false allegations. There was a good possibility that it would have worked. Victimized women have great difficulty reporting on their accusers. They would risk social shaming, ("slut-shaming," as my 18-year-old daughter refers to it) self-doubt, his legal team's investigations into their sexual background, unwanted potential publicity, media scrutiny, questions as to their motives, and the glare of the cameras. All of those normal problems are dramatically enhanced by the story of consensual BDSM — something your average accuser wouldn't want their mother reading about.

In my experience, it is extremely difficult to have women come forward with sexual harassment allegations. Invariably, they want promises of confidentiality. Although those promises are often made, they are invariably false. The accused party also has legal protections, including the right to know the name of the accuser and the details of the accusation.

(Notably, the Ghomeshi publicity appears to be helping more women speak up about abuse in the workplace — already this week, my practice has seen a number of women coming forward, inspired by Ghomeshi's accusers, revealing incidents of harassment, some going back years).

What would I do if I acted for the CBC? I would come at him hard while he's down. Issue a defence, scripted in a tone more of sorrow than anger, detailing the allegations. Be vocal about supporting women and respect in the workplace as your motivating principles (and in the CBC's case, make clear your plan to do a better job at cleaning up the problems that have been reportedly allowed to take root). Make it clear that Q has a large group of dedicated, smart, skilled professionals, just as talented as Ghomeshi, and that the show will go on without impact. Continue investigating and remind Canadians how responsive executives were in cutting him loose, even if they may feel compassion for whatever demons may be personally troubling him.

And if I acted for Ghomeshi? I'd make a virtue of necessity. If he can claim to be mentally troubled with, say, a sex addiction, or anger issues, then play on that. Apologize profusely to all those he has hurt, seek help, blame his advisors for the aggressive approach he initially took (against his own better judgment, if he can claim that). Complain that the CBC fired him after they had agreed he would have time off to recover from his disability. This has the advantage of legal human rights protection. It may be the only shot he has left.

Originally published by Financial Post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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