Don’t expect Ghomeshi lawsuit to make its way to court: employment lawyers

The lawsuit filed by radio host Jian Ghomeshi against the CBC is unlikely to ever land in a courtroom, employment lawyers say.

Toronto attorney Bill Gale said barely one per cent of civil suits go before a judge, with the vast majority of cases settled out of court.

Gale expects Ghomsehi’s case to follow a similar path, particularly since court proceedings would unlock secrets both parties would probably prefer to keep from the public’s view.

“I would think they would settle because I’m sure there are lots of unsavoury details about both sides that are going to come out if there’s an actual hearing,” said Gale, a partner at Grosman, Grosman & Gale.

“It’s too important to both CBC and him to keep this quiet. They’ll settle at some point and we’ll never know.”

He described Ghomeshi’s attempt to seek $55 million in damages as “ridiculous,” saying Canadian case law differs from that in the U.S. where awards can reach millions of dollars.

“A huge Canadian judgment for punitive damages, for example, would be $1 million,” he said. “(And) that would be astronomical.”

Ghomeshi has said he was fired because of his sexual behaviour and has written on social media that he engaged in adventurous forms of sex that included role-play, dominance and submission, along with “rough sex (forms of BDSM).” The activities were consensual and he and his partner used safe words to signal when to stop the activity, he said.

The Toronto Star reported that it approached Ghomeshi with allegations from three women who say he was physically violent to them without their consent during sexual encounters or in the lead-up to the encounters. The newspaper said Ghomeshi _ through his lawyer _ responded that he “does not engage in non-consensual role play or sex and any suggestion of the contrary is defamatory.” The Star reported none of the women filed police complaints.

Ghomeshi’s lawyers filed a lawsuit this week against the CBC, alleging breach of confidence, bad faith and defamation by the public broadcaster, seeking $55 million.

Another Toronto employment lawyer called the damages sought by Ghomeshi as “almost laughable” and he believes the ex-radio host has little chance of victory if the case reaches court.

“An employer is free to hire and fire at their discretion, as long as they don’t breach human-rights-code legislation and they provide a fair severance,” said David Whitten, a partner with Whitten & Lublin.

“Last I checked, sexual adventurism is not protected (human-rights) code ground, so they were free to do what they did.”

He said if an employer doesn’t like a worker’s activities outside the office, they’re free to let the person go on that basis alone.

In Whitten’s view, Ghomeshi’s lawsuit is more a public-relations manoeuvre to get public sympathy on his side.

“It’s designed clearly to make a real impression on the media and the public at large that he’s coming out swinging,” said Whitten, who has represented employers and employees.

Neither Whitten nor Gale had examined the statement of claim Ghomeshi filed this week.