Trish-Ann Tremblay had entered into a settlement agreement with her former employer, 1168531 Ontario Inc., on September 13, 2011, with respect to the Human Rights Application she had filed against 1168531 Ontario Inc.. The settlement agreement contained a standard confidentiality provision requiring parties to maintain the confidentiality of the terms of the Minutes of Settlement.

The next day after the mediation, Ms. Amy Lalonde, manager with the Respondent Company, was informed by a colleague that Ms. Tremblay had posted messages on Facebook about the mediation and settlement. In fact, the first message was posted during the mediation session itself:

"Sitting in court now and _______ is feeding them a bunch of bull shit. I don't care but I'm not leaving here without my money...lol".

After the Minutes of Settlement were signed, Ms. Tremblay posted the next message as follows:

"Well court is done didn't get what I wanted but I still walked away with some..."

Shortly thereafter Ms. Tremblay posted the following message:

"Well my mother always said something is better than nothing...thank you so much saphir for coming today..."

While Ms. Tremblay argued that there was no proof that she was talking about the Respondents as she did not mention them by name, the Tribunal held that it was clear from the date of the postings and the comments made that she was referring to the mediation. The Tribunal found that Ms. Tremblay had breached the confidentiality provision of the Minutes of Settlement. However, the Tribunal found that the Respondent Company had also breached the Minutes of Settlement by not paying Ms. Tremblay the settlement amount.

The Tribunal ultimately ordered that the amount owing to Ms. Tremblay under the settlement agreement be reduced by $1,000. In determining the appropriate remedy, the Tribunal took into account that Ms. Tremblay did not disclose the amount of the monetary settlement in her Facebook posts. The Tribunal also considered the relatively public nature of Facebook, especially in the small community in which the applicant and respondent company resided.

When mediating issues of a sensitive nature, employers should consider including confidentiality provisions in settlement agreements that specifically prohibit disclosing terms of settlement on social media sites, including Facebook, Twitter, LinkedIn, etc.

Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 (CanLII)

For more information, visit our Employment and Labour blog at www.employmentandlabour.com

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com

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.