Canada: Human Rights Tribunal Reduces Settlement Amount After Employee Violated Her Confidentiality Obligations

For the first time, the Ontario Human Rights Tribunal reduced the amount owing to an applicant under the terms of a settlement reached by the parties, after the applicant breached the confidentiality clause contained in the Minutes of Settlement by posting on Facebook that a settlement had been reached.

The Applicant, Trish Tremblay, brought an Application at the Human Rights Tribunal against her former employer and manager.  During a mediation at the Tribunal, the parties entered into Minutes of Settlement pursuant to which a financial settlement was reached.  The Tribunal did not disclose the exact amount of the Settlement or details of the dispute.

In addition to the financial terms of the settlement, the parties agreed to a confidentiality clause pursuant to which both parties agreed to maintain the confidentiality of the terms of the settlement and not to discuss or disclose the terms of the settlement with anyone other than the parties' immediate family or legal or financial advisors or as required by law.

Subsequent to entering into the Minutes of Settlement, the respondent employer discovered, through the respondent manager, that Ms. Tremblay had posted on Facebook, during and following the mediation session, references to the mediation and the settlement. For example, Ms. Tremblay posted that she didn't get what she wanted but "still walked away with some..." and she later posted that " mother always said something is better than nothing".

After learning of the Facebook postings, the respondent employer decided not to pay Ms. Tremblay any of the amounts it had agreed to pay pursuant to the Minutes of Settlement. The respondents then filed an Application for Contravention of Settlement pursuant to Section 45.9(8) of the Human Rights Code, which permits the Tribunal to make any order it considers appropriate to remedy a contravention. The employer argued that the settlement should be declared null and void as a result of Ms. Tremblay's breach of the confidentiality clause.

Ms. Tremblay denied that she breached the terms of the settlement and argued that, by not paying her the agreed upon amounts, the respondent was the party in breach of the Minutes of Settlement. She also attempted to argue that Facebook is private and that there was no evidence she was referring to this particular settlement in her post (although she did not put forward any alternate explanation regarding what her Facebook posting was referring to). She also filed an Application for Contravention of Settlement, claiming $5,000 for pain and suffering as a result of the delay in receiving the settlement amounts.

Human Rights Tribunal Decision

The Tribunal found that Ms. Tremblay's Facebook post was in breach of the confidentiality obligations contained in the Minutes of Settlement. The Tribunal was not persuaded by Ms. Tremblay's argument that she may have been referring to some other settlement and found, not surprisingly, that Facebook posts are in fact public.

In deciding on the appropriate remedy, the Tribunal noted that the extent and the content of the breach must be considered as well as the harm arising as a result of the breach. With respect to the extent of her breach, it was relevant that in this case Ms. Tremblay did not disclose the actual amount of the settlement; she only disclosed that she received some type of settlement. However, the Tribunal found that the effect of the breach may have been significant, given the small community where the employer's business is located.

As the Tribunal had never previously found a breach of confidentiality of a settlement, the Tribunal relied on a Grievance Settlement Board decision and a labour arbitration decision, both of which were decided in similar circumstances. In both decisions, the amount awarded for the breach of confidentiality was $1,000. Apparently based on those decisions, the Tribunal reduced Ms. Tremblay's original settlement by $1,000.

Notwithstanding that the respondent in this case was successful in arguing that the confidentiality clause had been breached, as a result of the employer's refusal to pay the settlement amounts within the agreed-upon timeframe, the employer was ordered to pay pre-judgment interest equal to 1.3% on the amount owing.

Our Views

The Tribunal's decision in this case is significant because, as mentioned above, a breach of a confidentiality clause contained in a settlement has never before been found by the Tribunal.  Employers now have some authority for challenging employees if they fail to keep their settlement confidential.  However, this case also demonstrates that the appropriate recourse in response to a breach of Minutes of Settlement is not to unilaterally withhold settlement monies, certainly not the entirety of the settlement. As the employer learned in this case, a breach of a term of the Minutes of Settlement does not necessarily render the settlement null and void and the appropriate course of action is to file an Application for Contravention of Settlement and leave it to the Tribunal to determine the appropriate remedy.

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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