It is common practice when settling a human rights complaint or
a wrongful dismissal claim to include a mutual confidentiality
obligation. What can an employer do if the employee fails to
honour it? What if they blab about the settlement to their
co-workers? A recent decision of the Human Rights Tribunal of
Tremblay vs. 1168531 Ontario Inc. and Amy Lalonde] addressed
this issue head on. The decision could have broad application
to settlements of other employment cases, in other provinces and
before other tribunals and courts.
WHAT HAPPENED HERE
Trish-Ann Tremblay filed a human rights complaint against her
employer, a fast food franchise in Cornwall, Ontario. She and
her boss went to a mediation convened by the Human Rights
Tribunal. They signed a mediation agreement. In it, they
agreed that the mediation was a confidential process. When
they settled Tremblay's complaint, they expressly agreed
"to maintain confidentiality of the terms of these Minutes of
Settlement, and ... not discuss or disclose the terms... with
anyone other than immediate family..."
It turned out that Tremblay had been posting messages about the
mediation on her Facebook account while it was going on. And
immediately after, she posted, "Well court is done didn't
get what I wanted but I still walked away with some..."
About 4 hours later she again posted, "Well my mother always
said something is better than nothing..."
Tremblay's boss then refused to pay any of the
settlement. He said he wanted the Tribunal to sort matters
out. He argued that Tremblay's breach of confidentiality
made the agreement void.
WHAT THE TRIBUNAL RULED
The Tribunal considered what it should do about both
Tremblay's violation of the settlement and the
employer's failure to pay. Unlike some other tribunals, it
has the express authority under Ontario's Human Rights
Code to remedy these situations. It can make "any
order that it considers appropriate to remedy the
The Tribunal said that, "the driving consideration is
remedying harm" that results from failing to honour a deal.
This discredits the system. It generates disincentives to
negotiate settlements. Awarding monetary compensation for violation
of a settlement can help reflect both the private and public
importance of complying with them.
The decision first looked at whether the Tribunal should provide
a monetary penalty against the employer for failing to pay the
settlement. It found that it was reasonable for the employer
to leave it for the Tribunal to sort out the
matter. While in other human rights cases employers have been
tagged with monetary penalties for failing to pay up, the Tribunal
refused to make such an order here. But the employer did have
to pay interest on the amount it should have paid.
The Tribunal then looked at how to remedy Tremblay's breach
of confidentiality. This was the first time the Tribunal had
to decide this issue. It noted that the confidentiality clause was
important to the employer, because they had denied liability and
they were in a small town. The employer did not want
others filing similar claims. The Tribunal noted that it is
hard to remedy a breach of confidentiality, because once breached,
the secret is out.
In the result, the Tribunal decided to reduce the amount payable
to Tremblay by $1,000. Since the original settlement amount
was not disclosed, we don't know how big a portion this
TAKE AWAY POINTS
This case confirms that employees can be penalized financially
for violating a confidentiality clause in a settlement with their
employer. Violations can include posting about it on social
media. However, employers must be careful about using such a
violation as a reason not to honour the settlement. The entire
agreement does not automatically become void. An employer
could also be penalized for failure to pay the
While the Human Rights Tribunal had clear statutory authority to
remedy the breach here, the same result could happen where a court
or a tribunal is given authority in the settlement agreement to
deal with any failure to honour it. In other cases, such
authority may be implied.
This still leaves open the question of what the appropriate
remedy should be for breaching a confidentiality
agreement. How much is it worth? What is the damage to
This case would seem to support your ability to write into your
settlement agreements an amount that constitutes the parties'
agreement on what the damages are for breach of
confidentiality. This may in fact be the best way to avoid or
to remedy such a violation.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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