The short answer to this
question is, in my view, yes.
 Despite the failure to
agree on a more formal document, the terms of the agreement can, in
my view, be distilled from the email traffic between the parties
which commenced on 25 December 2013 and culminated with Ms.
Farnham's 'we have an agreement' email of 9 January
As is always the case, we encourage you to read the
full-text of the case for a broader understanding of what happened
by clicking on the case-link above.
Ms. Farnham was the General Manager and Executive Vice
President, Pharmacy Services until October 28, 2013. That
morning, she deleted over 13,000 emails from her email inbox and
more than 35,000 emails from her sent messages. She also
printed a large number of documents and took them with her when she
left the office. Between October 26 and October 28, she
remotely accessed the employer's server a number of times and
forwarded more than 500 emails (a large number with attachments) to
her home email account.
The employer brought an action for damages and declaratory
relief saying Ms. Farnham:
breached her employment agreement;
breached fiduciary duties owed to the employer; and
engaged in a breach of confidence.
The employer also sought an interim and interlocutory injunction
to protect confidential information it alleged Ms. Farnham had
The parties attempted to settle the dispute by email. On
January 9, 2014, Ms. Farnham said in an email "we have an
agreement". Subsequently, the parties' lawyers
became involved and attempted to reduce the email agreement to a
settlement agreement. This resulted in the parties
disagreeing as to what was agreed upon in the email agreement and
the court's quote at the outset of this blog.
What happened when the court became involved?
The court found that the only contentious issue was the
"extent of the work to be done by the IT professionals"
in removing the data from Ms. Farnham's laptop and iPad:
 The only serious issue in
contention is the extent of the work to be done by the IT
professionals. The parties had agreed that Ms. Farnham would
not retain confidential information. They had agreed that the
confidential information that she had held should be destroyed.
They had agreed that this should be done by Remedy's
preferred consultant and that Ms. Farnham should pay for it.
The only disagreement appears to be whether the work to be
done by the IT consultant extended to a review by the consultant of
what Ms. Farnham had done with the confidential information which
she had received.
On review of the email correspondence, Justice Mew concluded
that there had been a compromise – Ms. Farnham had ultimately
agreed to the employer's preferred IT consultant overseeing the
work to be done. In his opinion, the disagreement over the
terms of the email settlement did not result in a repudiation of
What this means to employers
This was not a wrongful dismissal action, but it was resolution
of a disagreement over the exit of a high level employee who left
with what the employer believed was confidential information she
was not entitled to have in her possession. The decision acts
as a reminder to employers to be mindful of confidential
information in employment agreements and settlement agreements and,
if necessary, to trace the departure of confidential information at
the same time that a high level employee departs to minimize risk
of dissemination of that information.
The leak of confidential information can harm an organization
for obvious reasons. In this case, the parties were able to
reach an agreement via email for an IT consultant to clean and
purge information from the former employee's personal
equipment. The detail that was unclear and led to the court
room, was "who" the IT consultant would be.
Nonetheless, the agreement was very important to both parties
understanding that the information would be wiped from the former
employee's equipment albeit that it took a good month or so for
that understanding to form "agreement" status and then
another six months for the court to sort out what the parties had
(b) Have a
If you don't already have a policy dealing with departing
employees and information that they may store on personal devices,
now is the time to revisit and re-write your confidentiality and
privacy policies so that issue is covered. Ideally, personal
device storage should be prohibited, but if it's something your
organization can live with, spell out the responsibility of the
employee during and post-employment. As we're always
emphasizing, communicate and train on the policy and have an even
hand when it comes to discipline.
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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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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