Last year we reported on an arbitrator's decision to order
former Globe and Mail writer Jan Wong to repay monies paid to her
under the terms of a settlement with the newspaper over her
dismissal, due to her breach of her confidentiality undertaking:
The Globe to Jan Wong: "Eat My Lunch". The arbitrator
ordered the repayment after Wong had the chutzpa to publish a book
discussing her legal dispute with the Globe in which she disclosed
that she had been "paid a pile of money to go away" and
that "a big, fat check had landed" in her account.
On November 3, 2014, Wong's application for judicial review
of that decision was dismissed by the Ontario Divisional Court,
reported at 2014 ONSC 6372. What is interesting about the
judicial review was Wong's decision to go it alone and take on
both the Globe and her Union, the latter whose conduct was alleged
to be "reprehensible" in not adequately representing her
interests at arbitration. Not surprisingly, the Globe and the Union
challenged Wong's standing to apply for judicial review on her
own accord, given that they are the parties to the collective
agreement under which the original grievance arose. The court found
that Wong was unable to establish standing within the narrow
exceptions to the general rule that only the parties to the
collective agreement have standing. In short, it found that the
Union's representation was not so deficient as to give her the
right to pursue the claim alone.
The issue of standing aside, the court found that Wong was
unable to demonstrate that the arbitrator's decision was
unreasonable on the issues of whether a breach of the settlement
had in fact occurred or that there was a reasonable apprehension of
bias on the part of the arbitrator. On the appropriateness of the
remedy, being the repayment of $209,912 representing the two
years' severance she had been paid, the court found that the
provision in the settlement agreement requiring repayment of the
monies was reasonably classified by the arbitrator as a forfeiture
provision that was not unconscionable, and not an unenforceable
Wong sought to have the Union pay her costs of the judicial
review. Not only was the court unprepared to make that order, Wong
was in fact directed to pay $15,000 of costs to the Union as well
as another $15,000 to the Globe.
It will be interesting to see if Wong seeks leave to appeal to
the Ontario Court of Appeal. Given Wong's course of action to
date, that would not be at all surprising.
This decision reinforces the potential consequences of a breach
of a well drafted confidentiality undertaking, the narrow scope for
a unionized employee to assume carriage of her own dispute with an
employer and the challenge facing any party who hopes to establish
that an arbitrator's decision is outside the bounds of
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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