In August of 2013 CCP wrote
this article about Jan Wong, a long-time writer for the Globe
and Mail, who was ordered to repay the money she received in a
settlement with the Newspaper after she lost her job. In
short, the Memorandum of Agreement ("MOA") included a
well-crafted confidentiality clause in which the Newspaper, the
Union, and Jan Wong herself agreed that if Ms. Wong disclosed the
terms of settlement, she would have an obligation to pay the
settlement money back to the Newspaper. After signing off on
the MOA, Ms. Wong published a book called "Out of the
Blue" in which she made certain revelations about the
MOA. The Globe and Mail, of course, responded by asserting
that Ms. Wong had violated the MOA's confidentiality clause,
and a labour arbitrator ordered her to repay the money.
More recently, Ms. Wong took her
cause to Court in an effort to overturn the arbitrator's
decision. She claimed that the MOA included an "overly
punitive forfeiture provision" and it was unjust for her to
have to repay the settlement money. The result? Strike
two for Jan Wong.
The Ontario Superior Court recently
upheld the arbitrator's decision, holding that the parties
agreed in the MOA to include a valid "forfeiture
provision", defined as an agreement that "involves the
loss of something, often money, held as security for the
enforcement of an obligation." The Court held that the
Newspaper was willing to pay for confidentiality, and Ms. Wong
simply violated the bargain she made:
It is clear that the one thing that The Globe and Mail
wanted from this settlement was confidentiality. The Globe
and Mail was prepared to pay for that confidentiality. The
only other aspect of the MOA that benefitted The Globe and Mail was
the brief period of non-disparagement. And yet, in the end
result, The Globe and Mail did not get the one thing that it was
paying for – confidentiality. In those circumstances,
there is no inherent unfairness in a conclusion that the applicant
should have to repay the monies that she received, and that she
agreed to repay, if she breached the MOA.
This is an important decision in
the employment context. As explained in our previous blog on
this case, a well-crafted settlement can be a very useful tool for
resolving disputes in a discrete and expedient manner. The
Court's decision further confirms that confidentiality clauses
do have teeth behind them, and just might bite back at a party who
violates it. The lawyers at CCPartners have a wealth of experience in crafting
settlement documents to leave employers satisfied and certain of a
resolution that protects their interests.
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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