There is a confidentiality clause included in virtually every settlement agreement settling a dispute between employers and employees. The confidentiality provisions typically deal with two aspects of confidentiality: first, a general reminder to the former employee that he or she had access to confidential information while employed and is obliged to maintain that confidentiality after employment; and, secondly, a clause which specifically obliges both employer and employee to keep the terms of the settlement agreement itself confidential.

There are usually exceptions spelled out for disclosure to professional advisors such as lawyers and accountants, as well as immediate family. There are not many examples of cases out there where the courts have had to weigh in on one party or the other having breached this agreement and revealed the details of the settlement.

A recent example of such a reported decision is found in the Ontario Human Rights Tribunal (“OHRT”) decision, Tremblay v. 1168531 Ontario Inc. In this decision, the OHRT was faced with an application by the corporate and personal respondents that Ms. Tremblay had breached the settlement agreement reached between them by disclosing details of the settlement, contrary to the confidentiality provision of the agreement. Ms. Tremblay, in turn, filed an application alleging that the respondents had refused to pay the amount owing pursuant to the settlement agreement.

In the original case initiated by Ms. Tremblay against both her former employer and Ms. Lalonde, the manager of the company’s fast food franchise, the parties were able to agree to a settlement. One of the provisions of that agreement stated:

    The Applicant and Respondents agree to maintain confidentiality of the terms of these Minutes of Settlement, and shall not discuss or disclose the terms of the settlement with anyone other than immediate family, or legal or financial advisors, or as required by law.

On the next day following mediation, the company became aware that during the course of the mediation itself, Tremblay had actually posted the following message on Facebook:

    Sitting in court now and _________ [blank in original posting] is feeding them a bunch of bull shit. I don’t care but I’m not leaving here without any money ….lol.

Then, within minutes after signing the settlement agreement, Tremblay posted the following message on Facebook:

    Well court is done didn’t get what I wanted but I still walked away with some …

Approximately four hours later Tremblay then posted:

    Well my mother always said something is better than nothing … Thank you so much Saphir for coming today …

Although Ms. Tremblay did not deny that she wrote the postings, she submitted that she did not refer to the respondents by name and, further, that Facebook was private. She also submitted that there was no mention of the amount of the settlement.

The Tribunal found that the she had in fact breached the confidentiality provision of the settlement agreement. Although she did not disclose the amount of the settlement, by her comments she did reveal that there had been a monetary settlement. The fact that she did not disclose the amount, although not relevant to a determination of whether there was a breach, was a relevant factor to consider when the Tribunal assessed the consequences for her breach.

The Tribunal quoted with approval from another OHRT decision, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, at paragraph 51:

    Respect for terms of settlement is not only a legally binding, contractual obligation, it also promotes essential Code values. The contravention of settlement can undermine the administration of justice by discrediting the human rights system and generating wrong disincentives to negotiation. The uncertainty created by contravention of settlement potentially undermines the substantive and procedural provisions of the Code. An award of monetary compensation can help reflect both the private and public importance of complying with settlement terms.

The Tribunal was also required to deal with the allegation that the respondents had breached the agreement by refusing to pay the settlement money to Tremblay. The Tribunal dealt with both allegations of breach by reducing the monetary amount owing to Tremblay by $1,000.00, and ordering the company to pay that reduced amount together with interest at the rate of 1.3% per annum from the date Ms. Tremblay filed her original application to the date of the decision.

This decision is helpful in providing a reminder that confidentiality agreements are legally binding and there are consequences to breaching them. And if you have signed a confidentiality clause regarding specific information – don’t then go and share that information on Facebook. It’s not ‘private.’

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Norman Grosman tackles your employment law dilemmas regularly on Workopolis. More information about him and his legal services can be found on his website grosman.com