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Non-disclosure clauses in human rights settlements: Understand them before you sign on the dotted line

signatureAt the Human Rights Tribunal of Ontario (the “Tribunal”), a settlement is sometimes reached without having to resort to a hearing. If so, parties will sign a “Minutes of Settlement” agreement, which will almost always contain a non-disclosure clause outlining what can be said, if anything, in regard to the settlement. In the event that a party breaches the non-disclosure agreement, they may find themselves returning to the Tribunal sooner than expected.

This was the case in two recent Tribunal decisions regarding breaches of the non-disclosure agreement. As you read, ask yourself this question: Was there a breach?

Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939

Ms. Tremblay had filed an application in the Human Rights Tribunal and had agreed to mediation. Prior to the mediation, Ms. Tremblay signed an agreement which included the following clause:

We understand and agree that this is a confidential process….all statements made during the mediation are without prejudice and cannot be used in evidence before the HRTO or in any other civil proceeding.”

The parties eventually reached a settlement, and signed a Minutes of Settlement that included the following clause:

The Applicant and the 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.”

In spite of having signed the first agreement, during the mediation Ms. Tremblay posted the following message on her Facebook page:

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 my money…lol.”

After the Minutes of Settlement were signed, Ms. Tremblay posted:

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

A short time later Ms. Tremblay then posted:

Well my mother always said something is better than nothing…”

When the opposing party found out about the posts on Ms. Tremblay’s Facebook page, they filed an application alleging a breach of the non-disclosure agreement, and appeared in the Tribunal with printouts from Ms. Tremblay’s Facebook page.

Ms. Tremblay put forth three defenses to her conduct. Firstly, that her Facebook account is considered private. Secondly, she submitted that there was no proof that she was talking about the Respondents as she did not mention them by name. Lastly, she also submitted that there was no mention of the amount of the settlement.

The Tribunal saw things differently. The Tribunal found that Ms. Tremblay had in fact breached the non-disclosure terms when she posted that she was not leaving “without my money” and then later posted that she had “walked away with some”. The Tribunal stated: “It was clear that she had received a monetary settlement, which was considered a breach of the non-disclosure.”

The breach reduced Ms. Tremblay’s settlement by $1000.00

4137566 Canada v. Clements, 2011 HRTO 106

Ms. Debbie Clements had filed an application with the Human Rights Tribunal against her employer, Canadian Tire, but had reached a settlement during mediation. She was required to sign a non-disclosure agreement. A short time later, during a casual conversation with an employee at the store, Ms. Clements disclosed that she had reached a settlement with Canadian Tire, but did not expand upon the particulars of the settlement.

Soon after, Ms. Clements found herself in the Tribunal, defending the allegation that by telling the employee she had reached a settlement, she had in fact breached the non-disclosure agreement.

The Tribunal had a different opinion from that of Canadian Tire who brought an application against Ms. Clements. The Tribunal stated, “There are many types of settlements reached, sometimes involving creative and unique solutions. It is not uncommon for applications to be settled without the payment of money or with nominal payments.” In other words, the fact that there was a settlement does not necessary imply a monetary award.

Ms. Clements was found not to have breached the non-disclosure agreement.

Breaches of non-disclosure agreements, though uncommon at the Tribunal, nonetheless can be costly. This just goes to further underscore the importance of all parties understanding the terms and conditions of a non-disclosure agreement and abiding by them. If in doubt, err on the side of caution.

Further reading on the topic includes a case coming from the United States where a father loss an $80,000 anti-discrimination settlement due to daughter’s Facebook post.

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Kevin Sambrano, Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more
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