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November 12, 2012

Facebook and Confidentiality

Authors Malcolm MacKillop and Hendrik Nieuwland

A recent decision of the Ontario Human Rights Tribunal has found that an employee’s Facebook posts breached a confidentiality provision of a settlement agreement. In Tremblay v. 1168531 Ontario Inc., the employee filed an application for contravention of settlement pursuant to s. 45.9(3) of the Human Rights Code, alleging that the employer breached a settlement entered into by the parties by refusing to pay the amount owing under the settlement. In response, the employer filed an application for contravention of settlement alleging that the employee breached the confidentiality provision of the settlement agreement.

The employer alleged that the employee breached the confidentiality agreement of the settlement by posting several comments on Facebook during and after the settlement. The Facebook comments at issue were as follows:

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

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

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

The employer discovered the employee’s Facebook postings shortly after the conclusion of the settlement. After reading the comments the employer decided not to pay the amount specified in the Minutes of Settlement.

The employee did not deny that she wrote the postings. Instead, she submitted that there was no proof that she was talking about the employer, as she did not mention them by name. The employee also submitted that Facebook was private and that there was no mention of the amount of the settlement in her Facebook posts.

The employer testified that in a small community it was important that settlements remain confidential. The employer’s concern related to the reputation of the business and that others might regard the filing of an application or suing the company as “easy”.

The Panel determined that the employee had breached the confidentiality provision of the settlement agreement. The Panel found that it was clear from the date of the postings and the comments made that the employee was referring to the mediation. In addition, the Panel found that it was clear that the employee had revealed that she had received a monetary settlement. The fact that the employee did not disclose the amount of the settlement was not relevant to the determination of whether there was a breach. However, the Panel found that the extent and content of the breach of confidentiality was a relevant factor to consider in assessing the remedy. The Panel found that Facebook is not private and rather is of a public nature, especially in a small community. The Panel further held that an assertion that Facebook is private was not supported by the ease in which the employer discovered the postings.

In determining the remedy for the breach of confidentiality, the Panel noted that it is impossible to reinstate confidentiality once breached and that confidentiality clauses should have “real meaning” as parties rely on such clauses in deciding whether or not to settle. In determining the appropriate remedy the Panel considered the fact that the employee did not disclose the actual amount of the monetary settlement. With this in mind, the Panel reduced the amount owing to the employee under the settlement by $1,000.00.

With respect to the employee’s claim that the employer breached the settlement by failing to pay the amount owed, the Panel determined that no remedy in damages was warranted. The Panel found that the failure to pay was a direct result of the breach and that a reaction was understandable. Nevertheless, the Panel found it appropriate for the employer to pay interest on the amount owing (less the offset) at the pre-judgement interest rate of 1.3% from the date of the breach to the date of the Panel’s decision.

In light of this decision, employers should keep in mind the following:

  • Facebook is unlikely to be considered private, by courts or tribunals, with regards to any postings that deal with settlement discussion or settlement agreements.
  • When an employer is faced with a breach of any provision of a settlement agreement the employer should not attempt to apply a self-help remedy (electing not to pay the amount owed). Instead, the employer should execute their obligations under the settlement agreement and apply to the appropriate authority for their remedy. Such action will avoid an order requiring the employer to pay interest on the amount owed.
  • A breach of a confidentiality provision in a settlement agreement is a significant breach of the agreement. Confidentiality can be important to all parties in resolving disputes. Courts and tribunals alike have held that if confidentiality provisions are routinely ignored there may be a disincentive for settlement to occur.With this principle in mind, courts and tribunals strictly enforce confidentiality provisions even when the breach is trivial. Employers and employees alike are susceptible to potential claims for breaches of confidentiality. Therefore, it is prudent that employers ensure that settlement discussions and settlement agreements remain confidential by ensuring that those involved in the settlement discussions are aware of their duty of confidentiality and the consequences of a breach of that duty.
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