A recent decision from the Human Rights Tribunal of Ontario (“HRTO”), Tremblay v. 1168531 Ontario Inc., highlights the importance of confidentiality in the settlement process.
Trish-Ann Tremblay filed a human rights application against her former employer, a fast food restaurant, alleging discrimination in employment. Ms. Tremblay and her employer participated in a mediation process, provided by the HRTO, and agreed that the mediation process and the terms of any settlement reached would remain strictly confidential. The parties reached a deal.
The day after the settlement, however, the employer discovered that Ms. Tremblay had posted comments on Facebook about the mediation, both during and after the mediation session. During the mediation, Ms. Tremblay wrote on Facebook:
“Sitting in court now and… is feeding them a bunch of b.S. I don’t care but I’m not leaving here without my money…lol.”
A few hours later, Ms. Tremblay wrote:
“Well court is done didn’t get what I wanted but I still walked away with some…”
“Well my mother always said something is better than nothing…thank you so much Saphir for coming today…”
Upon discovering the Facebook posts, the employer refused to pay the settlement funds on the grounds that Ms. Tremblay had breached the confidentiality provision of the settlement agreement. Both sides went back before the HRTO.
Ms. Tremblay complained that the employer had failed to pay, in contravention of the agreement. She also argued that her Facebook settings were “private” and there was no breach of confidentiality. For its part, the employer argued that Ms. Tremblay had violated the confidentiality provision in the settlement agreement and was not required to pay anything to her.
In its decision, the HRTO concluded that Ms. Tremblay’s Facebook postings violated the confidentiality provision of the settlement agreement. Even though Ms. Tremblay had not disclosed the amount of the settlement, she had breached the confidentiality provision by disclosing on Facebook that a financial settlement was reached. The HRTO rejected her argument that her Facebook was private, noting the ease with which her employer had accessed her Facebook information.
The HRTO upheld the settlement but deducted $1,000 from the settlement funds the employer was required to pay. The HRTO also ordered the employer to pay interest of 1.3% on the late settlement funds.
This case serves as an important reminder that litigants in human rights and other legal disputes should take confidentiality provisions seriously and should not discuss their legal cases on Facebook or other social media sites.