You file a human rights complaint against your employer, and the complaint ends up getting settled. Perhaps your employer gives you some money, in exchange for the complaint being dropped. This happens all the time. Often, the employer insists on some sort of non-disclosure term in the settlement agreement. The purpose of this clause is to stop the employee from running around telling everyone what the settlement was. The employer usually will not admit any wrongdoing, and doesn’t want the employee telling people that the employer gave her money, since that may suggest to people that the employer was admitting to guilt.
Human Rights codes usually include a provision for enforcement of these settlements. In Ontario, is is section 45.9, which gives the Tribunal power to consider a complaint that a party has violated a settlement. If the complaint is that a party violated the non-disclosure part of the settlement, then the issue will be what the non-disclosure covered, and what the person said. A very strong non-disclosure clause will prohibit the employee from disclosing the fact of a settlement or the content of the settlement. In other words, the employee can’t talk about the settlement at all. But sometimes the non-disclosure term is not so clear.
That was the case in a decision released last week by the Ontario HR Tribunal involving a Canadian Tire store. The non-disclosure clause there said that the parties will maintain “strict confidentiality of the terms of these Minutes of Settlement”, and that the employee “shall not discuss or disclose the terms of this settlement with anyone other than” her spouse. Afterwards, the employee told another Canadian Tire employee that she had file a complaint against the employer and that the complaint had been settled. Canadian Tire brought a complaints under Section 45.9 alleging that the employee had violated the settlement agreement by disclosing that a settlement had been breached, and that also that by disclosing the existence of a settlement, the employee has “disparaged” the employer.
The Tribunal said nice try, employer, but the settlement very clearly says that the employee can’t disclose the “terms” of the settlement. Disclosing that there was a settlement is not the same thing as disclosing the terms of a settlement:
The language of article 8 sets out an obligation to maintain the confidentiality of the “terms” of the Minutes of Settlement. The agreement did not prohibit a party from disclosing the fact that there was a settlement. Accordingly, there was no breach if the applicant disclosed merely that there was a settlement… I note that it is open to parties to negotiate into settlements exactly what a party should say if asked a question about the Tribunal Application. Parties may also negotiate language that prohibits either party from talking about the fact of the claim or the settlement.
The employer’s complaint was dismissed. The Tribunal basically told the employer that if they wanted a gag on telling people there was a settlement, then they should have included that in the settlement.
By the way, what remedy do you think the Tribunal would have ordered had it found that the employee did violate the settlement agreement? Section 45.9(8) gives the Tribunal power to “make any order that it considers appropriate to remedy the circumstances” when a breach of a settlement is found. Should the employee be required to repay any money that Canadian Tire might have paid her in the settlement?