Facebook Posts Breached Confidentiality Agreement

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The decision of the Human Rights Tribunal of Ontario (“HRTO”) in Tremblay v. 1168531 Ontario Inc. serves as yet another reminder that Facebook postings can have significant consequences. It is also the first decision before the HRTO where a breach of confidentiality has been found.

The Applicant, Trish-Ann Tremblay, was employed by a fast food franchise in Cornwall, Ontario. She and her former employer were able to reach a settlement following a mediation, and signed Minutes of Settlement which included the following clause:

2. 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.

The following day, the Company learned of a series of Facebook postings by Ms. Tremblay during and immediately following the mediation:

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.

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 these postings, the Company refused to pay the settlement funds agreed to.

Both parties then filed Applications for Contravention of Settlement with the HRTO. The Company argued that Ms. Tremblay’s breach of the confidentiality rendered the agreement null and void, and it should not have to pay Ms. Tremblay anything as a result. Ms. Tremblay did not deny that she wrote the postings, but argued there was no proof she was speaking about the Company as she did not mention them by name. She also argued that Facebook was private and there was no mention of the amount of the settlement.

In determining the appropriate remedy, the HRTO member considered the fact that the exact settlement figure was not disclosed. The HRTO member also considered the public nature of Facebook, particularly in a small community such as Cornwall, and stated that Ms. Tremblay’s assertion that Facebook was “private” was not supported by the ease with which the Company discovered the postings.

Ultimately, the HRTO member concluded that both parties had breached the Minutes of Settlement and ordered that the Company pay the settlement amount owing plus interest, but deducted $1,000 to remedy Ms. Tremblay’s breach of confidentiality. The decision states “A breach of the confidentiality provision in a settlement is a significant breach of the agreement. Confidentiality can be important to all parties in resolving disputes. If these provisions are routinely ignored by applicants there may be a disincentive for respondents to settle human rights applications”.

This decision clearly demonstrates the need for parties engaged in any form of mediation or settlement negotiations to ensure that any confidentiality clauses in Minutes of Settlement to protect confidentiality are carefully reviewed. Parties may want to consider whether to include or avoid statements about the consequences of the breach of a confidentiality clause to avoid the uncertainty that arose in this case about the consequence of a breach. It also serves as a reminder that the importance of respecting confidentiality clauses should be emphasized to parties who agree to Minutes of Settlement including such a clause.