The Ontario Superior Court affirmed that a former journalist of the Globe and Mail had breached a key provision of confidentiality in the settlement agreement.
In June 2008, the Globe and Mail dismissed Jan Wong, a journalist, following her lengthy absence from work due to depression. Subsequently, the Communications, Energy and Paperworkers Union of Canada, Local 87-M filed grievances on her behalf challenging her termination and the Globe’s denial of sick leave pay.
The grievance proceeded to mediation and then to Arbitration on September 24, 2008 before Louisa Davie. The Parties reached a memorandum of agreement. The settlement stipulated, among other things:
- The parties agree not to disclose the terms of this settlement to anyone other than their legal or financial advisors, Manulife and the grievor’s immediate family
- Should the grievor breach this obligation, Arbitrator Davie shall remain to determine if there is a breach.
- If she so finds a breach, the grievor will have an obligation to pay back to her employer all the payments paid to her.
Under the settlement, Wong received a lump sum payment representing the amount she would have been entitled to for sick leave, and a second lump sum payment equivalent to two years’ pay.
Following the settlement, in May 2012, Wong published a book about her experience with workplace depression, titled “Out of the Blue.” The Globe then requested a hearing before Arbitrator Davie, as they cited 23 references in Wong’s book referring to the settlement, thereby violating the term mentioned above. The Globe sought repayment of the settlement funds as a result of her breach of the confidentiality clause.
In July 2013, Arbitrator Davie ruled that Ms. Wong had breached the non-disclosure provision (mentioned above), despite undertaking not to disclose the terms of the settlement. In her book, Wong revealed that she had “been paid a pile of money to go away” and referenced her “big fat check” in her account. In response, Wong argued that she had honestly believed she was only prohibited from disclosing the precise dollar amounts of her settlement. She argued repaying back the money would be unconscionable and punitive.
Arbitrator Davie ordered Wong to pay back the lump sum payment equivalent to two years’ salary in the amount of $209,912.00. Wong sought judicial review of the ruling.
On behalf the Ontario Superior Court, Justice Ian Nordheimer dismissed Wong’s application, and stated that she could not “point to any true procedural unfairness in the manner.” Furthermore, in regards to the term about repayment, it should not be viewed as a penalty which requires proof of damages; rather, it is an enforcement mechanism to ensure the grievor lives up to her end of the deal.
Nordheimer concluded that there was no high degree of unfairness, and that the Arbitrator’s decision was not unreasonable. He also rejected Wong’s argument that she did not breach the agreement because she honestly believed she was only prohibiting from disclosing the exact dollar amount.