The Hamilton Spectator

Loose lips about settlement expensive

- ED CANNING ED CANNING PRACTISES LABOUR AND EMPLOYMENT LAW WITH ROSS & MCBRIDE LLP, IN HAMILTON, REPRESENTI­NG BOTH EMPLOYERS AND EMPLOYEES. HE IS A FREELANCE CONTRIBUTI­NG COLUMNIST FOR THE SPEC.

In June 2019, Kelly reached a settlement with her former employer over a sexual discrimina­tion allegation. She had filed a complaint with the Ontario Human Rights Tribunal and before that complaint and the employer’s response became public, it was resolved.

In the settlement, Kelly received money. We’re not told in the decision we have what the particular­s of the complaint were or how much money she got.

What we do know is that the minutes of settlement included a confidenti­ality clause and a mutual nondispara­gement provision. A confidenti­ality term is almost always in settlement documents for such cases, and Kelly’s said that if anyone asked about her complaint, all she would say was “all matters have been resolved.”

A mutual non-disparagem­ent provision indicates that both parties will not say derogatory things about each other orally, in writing or in electronic communicat­ions.

As per usual, Kelly’s agreement indicated that if she breached this provision, she would have to pay back the money she got for the settlement.

Soon after Kelly’s settlement was achieved, she changed her LinkedIn profile. It had previously said that she had filed a sexual discrimina­tion case against her former employer and an employee. Now it said “To all those inquiring, I have come to a resolution in my Human Rights Complaint against (she named the corporatio­n) and (she named the individual) for sex discrimina­tion.” The employer did not discover this online statement until 15 months after the settlement. They gave her a second chance. They emailed her and delivered a personal letter requesting that she remove the LinkedIn post. Kelly ignored them.

The employer applied to the Ontario

Human Rights Tribunal to order Kelly to return the money she got for the settlement as a result of her alleged breach of the confidenti­ality and non-disparagem­ent provisions of the settlement. Kelly ended up having to pay the money back. The parties had clearly come to an agreement that all she was able to say was “all matters have been resolved.” Kelly not only named the company and the individual involved in the complaint but also mentioned that it was a sex discrimina­tion case.

It also violated the non-disparagem­ent provision. Naming the parties involved and the nature of the unproven complaint damaged the reputation of the company and the individual named. The whole point of the non-disparagem­ent clause was to avoid that possibilit­y.

Kelly tried to argue that she wrote this post to try to explain to any interested employer the gap in her employment history. The argument made no sense. Naming the parties and the nature of the complaint did not further her claimed objective.

Kelly even had to pay interest on the money from the date the employer sent the letter asking her to delete the post.

The Ontario Human Rights Tribunal is swamped. Being able to settle a case through mediation is paramount. If that did not happen on a regular basis there is no way all the cases could be heard. It is not surprising that the adjudicato­r in this case came down hard on Kelly. If the adjudicato­r failed to do so employers would lose a major motivation for settling before cases become public. Whether allegation­s are true or not, a public complaint hearing can be damaging to an employer. There is not a lot of point in settling early in the process if damage to the company reputation is inevitable even if they pay out.

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