Last year we reported on an arbitrator’s decision to order former Globe and Mail writer Jan Wong to repay monies paid to her under the terms of a settlement with the newspaper over her dismissal, due to her breach of her confidentiality undertaking: see The Globe to Jan Wong: “Eat My Lunch”. The arbitrator ordered the repayment after Wong had the chutzpa to publish a book discussing her legal dispute with the Globe in which she disclosed that she had been “paid a pile of money to go away” and that “a big, fat check had landed” in her account.

On November 3, 2014, Wong’s application for judicial review of that decision was dismissed by the Ontario Divisional Court, reported at 2014 ONSC 6372. What is interesting about the judicial review was Wong’s decision to go it alone and take on both the Globe and her Union, the latter whose conduct was alleged to be “reprehensible” in not adequately representing her interests at arbitration. Not surprisingly, the Globe and the Union challenged Wong’s standing to apply for judicial review on her own accord, given that they are the parties to the collective agreement under which the original grievance arose. The court found that Wong was unable to establish standing within the narrow exceptions to the general rule that only the parties to the collective agreement have standing. In short, it found that the Union’s representation was not so deficient as to give her the right to pursue the claim alone.

The issue of standing aside, the court found that Wong was unable to demonstrate that the arbitrator’s decision was unreasonable on the issues of whether a breach of the settlement had in fact occurred or that there was a reasonable apprehension of bias on the part of the arbitrator. On the appropriateness of the remedy, being the repayment of $209,912 representing the two years’ severance she had been paid, the court found that the provision in the settlement agreement requiring repayment of the monies was reasonably classified by the arbitrator as a forfeiture provision that was not unconscionable, and not an unenforceable penalty.

Wong sought to have the Union pay her costs of the judicial review. Not only was the court unprepared to make that order, Wong was in fact directed to pay $15,000 of costs to the Union as well as another $15,000 to the Globe.

It will be interesting to see if Wong seeks leave to appeal to the Ontario Court of Appeal. Given Wong’s course of action to date, that would not be at all surprising.

Take Aways

This decision reinforces the potential consequences of a breach of a well drafted confidentiality undertaking, the narrow scope for a unionized employee to assume carriage of her own dispute with an employer and the challenge facing any party who hopes to  establish that an arbitrator’s decision is outside the bounds of reasonableness.