Our regular readers will recall a previous blog about the case involving Jan Wong, a former Globe and Mail columnist, who violated the confidentiality clause in a settlement agreement that was intended to finally resolve her unjust dismissal grievance.  Wong disclosed information about the settlement in her published book, Out of the Blue.  The arbitrator found that Wong’s disclosure breached a specific provision of the settlement agreement, and ordered her to repay $209,912 to her former employer.

In an attempt to reverse the arbitrator’s decision, Wong applied to Divisional Court for judicial review.  To put it mildly, she did not succeed.  Moreover, she was ordered to pay $30,000 in legal costs to her former employer and union.

Two aspects of this decision are of interest to employers.  First,  Justice Nordheimer found that Wong did not have standing to bring an application for judicial review.  Because the primary parties to a grievance are the employer and the union, the grievor is not normally permitted to bring an application for judicial review.  Justice Nordheimer acknowledged that, where the Union’s representation is sufficiently deficient, a grievor may bring an application for judicial review on her own behalf, but found that Ms. Wong had failed to establish that her Union’s representation had been deficient, as she claimed.

Second, in this decision, the Divisional Court confirms that confidentiality clauses in settlement agreements can be strongly enforced, encouraging grievors to think very carefully about disclosing the terms of a settlement agreement that contains a confidentiality clause.

This decision encourages settlements, confirming that parties are free to negotiate terms that are beneficial to their interests, particularly confidentiality clauses.   At the same time, this decision will discourage grievors from applying for judicial review without clear evidence that the union’s representation was deficient.

Many thanks to Alex Lemoine for his assistance in drafting this blog.