Publicly Discussing Results of Confidential Settlement

Utilizing of the media, including social media, is an essential aspect of any civil litigator’s strategic arsenal. The Model Code of Professional Conduct outlines in Rule 7.5 the circumstances where a lawyer can communicate information to the media, which includes obligations to the client, the profession, the courts, or the administration of justice.

These communications must still be in the best interest of the client, and conducted in a professional manner. They should also not communicate any information that has a “substantial likelihood of materially prejudicing a party’s right to a fair trial or hearing.”

Communications with the media should also be used sparingly. In the instances where I have used this tactic it has almost uniformly been where the party opposite is being entirely unreasonable, or (fortunately) more unusually, the conduct of counsel is particularly obstinate or unseemly. It’s use routinely in every circumstance would understandably undermine counsel’s ability to effectively negotiate with the other side, and has the potential to complicate proceedings unnecessarily.

The control that a lawyer has over the client in making public statements to the media, after the retainer is already terminated and the file is closed, is far more limited. Instructions about such statements, in particular where there is a confidentiality or non-disparagement clause in the settlement agreement, should be imparted to the client prior to the conclusion of the relationship.

The recent arbitration decision in Acadia University v Acadia University Faculty Association is instructive in this regard. The arbitration involved the termination of a tenured professor, reportedly because he “harassed and intimidated his colleagues and students, breached privacy and failed to teach the required course material.” The professor characterized himself as a champion for academic free speech, and opposed what he characterized as the university’s new mission of “committing to social justice.” The letter from the Vice-President Academic to the professor, with specific student names redacted, has been made available online by the media.

The termination of a tenured professor is of course a rather unusual decision. The very notion of tenure was developed to insulate academics from arbitrary or political dismissal due to the whims or preferences of administrators or major donors. The American Association of University Professors (AAUP) was instrumental in investigating and opposing instances of the dismissal of academics throughout the late 19th and early 20th c., largely focusing on aspects of procedural fairness and the implementation of uniformly implemented policies.

The AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure lays out some of this history, as well as the purpose for pushing for norms around tenure in academia,

Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It
carries with it duties correlative with rights.

The Statement on Principles of Academic Freedom and Tenure spells out what the procedure should be for dismissal for cause, including being provided all of the facts in advance, and an opportunity to respond. The 1970 Commentary to the Statement also points to the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, providing further recommendations. This 1958 statement appeared necessary because the 1940 Statement appeared to contain some ambiguities. The 1958 Statement also provides a broader context that distinguishes academia from other governing bodies,

Just as the board of control or other governing body is the legal and fiscal corporation of the college, the faculty is the academic entity. Historically, the academic corporation is the older. Faculties were formed in the Middle Ages, with managerial affairs either self-arranged or handled in course by the parent church. Modern college faculties, on the other hand, are part of a complex and extensive structure requiring legal incorporation, with stewards and managers specifically appointed to discharge certain functions.

Nonetheless, the faculty of a modern college constitutes an entity as real as that of the faculties of medieval times, in terms of collective purpose and function. A necessary precondition of a strong faculty is that it have first-hand concern with its own membership. This is properly reflected both in appointments to and in separations from the faculty body.

In this instance, the termination of the tenured professor was also prompted in part by first-hand concern by the faculty of their membership including this professor, and his impact on their work and environment.

Although the 1940 Statement establishes certain rights, the duties that correspond with it include the AAUP’s 1966 Statement on Professional Ethics, which was amended in 1987 and 2009. The current version emphasizes respect for students as individuals, and reasonable effort to foster honest academic conduct, and also makes reference to the obligations to other faculty members,

3. As colleagues, professors have obligations that derive from common membership in the community of scholars. Professors do not discriminate against or harass colleagues. They respect and defend the free inquiry of associates, even when it leads to findings and conclusions that differ from their own. Professors acknowledge academic debt and strive to be objective in their professional judgment of colleagues. Professors accept their share of faculty responsibilities for the governance of their institution.
[emphasis added]

Even principles of academic tenure do not justify or condone the type of speech, expression, or other activities that could be construed as discriminatory or harassing.

The university’s collective agreement allows under Article 13.02 for termination of employment by mutual agreement, and provides a comprehensive process for discipline for just cause, including dismissal, under Article 14.00. Specific provisions under Article 14.30 are laid out for dismissal for just and proper cause, and make reference to procedures for mental health or drug use (Article 14.09) and ensuring the safety of any members of the university community and its functioning (Article 14.09). The collective agreement also spells out a grievance procedure for dismissals.

This professor was terminated for cause on Aug. 31, 2018, with a case management meeting on Jan. 11, 2019. Although arbitration dates were scheduled, the parties engaged in a voluntary mediation on Apr. 1, 2019, where they voluntarily entered into a Minutes of Settlement. The university and the union were of course represented, and the professor was accompanied by his own independent counsel.

In this settlement the university agreed to pay the professor $50,000 as a retirement allowance, a rather small sum considering the professor’s annual salary of $112,527 and benefits. The university was apparently willing to provide a larger amount on the basis that the professor would be prevented from discussing any of the dispute publicly, but he refused these requirements on principle. Even the agreed-upon allowance maintained some conditions attached to it though.

Importantly, the Minutes resolved the grievance “without any admission of liability or culpability by any of the parties,” and “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice.” Given the very public nature of this dispute, the Minutes prudently went even further and stated,

If asked, the parties will indicate that the matters in dispute proceeded to mediation and were resolved, and they will confine their remarks to this statement. Stated somewhat differently, it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed.
[emphasis added]

Of course the self-professed champion for free speech soon after utilized his speech to discuss the settlement on Twitter, as follows:

Professor: “Vindicated former professor! Advocate for free speech and institutional transparency in universities.”

Follower on Twitter: “congrats Rick! Hope you got a nice sum monz.”

Professor: “All I will say is that I left with a big grin on my face.”

Although not stipulating any specific monetary sum, the professor’s tweet is suggestive that a sum of some amount was received. Yet another tweet followed soon after:

Professor: “Because I got the vindication that I was seeking. In other words, I have left the university on my term, as opposed to the administration’s or union’s terms. The NDA that I was required to sign by law is not for my protection.”

By referencing the confidentiality provisions with the Minutes, the professor had actually disclosed a component contained within those same Minutes. A conference call on May 1, 2019 led to a direction by the arbitrator that the professor was to immediately delete these tweets, and refrain from similar statements in the future.

The professor refused to abide by this direction, and instead provided further tweets about the dispute:

Professor: “University administrators are ruthless towards non-leftist profs who exercise their rights to academic freedom & dissent. They also have labour law on their side that allows them to fire tenured profs without cause and to weasel their way out of paying any kind of severance”

Professor: “You dismissed me for exercising my rights to academic freedom and dissent. Now you are withholding my severance pay….”

A severance pay is distinct from a retiring allowance, despite being treated as synonymous under Line 130 of personal income taxes. The Income Tax Act provides the following definition:

retiring allowance means an amount (other than a superannuation or pension benefit, an amount received as a consequence of the death of an employee or a benefit described in subparagraph 6(1)(a)(iv)) received

• (a) on or after retirement of a taxpayer from an office or employment in recognition of the taxpayer’s long service, or

• (b) in respect of a loss of an office or employment of a taxpayer, whether or not received as, on account or in lieu of payment of, damages or pursuant to an order or judgment of a competent tribunal,

by the taxpayer or, after the taxpayer’s death, by a dependant or a relation of the taxpayer or by the legal representative of the taxpayer;

The professor’s public use of the term “severance” in place of the term “retirement allowance” in this manner was suggestive of an amount paid in lieu of damages, which would also be suggestive of some finding of liability or culpability on the part of the university. Although the professor eventually deleted the tweets related to his “vindication,” he refused to delete the tweets referencing a “severance pay.” He then threatened to release the entire Minutes to the media unless the university met conditions that he demanded.

Arbitrator Kaplan directed that the university was not obliged to provide the without prejudice sum to the professor, stating,

It is quite clear from the tweets extracted above that [the professor] has breached the Minutes. The Minutes were categorical that there was no admission of liability or culpability by any of the parties, and no basis, therefore, for [the professor] to claim vindication. Indeed, it would be wildly inaccurate to say that agreement on the Minutes constituted vindication. It is actually untrue to say that the parties agreed that [the professor] was dismissed without cause, that he left the University on his own terms, that he was terminated for exercising his academic freedom and that he was owed severance pay. None of these issues were ever determined one way or the other. Moreover, the parties to the Minutes, including [the professor], agreed to say nothing about the contents of the Minutes other than that the matters in dispute were resolved. They promised to confine their remarks to that statement. There was no “severance pay” in the Minutes, but there was provision for payment of a relatively modest amount. By referring to vindication and by repeatedly referring to a payment provision (and severance pay), [the professor] violated the Minutes…

Settlements in labour law are sacrosanct and given the repeated and continuing breaches, together with the absence of any mitigating circumstance or explanation, I find that the University is no longer required to honour the payment provision.

This outcome is not surprising given the existing jurisprudence on confidentiality provisions. Courts and tribunals require some consequence to ensure adherence to agreements, otherwise such agreements would lack predictability and certainty and would discourage settlement.

In Jan Wong v. The Globe and Mail Inc., the Ontario Divisional Court heard a judicial review of an arbitration award that similarly concluded that a party had breached a Memorandum of Agreement (“MOA”) which admitted fault, but contained a confidentiality provision and non-disparagement clause. The inclusion of these terms appear to have emerged from the expressed intention of the employee to author a book on her experiences in the workplace.

When the employee did write a book, an excerpt was published in Chatelaine magazine to help develop some publicity. This excerpt commented on the reasons why her employer had fired her, and due to the objections raised by the employer the publisher decided not to publish the book and terminated the publication contract. Instead, the employee decided to self-publish the book.

Although the court concluded that the employee did not have standing to bring a judicial review on a labour arbitration that was between the employer and the union, the court still commented on the breach of the terms of the MOU, citing the Ontario Court of Appeal in Dumbrell v. Regional Group of Companies Inc.

to confirm that the subjective understanding of a party is not admissible as evidence for the purposes of interpreting the actual agreement,

[50] In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment’s thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

[51] Eli Lilly, supra, instructs that the words of the contract drawn between the parties must be the focal point of the interpretative exercise. The inquiry must be into the meaning of the words and not the subjective intentions of the parties. In this sense, my approach is textualist. However, the meaning of the written agreement must be distinguished from the dictionary and syntactical meaning of the words used in the agreement. Lord Hoffmann observed in Investors Compensation Scheme Ltd., supra, at p. 115 All E.R.:

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.

[emphasis added]

In the Acadia case, the Arbitrator Kaplan made special reference to the fact that the professor had counsel at the time of the drafting and entering of the Minutes of Settlement. His lawyer would have presumably explained the implications of the confidentiality clause. It’s unclear whether the professor continued to be represented while publicly speaking about the settlement, and he did not appear to be represented at the time when the arbitrator determined there had been a breach of the agreement. Not only were the words of the agreement clear, but the common intention of the parties was readily discernible,

It is noteworthy that all of the provisions of the Minutes were carefully and comprehensively reviewed with [the professor] by Association counsel, CAUT counsel and his personal attorney prior to [the professor] signing them. Moreover, as [the professor] is aware, following extensive discussion, the Minutes were carefully calibrated to restrict, as much as possible, limitations on what the parties could say. Put another way, and by deliberate design, [the professor]’s academic freedom remained virtually unfettered: [the professor] could not disclose any of the terms of the Minutes, including the payment provision, and could only say that the matters had been resolved. Otherwise he was completely free to speak and write about his experiences at Acadia University. Nevertheless, his tweets provide ample evidence of repeated breaches even after he was directed to cease.

Arbitrators have even gone as far as directing an employee to pay back monies paid to them from a settlement when confidentiality terms are breached. In Barrie Police Services Board v Barrie Police Association, Arbitrator Marcotte reviewed an MOU where an officer was provided twenty-eight (28) months of notice in exchange for withdrawal of a grievance, on terms that were “strictly confidential and without prejudice or precedent to any other matters.” The agreement was signed by the police board and the police association, but was not signed personally by the employee.

Following the agreement, the employee sought to be elected as the president of the police association. He posted a notice on the employee bulletin board as part of his bid to be elected, which stated,

The grievance of my unlawful removal from CID, which was supported by the general membership, was resolved when the Service offered twenty-eight months back pay, even though I had been removed for a period of twenty-two months. The Association Executive agreed to this resolution despite my wishes to proceed to a hearing to challenge the HONESTY, INTEGRITY AND CREDIBILITY of the Service’s case. The Service’s willingness to offer this monetary resolution, again, only served to validate my position on the grievance.
[emphasis in original]

The association invoked the doctrine of privity, in that the employee had not signed the agreement and could therefore not be bound by the terms. Alternatively, the argued that the vague nature of the confidentiality clause lacked precision about what could or could not be disclosed, and failed to specify what the penalties for disclosure would be. The board’s position was that ensuring the confidentiality of settlements is an essential way to encourage parties to resolve matters privately. The employee was represented by the association at the time, and was a severe breach because it was done deliberately with explicit political purposes.

Arbitrator Marcotte rejected the privity argument, and emphasized the importance of confidentiality in the role of encouraging parties to resolve their disputes,

As can be seen from the [Re Canadian General – Tower Ltd. and U.R.W., Loc. 292, [1992] O.L.A.A. No. 63, 12 L.A.C. (4^th) 153 (Craven)] award, there is a well-recognized industrial relations policy which encourages the parties to consensually settle disputes arising under their collective agreement. Moreover, those settlements are enforced by arbitrators in order to give effect to them; “a party will not be allowed to avoid the terms of settlement” Re Geo Tech Industries, supra, para. 16. This is so where the settlement is achieved by representatives who have the authority to bind the parties to its terms Re British Columbia Ferry Corporation and British Columbia Ferry & Marine Workers Union, [1980] 1 Can LRBR 409 (B.C.L.R.B) p. 419, cited in Re Geo Tech Industries, supra, at para. 18. In the instant case, there is no issue the MOA was agreed to by representatives of the Board and the Association who had the necessary authority to bind the parties to its terms, consensually arrived at on May 11, 2011. Under paragraph 9, the parties are agreed that I “remain seized” of my jurisdiction on the matter of the grievance and of the MOA. Accordingly, I have the authority to give effect to the terms of the MOA.

Relevant for our purposes, paragraph 8 states, in part, “This agreement is strictly confidential…”. This language clearly and unambiguously indicates the terms of the MOA are to remain exclusively within the purview of the parties’ knowledge. There is no suggestion or issue that either of the bargaining parties, the Board or the Association, did not keep the terms of the MOA confidential. Rather, the terms of the MOA were made public by the grievor in his communiqué of October 12, 2011 to the bargaining unit membership…

As indicated in the [Re Ontario (Ministry of the Attorney General) and O.P.S.E.U. [2004] O.G.S.B.A. No. 191, 121 L.A.C. (4^th) 382 (Abramsky)] award, determination of an appropriate remedy entails consideration of the circumstances surrounding the breach of a term of a settlement agreement, in particular a breach of the confidentiality clause. In the instant case, the grievor revealed the terms of the MOA in a deliberate manner. He did so as part of his campaign to be elected president of his Association. His motive for doing so in no way justifies revealing the terms of the MOA. In my view, and I so find, the deliberateness of the grievor’s actions and the motive for doing so cannot be condoned to any degree whatsoever. In these circumstances, I find the appropriate remedy is for the grievor to return the money provided to him under paragraph 1 of the MOA. Not only is this remedy warranted, but it serves to act as a deterrent to members of either party who, in the future, may be of the view that a confidentiality clause need not be adhered to or warrant the regard such a clause must have.

In Acadia, the parties were prudent enough to obtain the signature of the professor, and to contain explicit terms around confidentiality. However, the deliberate breach, political motivation, and the need for a similar need for deterrence is also applicable.

While the goals of academic freedom and promoting tenure in the post-secondary environment are all laudable goals, universities are still obliged to ensure a workplace that is free of discrimination and harassment. Where the conduct of a member of the academic community arguably extends into this conduct, even under the guise of freedom of expression, removal of this member is not only warranted, but may be part of the obligation of a university.

In a best case scenario, settlement agreements in such contentious contexts would go beyond a bare confidentiality and non-disclosure agreement. They would include a drafted statement by both parties that could be jointly released. Typically these statements would still refrain from acknowledging liability or culpability, but would express some satisfaction that the parties have found a mutually agreeable resolution. Where the dispute relates to a workplace policy or procedure, the employer can express a commitment to the shared values of the parties, and indicate a willingness to continue to work towards achieving these goals (albeit without the terminated employee, on a practical basis). This type of public statements allows for both parties to have a sense of a message that will be released at the time of settlement which will not leave either side feeling overly exposed. It makes it entirely clear that any public statements beyond a joint statement are inappropriate and a violation of the agreement.

Also useful is constructing confidentiality clauses in such a manner that allow for the employee to privately discuss the terms of the agreement with close family members. When confidentiality clauses are too strictly constructed, they can leave employees feeling isolated, lonely, and even filled with doubt. Settler’s remorse is a strong cognitive motivator prompting parties to publicly proclaim post-settlement vindication. Although review by counsel would still be a possibility, the relationships with people who have often supported an employee socially, emotionally, and even financially, are usually more important for developing a psychological sense of resolution.

When dealing with employment disputes that centre around expression interests, and the perception by the employee that they are being muzzled even before they enter into a settlement, all of these considerations might even be futile. It is especially in these cases that counsel, where they are retained, take special measures to advise their clients that violation of confidentiality provisions may be entirely counterproductive, and may compromise everything achieved in the settlement in the first place.

For parties who have signed an agreement limiting confidentiality to the agreement itself, and not extending to the broader dispute they are involved in and the underlying facts, it is especially important to have counsel review all such public statements. The informality of social media often provides the impression that such statements are inconsequential, but counsel are increasingly involved in the review of such statements online, instead of making statements to the media themselves. Discussions of the utility of legal advice post-settlement are therefore best conducted prior to the execution of the settlement itself.