In a 2021 analysis, Statistics Canada found that more than 91% of Canadian survey respondents used the Internet in the preceding three months, a figure that rose to between 97% and 99.6% for respondents aged 15–49. A smaller, but still sizable, percentage of those same respondents said that they “regularly” used social media. Despite its promise of near-limitless connectivity, the analysis also highlighted some of the problems respondents associated with social media, such as loss of sleep, lower physical activity, and negative emotions (e.g., anxiety and depression).[1]
Practitioners of labour and employment law are likely familiar with another issue associated with social media use: a willingness by parties to settlement agreements to “over-share” or publicly post on social media about their agreements. Though this problem is not confined to labour and employment law practitioners, they may feel it more acutely given the frequency with which disputes in this area of law are settled and the common use of confidentiality, non-disclosure, and similar terms in settlement agreements. However, the question remains: what should be done when a party to a settlement agreement breaches it by posting on social media?
The following review of two recent, non-judicial decisions sets out how counsel can respond when a settlement agreement has been breached by a party posting about it on social media. More than that, however, reading “between the lines” of these cases also offers practitioners guidance on how they can mitigate the risks posed by social media for settlement agreements their clients enter into.
Arbitrator Elaine Doyle’s decision in A Municipal Police Board v A Municipal Police Association, 2022 CanLII 60942,[2] shows how these cases generally play out. Here, a British Columbia police board grieved that a former police constable (“FPC”) the board previously employed breached a settlement agreement by making Facebook postings that disparaged the board. The agreement with FPC included a non-disparagement provision that, if breached, would require FPC to return $30,000 the board paid to him as part of the agreement.
Remarks authored by FPC stated that the board was corrupt, mismanaged, and that the provincial government ought to investigate the board. When alerted to FPC’s Facebook posts, counsel for the board reviewed his social media accounts and directed a letter to FPC, reminding him of his obligations under the agreement. The board further demanded that FPC cease and desist from making more disparaging posts. FPC was undeterred and continued posting, goading the board to take action against him.
Arbitrator Doyle ultimately found for the employer police board. She held that FPC’s postings disparaged his former employer and that, in making them, FPC contravened the parties’ agreement. Arbitrator Doyle directed FPC to repay the $30,000 the board previously paid him, further ordering him to cease and desist from making any more remarks disparaging the board.
Vice-Chair Inbar’s recent decision in LCC v MM, 2023 HRTO 1138,[3] is also exemplary. In this case, the applicants brought an application at the Human Rights Tribunal of Ontario to enforce the terms of a sexual discrimination settlement agreement with the respondent. This agreement settled an earlier application brought by the respondent against the applicants, her former employer and co-worker, alleging that they sexually discriminated against her. Among other things, this agreement required that the respondent keep its terms confidential and that the respondent would not disparage either applicant. The agreement also provided the respondent with a cash settlement payment. The agreement contained an exception to its confidentiality term that permitted the respondent, upon inquiry, to disclose that she resolved her sexual discrimination application against the applicants.
At issue in this case was a LinkedIn post authored by the respondent. This post, which was later revised using similar language, was addressed to “all those inquiring” and stated that the respondent resolved her sexual discrimination application against the applicants. Upon becoming aware of the post, the applicants directed that the respondent remove the post, which she declined to do. In response to the applicants’ contention that her LinkedIn post breached the parties’ settlement agreement, the respondent asserted that the post fell within the exception above.
As in the previous decision, Vice-Chair Inbar concluded that the LinkedIn post violated the terms of the parties’ settlement agreement. In response to the respondent’s reliance on the exception, the Vice-Chair found that it exclusively provided for “limited disclosure to a limited group”, with the parties never intending to allow for blanket statements like those in the LinkedIn post. Finding that the respondent breached the settlement agreement, Vice-Chair Inbar accordingly directed her to return the applicants’ settlement payment.
The foregoing decisions provide practitioners with a roadmap of how to respond to breaches of settlement agreements through social media postings. Both decisions indicate the importance of fact-finding by counsel (i.e., gathering posts purported to have breached a settlement), attempting to resolve the breach prior to litigation through the use of cease and desist or demand letters, and (when the circumstances require it) litigating against the party who breached the agreement.
The decisions summarized above also point to proactive measures counsel can take to ensure that settlement agreements are not breached by parties’ careless use of social media. Both cases, but particularly Vice-Chair Inbar’s decision, emphasize that counsel must carefully draft these agreements. While the usual rules in contract drafting apply, precise wording that clearly reflects the parties’ intentions can assist in managing the risks associated with settlement agreements. As the cases above demonstrate, clear and purposeful language can also provide the parties with a hedge against possible future breach of such an agreement.
From a practice management standpoint, the cases also suggest that counsel acting for clients entering into settlement agreements that contain confidentiality, non-disparagement, or similar clauses ought to stress the importance of these provisions to their clients. It is all too easy, particularly when a settlement agreement resolves most or all outstanding disputes between the parties, for counsel to act with “tunnel vision” and gloss over or ignore these “minor” covenants. However, the decisions above ought to remind counsel that they ignore these provisions at their—and their clients’—peril.
About the author
Brendan Egan is an associate lawyer at Filion Wakely Thorup Angeletti LLP. Brendan acts for employers on diverse issues and he particularly enjoys working on niche and uncommon problems. Brendan was called to the Ontario bar in 2023.
[1] Statistics Canada, Canadians’ assessments of social media in their lives, by Christoph Schimmele et al., Catalogue No 36-28-0001 (Ottawa: Statistics Canada, 2021).
[2] Arb. Doyle anonymized the identities of the police board, the police association, and the former employee who contravened his settlement agreement through his social media posts.
[3] Vice-Chair Inbar anonymized the identities of the applicant employer and former co-worker and the respondent.
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