A confidentiality or non-disclosure agreement (NDA) is a binding contract between two parties where one (or both) of the parties agree(s) to maintain confidentiality on certain terms and conditions of the settlement agreement when resolving a dispute. In-fact, failure to maintain confidentiality and/or any breach thereof may result in forfeiture of the benefits of the settlement agreement to the receiving party.
Now what if, in this day and age, one of the parties go to social media and start discussing (or rather mocking) about how the settlement agreement was signed in his/her favor and how the other party lost, without necessarily disclosing the settlement terms of the agreement itself? A similar situation was dealt with when the case of Acadia University v Acadia University Faculty Association, 2019 CanLII 47957 was subject to arbitration for the alleged breach of the minutes of settlement.
The facts of the case are as under:
Dr. Rick Mehta, a tenured professor, was terminated by Acadia University for cause. The Faculty Association filed grievances contesting Dr. Mehta’s termination.
MINUTES OF SETTLEMENT
Following lengthy discussions, the Minutes were voluntarily executed by Acadia, the Faculty Association, and Dr. Mehta. The following may be noted:
- The grievances were resolved “without any admission of liability or culpability by any of the parties.”
- The parties, including of course Dr. Mehta who signed the Minutes, agreed “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice.”
- The Minutes contained the following undertaking: “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.”
Dr. Mehta breached the provision requiring “all of the parties to be specifically circumspect in what they said about the resolution of the matters in dispute. These breaches began almost immediately following the execution of the Minutes”.
Dr. Mehta posted the following on Twitter:
“Vindicated former professor! Advocate for free speech and institutional transparency in universities.” One of Dr. Mehta’s followers tweeted “congrats Rick! Hope you got a nice sum monz.” Dr. Mehta responded as follows: “All I will say is that I left with a big grin on my face.” Dr. Mehta tweeted: “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.”
Dr. Mehta failed to remove/delete these comments even after receiving request/advise from the counsel for the faculty association.
Further tweets were posted. Dr. Mehta tweeted: “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” and “You dismissed me for exercising my rights to academic freedom and dissent. Now you are withholding my severance pay….” Numerous other tweets also made reference to his “severance pay.” Moreover, in a letter to the President of Acadia University dated May 8, 2019, Dr. Mehta threatened to release the Minutes to the media unless certain conditions were met.
William Kaplan, the sole arbitrator on this case confirmed multiple breaches, stating:
It is quite clear from the tweets extracted above that Dr. Mehta 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 Dr. Mehta 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 Dr. Mehta 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 Dr. Mehta, 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), Dr. Mehta violated the Minutes.
It was held:
Dr. Mehta repeatedly broke his promise of confidentiality and to limit his comments about how this matter was resolved. Indeed, the tweets and correspondence continue. 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.
Clearly, the settlement agreements (such as a final release in any liability claim) must be on a without prejudice and non-precedent basis, must be unambiguous and unequivocal in nature. It may not be a bad idea to enter a clause regarding “comments on social media” while drafting such agreements.