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In a decision released November 3, 2014, the Divisional Court dismissed a proposed application for judicial review brought by journalist Jan Wong in a case against The Globe and Mail. The case highlights several important aspects of our legal system that are worth commenting on.

First, the context. Ms. Wong had been a reporter at The Globe and Mail for over 20 years. In September 2006, she was asked to write an article on a shooting that had occurred at Dawson College in Montreal. The article was controversial and led to criticism of Ms. Wong, which in turn caused her to be off work due to depression. Although she returned briefly in the spring of 2007, she suffered a relapse and remained off work thereafter. In May 2008, The Globe ordered Ms. Wong back to work. When she failed to return, her employment was terminated.

The resulting grievance by Ms. Wong was handled by her Union and was eventually settled. The terms of settlement provided that The Globe would make payment of outstanding sick benefits, and a lump sum payment of $209,912.00, the equivalent of two years pay. The Globe was aware that Ms. Wong intended to publish a book, and insisted on confidentiality of the settlement terms. The parties agreed “not to disclose the terms of this settlement.” The agreement went on to provide: “Should the Grievor breach the obligations set out in paragraphs 5 and 6 above, Arbitrator Davie shall remain seized to determine if there is a breach and, if she so finds, the Grievor will have an obligation to pay back the Employer all payments paid to the Grievor under paragraph 3.”

The monies were duly paid to Ms. Wong. In May 2012, she self-published a book in which she commented on her dealings with The Globe. As subsequently found by the Arbitrator, she made four statements that breached the terms of the settlement agreement: (1) “I can’t disclose the amount of money I received”; (2) “I’d just been paid a pile of money to go away”; (3) “Two weeks later a big fat check landed in my account”; (4) “Even with a vastly swollen bank account…” The Arbitrator held that, pursuant to the terms of the settlement agreement, the two year’s salary had to be repaid. Ms. Wong had Union representation throughout.

The case that was heard by the Divisional Court was an attempt by Ms. Wong to judicially review the Arbitrator’s decision. Ms. Wong, however, was not a party to the collective agreement. The Union was, and consequently Ms. Wong had no standing to bring an application for judicial review on her own, if the Union chose not to do so. The only exceptions to this rule are where a collective agreement confers an individual employee the right to pursue a grievance to arbitration; where the Union takes a position adverse in interest to that of the Grievor; or where the representation by the Union has been so deficient that the Grievor should be given the right to pursue judicial review. The Divisional Court held that Ms. Wong did not fall within any of the exceptions, and therefore had no standing to review the decision of the Arbitrator. The monies had to be returned.

The wider aspects of our system highlighted by this case are, firstly, just how vulnerable Union members can be. As a Union member, an employee who has been terminated or otherwise suffered serious work-related consequences, has no individual right to pursue a grievance to arbitration. It is up to the Union to decide whether to proceed, with legal counsel of their choice. The Union can decide not to proceed to arbitration, or to settle or abandon a grievance against the wishes of the employee. Throughout all this, a dissatisfied employee’s only recourse is to bring a duty of fair representation complaint before a labour relations board. These are extremely difficult to win, as it must be shown that the Union acted in a manner that was arbitrary, discriminatory or in bad faith.

The second point relates to the prevalence of confidentiality clauses in settlement agreements. In our civil litigation system, over 95% of cases settle out of court. It is not uncommon for defendants to require that the terms of settlement remain confidential, although there are generally exceptions permitting disclosure to immediate family members or legal and financial advisers. Through the use of confidentiality, defendants are thus able to shield from the public what might be construed as admissions of liability, or information about amounts they were prepared to pay to resolve a legal claim. For employers faced with potential claims from multiple employees, this can be valuable.

Perhaps underlying Ms. Wong’s case most of all is the belief amongst judges that parties who sign agreements should be held to the bargain that they made.