The No-Brag-Clause:
Confidentiality Provisions in Settlement Agreements

The decision in Acadia University v Acadia University Faculty Association, 2019 CanLII 47957 serves as word to the wise and humble boaster that confidentiality provisions in a settlement agreement preclude all bragging rights. It also serves as a reminder to the carefully diligent counsel to draft agreements with clear and unequivocal confidentiality provisions.

In this case, the Acadia University Faculty Association filed grievances for the termination of a tenured professor. The parties voluntarily entered into a settlement agreement, which stipulated that this matter was resolved without any admission of liability or culpability on either side. The agreement also required the minutes be kept strictly in confidence. Following the settlement, the professor took to Twitter, tweeting, among other things, that he was “a vindicated former professor.” Arbitrator Kaplan ordered these tweets be deleted in compliance with the settlement, but the professor continued tweeting, this time about his “severance pay” being withheld.

The employer asked the arbitrator to decide whether these tweets breached the confidentiality provisions of the agreement. Arbitrator Kaplan determined that they had, and reasoned that words like “vindicated” and “severance” inferred wrongdoing on the part of the University, when this was specifically not the case. The Arbitrator explained that settlements in labour law are sacrosanct. Given the repeated and continuing breaches to the terms of the settlement, together with the absence of any mitigating circumstances, Arbitrator Kaplan held that the University was no longer required to honour the payment of the settlement funds.

This case showcases both the prowess and enforceability of clearly drafted confidentiality provision.