Famous Cases.

• Author: Bowal, Peter

Confidentiality Clauses: the Jan Wong Case

Introduction

... I can't disclose the amount of money I received I'd just been paid a pile of money to go away... Two weeks later a big fat check landed in my account. Even with a vastly swollen bank account... Almost all lawsuits are settled or abandoned. Only about 5% go through to a full trial. Nearly all settlements where lawyers are involved have a confidentiality clause in the settlement agreement. If there is a payout of money, generally no one can talk about it. Most of the time, the parties all agree to these clauses in order to get the cash and end the legal hostilities.

This column describes a recent case that demonstrates the seriousness of these confidentiality clauses.

Provocation of Journalist Jan Wong

In September 2006, Jan Wong's employer, the Globe and Mail, instructed her to write an article on the assassination of a student at Dawson College in Montreal. In her article, "Get Under the Desk", Wong expressed a view that the shooting, along with two previous school shootings in Quebec, could be linked to the alienation of non-native Quebecois in the province. After publication, public outcry challenged the suggestion that Quebec society was obsessed with "racial purity".

Wong became the target of hate mail, racial comments and even death threats. Many politicians and Quebec journalists denounced the article and demanded an apology. Wong refused to retract her view, and the Globe and Mail defended her on the basis of free speech. The Globe and Mail took the position that a journalist's job is to ask hard questions and explore different ideas, even those which are controversial. Neither Wong nor the Globe and Mail apologized for the article.

Depression and Settlement

The personal attacks against Wong were relentless. Her mental health deteriorated, and she developed severe depression. She took sick leave from work between October 2006 and the spring of 2007. In April 2007, Wong went back to work but relapsed, and she took more time off work.

After refusing to pay sick leave between June and November of 2007, the Globe and Mail ordered Wong back to work in May 2008. They did not believe she was still sick or unable to work. Wong said she was still medically unfit to return to work. When she did not return, the Globe and Mail terminated her employment.

The court found the settlement agreement's confidentiality clause was clear and unambiguous.

Wong's union grieved the unpaid sick leave...