Common use of U.P Clause in Contracts

U.P. E., Local 4400 (2007), 161 L.A.C. (4th) 374 (Ont. Arb.); Globe and Mail (The) and CEP, Local 87-M, Re (2013), 233 L.A.C. (4th) 265 (Ont. Arb.)]. If confidentiality provisions in settlement documents are routinely ignored by the parties who enter into those settlements documents, there would be a disincentive to even consider settling particular issues. Furthermore, by agreeing that the terms of a settlement will be kept confidential by the parties involved ensures that the parties' agreement to resolve a particular issue in a particular manner will not be misconstrued/misunderstood by others. The arbitration cases are clear that, if it is concluded that a confidentiality breach of a settlement document has occurred, any remedy to be imposed beyond just a breach declaration will depend on all the circumstances involved in the breach. Some of the considerations to be made in such circumstances are: what was said or written that constituted the confidentiality breach, in what forum, and the degree to which specific financial and other key settlement details were disclosed; whether the confidentiality breach was intended, premeditated and deliberate as opposed to being inadvertent; whether the confidentiality breach was a one time only occurrence by a party or whether there was a pattern of confidentiality breaches by that party. In some cases, a declaration alone that a confidentiality breach had occurred would be considered appropriate. In other cases, particularly where deterrence is a proper factor to be considered because of the nature of the confidentiality breach and the circumstances relating to it, a remedy of damages may also be considered appropriate in addition to the breach declaration [See Green Grove Foods Corp. v. U.F.C.W, Local 175 (2012), 218 L.A.C. (4th) 267 (Ont. Arb.)]. (paras. 20-24) A final quotation from Globe and Mail (The) and CEP, Local 87-M, [2013] OLAA No. 273, 115 CLAS 210 (Davie), explains why parties may be motivated to settle discharge grievances in particular: As in the case of other types of litigation "nondisclosure" and "no admission of liability clauses" are also a recognition of the fact that parties settle grievances for a variety of reasons which may be unrelated to liability or wrongdoing. Employees may settle discharge grievances not because they accept that they have engaged in culpable misconduct warranting dismissal, but because they need money as they are now unemployed and can't afford to wait the weeks, months or years for their grievance to be decided. Employers may settle discharge grievances not because they agree that they acted unjustly, but because it is less costly than proposed litigation, or simply more expedient to deal with circumstances immediately rather than await the outcome of lengthy litigation. Parties may settle matters because each fears that potentially acrimonious litigation will negatively impact ongoing relations. There are as many reasons why parties settle grievances as there are interests and objectives at stake in the grievance. The common thread in all settlements however is certainty of result. By entering into minutes of settlement the parties achieve both finality and certainty of result on terms which they have concluded are acceptable to them. By agreeing that the terms of a settlement will not be disclosed the parties ensure that their agreement to settle matters will not be misconstrued by others. (para. 26) There is merit to the applicants’ procedural fairness arguments that this proceeding should not be converted into an examination of whether the Grievor breached the confidentiality terms. The University chose not to pursue that avenue and, instead, pursued a course of “self-help”. Nonetheless, in considering all of the attendant circumstances, I have read (and re-read) the various public statements attributed to the Grievor. A full and objective review of those disclosures confirms the applicants’ contention that the Grievor’s statements throughout were addressing the allegations brought by ▇▇ and others against him, along with the resulting investigation and the ▇▇▇▇ Report. By way of illustration, I repeat one of the extracts highlighted by the University: "You come out of it having received a judgement that you didn't do these things, and that is still not good enough," he says, referring to the ▇▇▇▇ decision. "You think, well then there is nothing that will ever be good enough. There is no possibility of innocence. To realize that, after having put so much faith in a system to arrive at the truth, and for the truth to matter to anyone, yeah, it's a hard feeling to describe, but hopelessness is the only word I can think of. "That, combined with just how painful it was to have the majority of my former colleagues at work go from being quasi-family members to people who absolutely loathed me, without ever speaking to them about it. It was a painful, wrenching shock, and something I never thought could happen. At the very least, I thought I would be given an opportunity to, I don't know what, tell my side — even if they wanted to take a neutral position. I don't know what I expected, but I expected people who'd known me for 20 years not to immediately go to the worst possible conclusions." (italics added) As his counsel submits, these statements refer directly to the Grievor’s friends and former colleagues who never gave him an opportunity to speak before deciding he was guilty of sexual assault; contrary to the University’s contention, the passage does not refer to the arbitration proceeding. Further, it was preceded in the article by the facts that: (a) the Faculty Association had withdrawn the reinstatement/compensation claims part way through the arbitration process; and (b) the Grievor was not allowed to discuss the details of the arbitration. I similarly find the University’s complaint about the Grievor saying in the final paragraph of his exclusive account that he was “exonerated” mischaracterizes what was written. When read in context, it is apparent the Grievor was giving his description of the findings in the ▇▇▇▇ Report, and was not referring to the arbitration. This becomes evident when one reads what he wrote four paragraphs earlier: