M.M. v. L.C., 2025 ONSC 741

CITATION: M.M. v. L.C., 2025 ONSC 741

DIVISIONAL COURT FILE NO.: 740/23

DATE: 20250204

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Davies and Jensen JJ.

BETWEEN:

M.M.

Applicant

– and –

L.C., L.C.C. and Human Rights Tribunal of Ontario

Respondents

COUNSEL:

Emma Phillips, Mary-Elizabeth Dill and June Mills, for the Applicant

Michael Comartin and John Wilkinson, for the Respondents, L.C. and L.C.C.

Maija-lisa Robinson, for the Respondent, Human Rights Tribunal of Ontario

HEARD at Toronto: December 4, 2024

REASONS FOR JUDGMENT

JENSEN J.

Introduction

[1] The Applicant, M.M., brings an application for the judicial review of two decisions of the Human Rights Tribunal of Ontario (the Tribunal): the Original Decision dated July 31, 2023, reported at 2023 HRTO 1138, and the Reconsideration Decision dated November 27, 2023, reported at 2023 HRTO 1712 (together referred to as the “Decisions”).

[2] The Decisions relate to an application for contravention of a settlement (the COS application), filed by the Respondents[^1] against the Applicant. The Tribunal found that the Applicant breached the confidentiality and non-disparagement clauses contained in the Minutes of Settlement (the MOS) resolving M.M.’s human rights application. The Tribunal required the Applicant to repay to the Respondents the full amount of the settlement, totaling over $100,000. In addition, the Tribunal ordered the anonymization of the parties’ names and identifying information.

[3] M.M.’s originating human rights application under s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) alleged that the Respondents discriminated against her with respect to employment on the basis of sex.[^2]

[4] The first issue in the COS proceedings was whether the Applicant had violated the MOS by including the following statement on her LinkedIn profile: “To all those inquiring, I have come to a resolution in my Human Rights Complaint against [L.C.C.] and [L.C.] for sex discrimination.” The statement appeared in the first sentence of the Applicant’s public LinkedIn biography in the “About” section.

[5] The second issue in the COS proceedings was what remedy was appropriate in the event that a breach of the MOS was found.

[6] In the Original Decision, the Tribunal found that the Applicant’s LinkedIn post breached the MOS and that it was reasonably foreseeable that the Respondents would suffer harm. The Tribunal decided that the Applicant was required to repay the full amount of the settlement money as a consequence of breaching the MOS.

[7] The Tribunal also ordered the anonymization of the parties’ names along with any other identifying information. The Tribunal held that although the discretion to anonymize was to be exercised only in exceptional circumstances, it was warranted in this case. The Tribunal found that anonymization was necessary to prevent further damage to the Respondents’ reputation.

[8] On reconsideration, the Tribunal upheld its Original Decision. The Tribunal disagreed with the Applicant’s position that the Original Decision conflicted with established case law or Tribunal procedure. The Tribunal held that the Original Decision did not constitute a “clear and surprising departure” from established jurisprudence.

[9] The Tribunal also disagreed that there were issues of “general or public importance” that warranted a reversal of the Original Decision. The issue was simply whether the MOS had been breached and, if so, what the appropriate remedy was.

[10] In her Application for Judicial Review, the Applicant argues that the Decisions were unreasonable both with respect to the breach of the confidentiality and non-disparagement clauses as well as the remedy. The Applicant argues that the Tribunal reached an unreasonable conclusion regarding the breadth of the confidentiality and non-disparagement provisions. In addition, the Applicant argues that the Tribunal unreasonably fettered its broad remedial discretion with respect to remedies and unreasonably found that the publication of a discrimination allegation constitutes sensitive and personal information that warrants exceptional protection in the form of an anonymization order.

[11] For the reasons that follow, we dismiss the application for judicial review.

Factual Background

The Parties

[12] The Applicant, M.M., is a chemical engineer who was employed as a Process Engineer with the Corporate Respondent, L.C.C., at the company’s West Hill location in Toronto, from March 14, 2011, until the termination of her employment on November 30, 2017.

[13] The Corporate Respondent, L.C.C., is a specialty chemicals company that, together with its parent company and related entities, operates in dozens of countries across six continents.

[14] The Personal Respondent, L.C., was employed by the Corporate Respondent as a Plant Manager and supervised the Applicant between September 2017 and November 30, 2017, when her employment was terminated.

The Human Rights Application

[15] On February 20, 2018, M.M. filed a human rights complaint with the Tribunal against both the Corporate and Personal Respondents, alleging that they discriminated against her with respect to employment on the basis of sex, contrary to s. 5 of the Code.

[16] The Respondents filed a response to the human rights complaint. The Applicant filed a reply in which she raised new allegations. The Respondents then filed a request for an order during proceedings, seeking leave to amend their response to respond to fresh allegations of sex discrimination and sexual harassment in the Applicant’s reply.

[17] On October 23, 2018, the Tribunal issued an interim decision granting the Respondents’ request to amend their response. The Tribunal’s interim decision, which was subsequently posted online, listed the names of the Corporate and Personal Respondents, summarized the nature of the Applicant’s claim of sex discrimination, and explained that the Applicant had also made allegations of harassment against the Respondents in her reply.

Settlement of the Human Rights Application

[18] On June 7, 2019, the parties entered into the MOS, resolving the human rights complaint. Both parties were represented by counsel at the time.

[19] The MOS contained a confidentiality clause, and a non-disparagement clause that read as follows:

6. Confidentiality: The Applicant may disclose the terms of these Minutes of Settlement to her immediate family, legal and financial advisors, on the condition that they also agree to maintain strict confidentiality of these Minutes of Settlement. Upon inquiry by any person about the resolution of the Application or conclusion of the Applicant’s employment with [L.C.C.], the Applicant shall simply state that all matters have been resolved. The Applicant will make no mention of, or allude in any way whatsoever to, the receipt of money or the amount of money received from [L.C.C] in this Settlement.

7. Mutual Non-Disparagement: The parties agree that the purpose of this Settlement is to resolve any issues the Applicant has with the Respondents on a confidential basis and without any disparagement of the parties. Accordingly, the parties agree to refrain from making any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party's reputation in the eyes of customers, regulators, the general public, or employees, unless required by law. This non-disparagement includes but is not limited to any electronic communications through social media (such as Facebook, Twitter, Instagram, Youtube, Snapchat, etc.)

[20] The MOS also contained a liquidated damages clause which provided that the Applicant would repay the settlement money in the event of a breach of the MOS:

8. Breach: The Applicant agrees that if she breaches any of the obligations under this Settlement, and in particular the confidentiality obligation set out in paragraph 7 and the non-disparagement obligation in paragraph 8, above, she will be required to repay to the Respondent the Settlement Payment paid to her under paragraph 2 of these Minutes of Settlement as liquidated damages, and will be responsible for any additional damages incurred by the Respondent.

[21] The MOS included an acknowledgment that the Applicant was freely signing the MOS and that she understood her obligations. It read as follows:

Understanding: The Applicant hereby declares that she has had an opportunity to obtain independent legal advice regarding the matters addressed in these Minutes of Settlement or has freely chosen not to do so, and that she fully understands her obligations under these Minutes of Settlement. She voluntarily accepts the terms and conditions set out in these Minutes of Settlement and agrees to finally settle all claims or potential claims, as described above, that she has or may have in future against the Respondents.

Post-Settlement Events

[22] After filing her human rights complaint, but before the settlement, the Applicant posted the following comment about her claim in the “About” section of her LinkedIn profile: “I have filed a Human Rights Complaint against [L.C.C.] and [L.C.] for sex discrimination.”

[23] Following the settlement, the Applicant amended her LinkedIn statement as follows: “To all those inquiring, I have come to a resolution in my Human Rights Complaint against [L.C.C.] and [L.C.] for sex discrimination.”

[24] In September 2020, while conducting a Google search for other information, L.C. discovered the Applicant’s LinkedIn statement about the resolution of her sex discrimination complaint. The full names of both L.C.C. and L.C. were used in the posting.

[25] Once the post was discovered, counsel for the Respondents emailed and later wrote a letter to the Applicant requesting that she remove the LinkedIn post language. Repayment of the settlement money was not sought at that time, but the Applicant was warned that it likely would be if she continued to refuse to comply with their request.

[26] In or around October 2020, the Applicant revised the post to read “To all those inquiring, all matters have been resolved in my Human Rights Complaint against [L.C.C.] and Mr. [L.C.] for sex discrimination.” The Applicant refused to remove the statement but did initialize the names of the Respondents.

[27] In November 2020, the Respondents commenced the COS Application. On December 23, 2020, the Applicant filed her response to the COS application. Before doing so, the Applicant deleted the posting. However, she continued to assert her right to make the post and similar posts in the future.

[28] The Tribunal rendered the Original Decision on July 31, 2023, in which it found that the Applicant had breached the MOS and that she was required to repay the settlement money. In addition, the Tribunal ordered the anonymization of the Respondents’ names.

[29] On November 27, 2023, the Tribunal issued its Reconsideration Decision in which it upheld the Original Decision.

The Issues

[30] The Applicant asserts that the following questions are in issue in her application for judicial review:

(i) Did the Tribunal unreasonably fail to consider the broad remedial purposes of the Code in interpreting the MOS?

(ii) Did the Tribunal unreasonably conclude that the Applicant breached the confidentiality clause in the MOS?

(iii) Did the Tribunal unreasonably conclude that the Applicant breached the non-disparagement clause in the MOS?

(iv) Did the Tribunal unreasonably restrict its remedial discretion under s. 45.9(8) of the Code?

(v) Was the Tribunal’s decision to grant the Respondents’ request for anonymization unreasonable?

The Standard of Judicial Review

[31] The parties agreed that the standard of judicial review is reasonableness.

[32] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”.[^3] A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision.[^4] The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting a reasonableness review.[^5]

[33] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”.[^6]

Analysis

Issue One: Did the Tribunal Unreasonably Fail to Consider the Broad Remedial Purposes of the Code in Interpreting the MOS?

[34] The Applicant argues that in interpreting the MOS, the Tribunal was required to consider the Code’s broad remedial purposes in eradicating discrimination and ensuring future compliance with the Code. She notes the criticisms that have recently been leveled against Non-Disclosure Agreements (NDAs), including that they (a) silence victims/survivors of discrimination, (b) perpetuate a culture of impunity for rights-abusers, and (c) have a chilling effect on reporting and open dialogue regarding experiences of discrimination.[^7]

[35] The Applicant argues that given this public policy context, it was even more critical that the Tribunal interpret the confidentiality and non-disparagement clauses strictly, and in a manner consistent with governing contract interpretation principles, including by not going beyond the plain language of the text agreed to by the parties. In addition, in carrying out its interpretive exercise and in exercising its discretion and remedial powers under the Code, the Tribunal was required to have appropriate regard to the broad purposes and public policy mandates underlying the Code.

[36] The Applicant states that the Tribunal failed to consider these very important contextual factors and instead, rigidly applied the principles of contract law to the interpretation of the MOS. In Vavilov, the Supreme Court of Canada stated that “a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably”.[^8]

[37] In response, the Respondents assert that the Applicant’s claim that NDAs silence victims/survivors of discrimination unfairly insinuates that the Respondents discriminated against the Applicant, despite the untested nature of the allegations and the express denial of liability in the MOS.

[38] In some Canadian provinces, the legislatures have passed legislation that restricts the use of NDAs in certain circumstances.[^9] In November 2023, Ontario announced its intention to launch public consultations regarding restricting the use of NDAs settling cases of workplace sexual harassment, misconduct, or violence. For the time being, however, there is no legislation in Ontario that restricts the use of NDAs in the settlement of human rights cases.

[39] We also note that the Tribunal was not deciding the merits of the discrimination complaint. Rather the Tribunal was interpreting the contractual terms. of the MOS in light of the legislative objectives of resolving human rights disputes and providing appropriate remedial relief for the contravention of settlement agreements. We find that the Tribunal gave due consideration to the relevant contextual factors in this case.

Issue Two: Did the Tribunal Unreasonably Find a Breach of the Confidentiality Provision?[^10]

[40] The Applicant argues the Tribunal’s finding that she breached the confidentiality provision in the MOS was unreasonable because the plain language of the clause did not prohibit disclosure of the fact of her Application or its resolution, and because the information regarding the nature of her Application was already publicly available in the Tribunal’s October 23, 2018 interim ruling.

[41] In response, the Respondents argue that the Tribunal carefully applied the plain language of the contractual provisions to the factual matrix, as it was required to do. The Respondent argues that the confidentiality and non-disparagement provisions in the MOS were bespoke. They contained elements that were tailored to the parties’ intentions and interests. In the Respondents’ view, the confidentiality and non-disparagement provisions do not mirror similar provisions in the cases cited by the Applicant. The Respondents assert that the Tribunal properly distinguished those cases from the present one.

[42] The Respondents further argue that the fact that a procedural ruling by the Tribunal was published online did not give the Applicant license to make a public statement on LinkedIn. If that were the case, there would be no need for the language granting the Applicant a limited right to respond to inquiries with the statement "all matters have been resolved".

[43] Given the specific wording of the MOS in this case, we find that the Tribunal’s conclusion that the Applicant breached the confidentiality clause was reasonable. The Tribunal recognized that the principles of contract law provided the framework for the analysis. This approach was endorsed by the Ontario Court of Appeal in Briggs v. Durham (Police Services Board), 2022 ONCA 823, leave to appeal refused, [2023] S.C.C.A. No. 43, wherein the Court of Appeal held that in the context of a dispute over the terms of a settlement of a human rights application, contract law applies.

[44] Consistent with the principles of contractual interpretation, the Tribunal considered the wording of the confidentiality clause in the context of the whole agreement, the legislative context and the facts at the time the agreement was reached. Although the Applicant criticized the Tribunal for failing to first define the scope of the confidentiality clause before determining whether either of the two exceptions applied, we find that the Tribunal made an implicit finding regarding the scope of the confidentiality provisions.

[45] During the hearing before the Tribunal, the Applicant testified that she believed the language of the confidentiality clause permitted her to post about the settlement and the sex discrimination allegations on LinkedIn as long as she did not indicate that she had received money or compensation from the settlement.

[46] The Tribunal rejected the Applicant’s interpretation of the scope of the confidentiality provisions, stating that it was not consistent with a plain language reading of the MOS, nor was it consistent with the whole of the agreement. While the Tribunal’s reasons spoke in terms of the “exceptions” to the confidentiality provision, we find that implicit in the Tribunal’s rejection of the Applicant’s position was the finding that the confidentiality provision prohibited any comment to anyone other than what was explicitly permitted in the agreement. This was a reasonable finding, based on the language of the provisions in this agreement.

[47] The first line of the mutual non-disparagement clause states:

The parties agree that the purpose of this Settlement is to resolve any issues the Applicant has with the Respondents on a confidential basis and without any disparagement of the parties. [Emphasis added.]

[48] A plain reading of this sentence suggests that the parties agreed to broad confidentiality in respect of all issues. It may have been clearer if this sentence was part of the confidentiality clause rather than the non-disparagement clause. However, the contract must be read as a whole[^11] and its placement in the non-disparagement clause does not detract from the fact that it supports the Tribunal’s implicit finding that the parties agreed to broad confidentiality with two exceptions.

[49] The exceptions to this broad confidentiality clause are found in the paragraph under the heading “confidentiality”. In that paragraph, only two exceptions are provided to the generally confidential nature of the issues between the parties: (1) the Applicant may disclose the terms of these Minutes of Settlement to her immediate family, legal and financial advisors, on the condition that she also agrees to maintain strict confidentiality of these Minutes of Settlement; and (2) upon inquiry by any person about the resolution of the Application or conclusion of the Applicant’s employment with the corporation, the Applicant shall simply state that all matters have been resolved.

[50] The final words of the confidentiality clause state that the Applicant must not make mention of, or allude in any way whatsoever to, the receipt of money or the amount of money received from the Corporate Respondent in the Settlement. The Tribunal rejected the Applicant’s argument that this meant she could disclose the fact of the settlement and the nature of the human rights complaint as long as she did not make mention of any money received. Given the wording of the MOS, we find that the Tribunal’s rejection of the Applicant’s argument was reasonable. The Tribunal reasonably concluded that the Applicant’s interpretation would effectively “neuter” the confidentiality clause. If the Applicant was permitted to make public statements on LinkedIn about the human rights complaint and the settlement, the words “upon inquiry” would be meaningless.

[51] The Tribunal found that the purpose of the exceptions, including the “upon inquiry” exception, was to permit the Applicant to respond to questions concerning her human rights complaint and the termination of her employment in a neutral and pre-approved fashion. It would make no sense to say that the Applicant was restricted to telling those who inquired about her complaint that all matters were resolved and yet on social media, she was permitted to say that her sex discrimination complaint against the named Respondents was resolved. This, the Tribunal reasonably concluded, would defeat the purpose of the confidentiality and non-disparagement provisions of the MOS.

[52] The Applicant also argues that the Tribunal unreasonably failed to engage with any of the Tribunal’s case law dealing with the contravention of settlement agreements. The Applicant argues that the facts in 4137566 Canada v. Clements, 2011 HRTO 106, are strikingly similar to the present case. Therefore, the Tribunal ought to have explained its departure from the principles set out in that case and others to make its decisions intelligible.[^12]

[53] While the Tribunal is not bound by other Tribunal decisions dealing with the same or similar issues, the Supreme Court of Canada did make it clear in Vavilov that one of the indicia of a reasonable decision is its consistency with other decisions from that agency/tribunal.[^13] As stated in Vavilov:

Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable.[^14]

[54] In the present case, the Tribunal’s decisions in other contravention cases are distinguishable on their facts. In Clements, the confidentiality clause was limited to non-disclosure of the “terms of the settlement”. The Tribunal found that the agreement did not prohibit a party from disclosing the fact that there was a claim or a settlement. In contrast, in the present case, the Tribunal rejected the Applicant’s assertion that the confidentiality clause did not prohibit her from disclosing the nature of the complaint and the Respondents’ names. In other words, the Tribunal found that the confidentiality clause in the present case was broader than what the Applicant was asserting. Similarly, in the other cases cited by the Applicant, there was no provision, as there is in the present case, that any issues between the parties were resolved on a confidential basis. Therefore, those cases are distinguishable from the present case.

[55] While the Tribunal did not refer explicitly to the cases cited by the Applicant, that does not render their decision unreasonable. As the Supreme Court of Canada noted in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), “[r]easons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.”[^15]

Issue Three: Did the Tribunal Unreasonably Find a Breach of the Non-Disparagement Provision?

[56] The Applicant argues that the Tribunal’s finding that she breached the non-disparagement clause was unreasonable because the Tribunal applied an improperly low threshold for the interpretation of “disparagement”, failed to consider the LinkedIn statement in context, and interpreted disparagement in a manner that is at odds with the case law and the purposes of the Code.

[57] For ease of reference, the parties’ non-disparagement clause provides as follows:

7. Mutual Non-Disparagement: The parties agree that the purpose of this Settlement is to resolve any issues the Applicant has with the Respondents on a confidential basis and without any disparagement of the parties. Accordingly, the parties agree to refrain from making any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party’s reputation in the eyes of customers, regulators, the general public, or employees, unless required by law. This non-disparagement includes but is not limited to any electronic communications through social media (such as Facebook, Twitter, Instagram, Youtube, Snapchat, etc.) [Emphasis added.]

[58] In oral argument, counsel for the Applicant argued that the Tribunal conflated the confidentiality and non-disparagement clauses and failed to make independent findings on both provisions. In essence, counsel stated that the finding of a breach of confidentiality tainted the Tribunal’s finding on non-disparagement. If the Tribunal had undertaken a contextual analysis of the actual statement made by the Applicant on LinkedIn, the Tribunal would not have concluded that it was likely to damage the Respondents’ reputation.

[59] We disagree. The Tribunal considered the wording of the Applicant’s LinkedIn post and found that “from the perspective of an objective, reasonable person, placing such information on social media serves to publicize it and create a reputationally damaging link between the names of the parties and the serious unproven allegations of human rights violation of sex discrimination”.[^16]

[60] In coming to this conclusion, the Tribunal applied the definition of “disparagement” provided in the non-disparagement clause which was “any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party's reputation in the eyes of customers, regulators, the general public, or employees” (emphasis added).[^17] The clause did not require a finding of actual damage. Rather, the question was whether it was likely to do so. The Tribunal found that it was. This conclusion was within the Tribunal’s purview to make, and it is entitled to deference.

[61] The Applicant states that other Tribunal members as well as the Ontario Superior Court of Justice have found that reference to the settlement of a human rights application does not constitute “disparagement”.[^18] That may be the case, but the fact that other decision-makers have arrived at different conclusions from the Tribunal in this case does not mean that the Tribunal’s decision was unreasonable. The Tribunal made factual findings based on the specific language of the MOS. Those findings, when read together with the reasons provided for it, were reasonable.[^19]

[62] Given that the Tribunal’s conclusion was based on the contractual language agreed to by the parties, we do not find that the Original Decision creates “a dangerous precedent” as alleged by the Applicant. The parties to a settlement agreement are free to agree to different wording than was found in the present MOS. The Applicant was represented by counsel during the negotiations that led to the MOS and therefore had the benefit of legal advice when she agreed to the wording of the non-disparagement and confidentiality clauses.

Issue Four: Did the Tribunal Unreasonably Restrict its Remedial Discretion under s. 45.9(8) of the Code?

[63] The Applicant argues that if this court upholds the Tribunal’s findings of a breach, then the court should find that the Tribunal’s decision to order the Applicant to repay the entire settlement amount is unreasonable. In particular, the Applicant argues that the Tribunal unreasonably restricted its remedial analysis to whether the Respondents were required to prove harm and whether the liquidated damages clause was strictly enforceable at common law, thereby fettering its broad remedial discretion under s. 45.9(8) of the Code.

[64] Section 45.9(8) of the Code reads as follows:

If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

[65] The exercise of the Tribunal’s discretion under s. 45.9(8) of the Code is entitled to deference. However, as this court stated in Pereira v. Hamilton Police Services Board, “where the statutory scheme gives a decision maker a wide discretion, it is unreasonable for that decision maker to fetter that discretion without regard for the purpose for which the discretion was given.”[^20] In this case, we find that the Tribunal did not fetter its remedial discretion. The Tribunal may have explained its reasoning in contractual terms, but it clearly considered the Applicant’s argument that the goals of the Code were remedial in nature, rather than punitive.

[66] The Tribunal considered whether the repayment of the settlement payment, as agreed to by the parties, would be punitive. Quoting from the decision in Zander Sod Company Limited v. Solmar Development Corp., 2011 ONSC 7, 6 R.P.R. (5th) 116, at para. 122, the Tribunal held that parties “should be held, on the plain and ordinary interpretation of their language, to have intended that the specific sum was a genuine pre-estimate of damages, unless a contrary intention was shown.” The Tribunal held that no contrary intention had been made out. The Tribunal carefully considered whether the clause was a disguised penalty clause and therefore punitive in nature. The Tribunal found that it was not.

[67] The Tribunal also considered whether the MOS were unconscionable, whether there was evidence of inequality of bargaining power, or whether the MOS displayed a degree of unfairness. The Tribunal found that none of those factors applied to militate against the imposition of the liquidated damages clause. In the words of the Tribunal:

The specified amount is an amount freely agreed to by the parties. The MOS contains an “Understanding” clause in which the (then) applicant declared that they had an opportunity to obtain independent legal advice; they fully understand the obligations under the MOS; and voluntarily accept the terms and conditions set out in the MOS. The respondent (then applicant) was represented by counsel throughout the settlement process. Accordingly, the respondent agreed not only to the terms of the breach clause, but to the characterization of the repayment of the settlement amount as liquidated damages.[^21]

[68] The Tribunal also found that the Applicant’s breach was serious and went to the core of the agreement to maintain confidentiality. The Tribunal rejected the Applicant’s argument, which she has repeated on judicial review, that the breach was de minimis. The Tribunal made specific findings that the Applicant’s explanation for the breach was unconvincing and disingenuous. The Tribunal found that the purpose of the posting was not to explain a gap in the Applicant’s job history, but rather “to publicize albeit limited, but objectively damaging details of their allegations in their, by that point, settled human rights Application.”[^22] Those findings were open to the Tribunal to make.

[69] Finally, the Tribunal held that the Respondents were not unjustly enriched by the return of the settlement payment. The Tribunal found that the Respondents had been exposed to reputational damage and the compensation for that was pre-determined, on consent, to be the amount of the settlement payment.

[70] The Tribunal’s reasoning on the monetary penalty in the Original Decision is clear, cogent, internally consistent, and logical. The Tribunal demonstrated that it exercised its discretion in determining whether to order the full quantum of liquidated damages, agreed to by the parties. The Tribunal’s decision not to reduce the quantum of damages was fully explained by the finding that the breach was serious and that it was important to convey the message that settlement agreements must be respected.

[71] In the Reconsideration Decision, the Tribunal again addressed the Applicant’s arguments that the requirement to repay the settlement money was inconsistent with Tribunal jurisprudence. The Tribunal referred to one of the cases cited by the Applicant - Lagana v. Saputo Dairy Products Canada G.P., 2013 HRTO 309 - and noted that the decision was about a discrimination complaint and not the contravention of a settlement. The Tribunal also cited another Tribunal decision, Tremblay v. 1168531 Ontario Inc., in support of its decision to enforce the damages clause in the MOS.[^23] The Tribunal agreed with the statements made in Tremblay that if the confidentiality clauses in settlement agreements are not enforced, the parties may ignore them. This acts as a disincentive to the settlement of human rights complaints.

[72] The Tribunal also referenced this court’s decision in Wong v. Globe and Mail Inc., 2014 ONSC 6372, 123 O.R. (3d) 28 (Div. Ct.), in which the court dismissed an Application for Judicial Review of an arbitral decision, finding that a repayment provision similar to the one in the present case was not a penalty clause and was not unconscionable. The court found that the arbitrator reasonably concluded that the repayment provision was an enforcement mechanism designed to ensure that the Applicant lived up to the confidentiality provision, which was extremely important to the employer. Thus, we find that the Tribunal did not ignore the relevant jurisprudence on this point.

[73] In her written argument, the Applicant cites decisions in which the Tribunal has exercised its discretion under s. 45.9(8) of the Code to modify the remedy for contravening a settlement agreement. In all those decisions except one, the Tribunal found there to have been only minor contraventions of the settlement agreements.[^24] Those cases are thus distinguishable from the present case, where the Tribunal held that the breach was a serious one. Furthermore, the court will not intervene when the Tribunal reaches a conclusion that is at odds with other cases from the same administrative agency. As noted above, it is only when the Tribunal deviates from a well-established and longstanding line of case law that the reasonableness of the decision is called into question.[^25] The Tribunal did not deviate from well-established jurisprudence on this point.

[74] The Tribunal’s Reconsideration Decision was reasonable and is entitled to a high degree of deference.[^26]

Issue Five: Was the Tribunal’s Decision to Grant the Respondents’ Request for Anonymization Unreasonable?

[75] The Tribunal granted the Respondents’ request for anonymization pursuant to r. 3.11 of the Tribunal's Rules of Procedure. That rule gives the Tribunal the discretion to make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal's discretionary decision to grant anonymization is owed substantial deference.[^27] There is nothing in the Tribunal’s reasoning on this issue that causes us to question whether judicial deference is appropriate in this case.[^28]

[76] The Tribunal did not assume that allegations of sex discrimination automatically trigger anonymization. Rather, the Tribunal applied the appropriate test for limitations on the open court principle described by the Supreme Court of Canada in Sherman Estate v. Donovan[^29] and its own jurisprudence in determining whether to exercise its discretion to order anonymization.[^30] The Tribunal’s reasons provide a logical and clear path to its conclusions.

[77] The Applicant takes issue with the Tribunal’s conclusion that the Applicant’s statement that her sex discrimination complaint against the Respondents was resolved constituted “personal or sensitive information”. However, we note that in one of the Tribunal decisions cited by the Applicant, the Tribunal stated that “it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma.”[^31] Similarly, in the present case, the Tribunal found that the allegations of sex discrimination could negatively impact on the Respondents’ privacy and reputational interests. Although the Applicant stated publicly that the allegations of sex discrimination were resolved, this does not mean that they were disproven. The Tribunal’s finding that the publication of the Respondents’ names in association with the nature of the complaint constituted sensitive information is within the range of possible and reasonable outcomes.

[78] The Applicant also challenges the Tribunal’s conclusion that anonymization was necessary to mitigate the impact of the statement on the Respondents’ reputation. The Applicant argues that this conclusion is contrary to an established line of Tribunal jurisprudence holding that a negative impact on a party’s reputational interests is not enough to warrant anonymization.[^32]

[79] The cases cited by the Applicant do not establish that in the context of COS applications, the possibility of reputational damage will never be sufficient to ground an order for anonymization. Rather, in the context of the adjudication of human rights complaints, the Tribunal has stated that there is a strong public interest in a transparent legal process that allows for the public scrutiny of the way that the quasi-constitutional rights enshrined in the Code are adjudicated.[^33] However, as the Tribunal noted in this case, there are other public interest considerations at play in the context of COS applications, notably the public interest in promoting the settlement of human rights complaints and in ensuring that the terms of a settlement are respected.[^34]

[80] In the present case, the Tribunal held that if it permitted the republication of the Respondents’ names in association with the allegations of sex discrimination, it would discourage, rather than promote, future settlements. According to the Tribunal, an anonymization order would mitigate the damage done by the breach of the MOS by “putting the brake on further publicization of the information and reinforcing that the Tribunal takes the upholding of settlements seriously”.[^35]

[81] The fact that the Tribunal has reached a different conclusion in another case on anonymization in the context of a COS application does not make the Tribunal’s decision in the present case unreasonable.[^36] The Tribunal gave due consideration to the legal and factual context as well as the policy considerations in exercising its discretion to order anonymization. The Tribunal’s Original Decision on this point is entitled to deference from this court.

Conclusion and Costs

[82] The application for judicial review is dismissed.

[83] As the parties agreed, the Respondents, L.C. and L.C.C., are jointly entitled to $15,000 in costs. They will decide between themselves how to apportion those costs. No costs are awarded for or against the Tribunal.

___________________________ Jensen J.

I agree ___________________________ Lococo J.

I agree ___________________________ Davies J.

Date of Release: February 4, 2025

[^1]: Unless the context otherwise requires, reference to the “Respondents” in these reasons means L.C. and L.C.C. but not the Tribunal.

[^2]: The human rights application is referred to in these reasons as “the human rights complaint” because that is how the Applicant referred to it in her LinkedIn post, which was the subject of the Decisions.

[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 13.

[^4]: Vavilov, at para. 85.

[^5]: Vavilov, at paras. 31, 92-93.

[^6]: Vavilov, at para. 100.

[^7]: The Applicant provided the following examples of critiques of NDAs: Abigail Stephens, “Contracting Away the First Amendment?: When Courts Should Intervene in Nondisclosure Agreements” (2019) 28 William & Mary Bill of Rights Journal 541; Jingxi Zhai, “Breaking the Silent Treatment: The Contractual Enforceability of Non-Disclosure Agreements for Workplace Sexual Harassment Settlements”, (2020) 2020 Columbia Business Law Review 396; and Manette Asta, “For the Workers: Banning Non-Disclosure Agreements in Harassment and Discrimination Settlements”, (2023) 51 Capital University Law Review 400.

[^8]: Vavilov, at para. 113.

[^9]: Prince Edward Island recently adopted the Non-Disclosure Agreements Act, R.S.P.E.I. 1988, c. N-3.02, which renders unenforceable any NDA arising in the context of an allegation of discrimination if the agreement would adversely affect the public interest, and British Columbia recently introduced a Bill that closely resembles PEI's: Bill M-215, Non- Disclosure Agreements Act, 4th Sess, 42nd Parl, British Columbia, 2023 (first reading March 9 2023).

[^10]: The Reconsideration Decision dealt with the remedy ordered by the Tribunal for breach of the MOS. It did not deal with the breach itself. Therefore, only the Original Decision will be considered under Issues One and Two.

[^11]: Sativa Capital Corp. v. Creston Moly Corp, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 24, 60.

[^12]: The Applicant also cites Morley v. London Condominium Corporation #2, 2014 HRTO 371 and Shaw v. York Condominium Corporation No. 73, 2013 HRTO 1565.

[^13]: Vavilov, at para. 129. While recognizing the importance of consistency, the Supreme Court of Canada held in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), 1993 106 (SCC), [1993] 2 S.C.R. 756, at p. 800, that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals” and the result of reasonableness review is that there may be inconsistent approaches.

[^14]: Vavilov, at para. 131.

[^15]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16.

[^16]: Original Decision, at para. 40.

[^17]: Original Decision, at paras. 38 & 39.

[^18]: Clements, at para. 19. Similarly, the decisions in Nobul Technologies Inc. v. Reed, 2023 ONSC 5316, 47 B.L.R. (6th) 331 and Clarke v. Ottawa Police Services Board, 2020 HRTO 91, turned on the particular facts and contractual language in those cases.

[^19]: Newfoundland Nurses’ Union, at para. 14.

[^20]: Pereira v. Hamilton Police Services Board, 2022 ONSC 4150 (Div. Ct.), at para. 34.

[^21]: Original Decision, at para. 72.

[^22]: Original Decision, at para. 49.

[^23]: Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939, at para. 30.

[^24]: Matos v. Transplay, 2010 HRTO 2527, at para. 17; Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, at para. 42; and Mailloux v. Marian Villa, Mount Hope Centre for Long Term Care, St. Joseph's Health Centre, 2015 HRTO 1316, at para. 45. In Tremblay, the Tribunal found a breach of the confidentiality provision, but reduced the remedy by $1,000 because the Applicant had not disclosed the amount of the monetary settlement.

[^25]: Vavilov, at para. 131.

[^26]: James v. York University, 2015 ONSC 2234, 339 O.A.C. 68 (Div. Ct.), at paras. 56-60; Mohmand v. Ontario (Human Rights Tribunal), 2021 ONSC 528 (Div. Ct.), at para. 19.

[^27]: Pereira, at para. 9.

[^28]: The Tribunal was not asked to reconsider its decision on anonymization. Therefore, only the Tribunal’s Original Decision was subject to review on this point.

[^29]: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, cited by the Tribunal in the Original Decision, at para. 91.

[^30]: See e.g. R.L.H. v. Disabled and Aged Regional Transit System (DARTS), 2020 HRTO 552, at para. 6.

[^31]: C.M. v. York Region District School Board, 2009 HRTO 735, at para. 20.

[^32]: Bartlett v. Hydro One Networks, 2012 HRTO 212, at para. 39; Bandhu v. Ontario (Solicitor General), 2021 HRTO 274, at paras. 51-53; C.M., at para. 20; Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974.

[^33]: C.M., at para. 20; Mancebo-Munoz, at para. 4.

[^34]: Original Decision, at para. 97.

[^35]: Original Decision, at para. 98.

[^36]: Bandhu was the only case provided by the Applicant that dealt with an anonymization order in the context of a COS application. In that case, the Tribunal denied the Applicant’s request for anonymization. The Applicant was a racialized man in his early fifties who stated that he would be exposed to further systemic discrimination and reprisal if the anonymization request was not granted. The issues raised in that case are not similar to those in the present case.