“Broad” Non Disparagement Clause Makes Settlement Agreement “Unjust to Enforce”
Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, finding that the settlement of a personal injury claim could be set aside given the inclusion of a broad non disparagement clause.
In today’s case (Wannan v. Hutchison) the Plaintiff sued for damages for injury and loss she alleges to have suffered as a result of naturopathic treatments performed on her by the defendant. In the course of the lawsuit the Defendant presented a formal settlement offer which the Plaintiff, through her counsel, accepted. As part of the settlement a release had to be signed which included a confidentiality and non-disparagement clause. After accepting the offer the Plaintiff objected to the broad language contained in the non disparagement clause as it prevented her from voicing her concerns about the treatments she received.
The Defendant brought an application to enforce the settlement. The court rejected this finding that “that this is one of those rare cases in which it would be unjust to enforce the agreement.”. In refusing to enforce the settlement Madam Justice Murray provided the following reasons: