A private member’s bill tabled in the P.E.I. Legislature could make the province the first in Canada to limit the use of non-disclosure agreements, or NDAs, in cases of sexual misconduct.
The bill, put forward by Green MLA Lynne Lund, would allow an NDA to be part of a settlement agreement in cases of harassment or discrimination only “if such an agreement is the expressed wish and preference” of the person who brought forward the allegations.
The law would also require NDAs to include some mechanism for that person to be able to waive their own confidentiality requirement in the future.
The goal, according to proponents of the bill, is to address the power imbalance that often exists between those who come forward with allegations of having been harassed or abused and the people and institutions that, through the use of NDAs, effectively pay for their silence.
“You have to ask yourself: Whose interest is that serving?” said Lund.
“It creates an environment that allows serial harassers to stay hidden, because I have no way, if I’m the victim … of warning anyone else who might be coming into that workplace, into that situation, into that atmosphere, that this is an ongoing problem.”
It produces a Weinstein situation, where there is repetition of misconduct, it’s concealed and then we find out after the fact there have been multiple victims.— Elizabeth Grace, lawyer
In the wake of the Me Too movement and the Harvey Weinstein scandal in the U.S., similar legislation has been brought forward in a number of American states, in the U.K. and in Ireland. But no Canadian jurisdiction has so far put forward legislation to limit the use of NDAs.
Pacts ‘remove a choice’
Toronto-based lawyer Elizabeth Grace has been representing clients in these disputes for more than 25 years, and said she believes the time has come for the type of legislation put forward in P.E.I.
In a letter endorsing the legislation, Grace wrote that overreaching confidentiality clauses in settlements “restrict survivors’ freedom of speech and remove a choice that should be theirs, which is to communicate what they endured if, when, to whom, and how they want.”
In an interview, Grace said there’s a broader public interest that’s stifled when information about sexual misconduct is repressed, because such silence can allow that misconduct to continue.
“It produces a Weinstein situation, where there is repetition of misconduct, it’s concealed and then we find out after the fact there have been multiple victims,” she said.
Another supporter of the bill, Julie Macfarlane, said the phenomenon has become known as “pass the trash,” in which an employee who might be guilty of misconduct is quietly shuffled off to another institution where they could offend again.
Macfarlane, a faculty member with the school of law at the University of Windsor, said institutions are also often keen to enter into NDAs in cases of potential misconduct involving a staff member to try to protect their own reputations.
But she said that can put the safety of the public at risk.
“The public has a stake in having a safe workplace, in having safe schools, safe universities, safe hospitals,” she said.
Limits needed, says law prof
Macfarlane is co-founder of the international campaign Can’t Buy My Silence, which seeks to end the use of NDAs as a tool to silence victims. She said there has been “exponential growth” in their use in recent years, but also a growing awareness around the need to legislate limits.
She noted some interest among MLAs in Manitoba in bringing forward similar legislation, along with efforts in the Senate to bring forward federal legislation.
The Greens form the Official Opposition in P.E.I.’s Legislature. In order to pass, Lund’s bill would require support from other parties, including the governing Progressive Conservatives, who have said they’ll allow their members a free vote on the matter if and when a vote is called.
If P.E.I.’s legislation passes, Grace said it will set “an important precedent” for the rest of the country.
If the legislation doesn’t pass, it will at least push forward a discussion on a topic on which Canada lags “way behind” other jurisdictions.
“It is time to engage and have this important discussion here in this country, and I applaud P.E.I. for being the first in Canada to do so,” said Grace.