Lawyers across Canada approve landmark resolution to prevent abuse of non-disclosure agreements
Lawyers across Canada have voted for a resolution urging non-disclosure agreements, known as NDAs, to no longer be used as a tool to silence those who come forward after experiencing abuse, harassment and discrimination.
The Canadian Bar Association quickly passed the resolution with a 94 percent majority and little debate at its annual general meeting on Thursday, according to Julie Macfarlane, professor emeritus at the University of Windsor Law School and co-founder of the Can’t Buy My Silence campaign.
“NDAs have become a standard in settlement agreements over the past decade and this shows a shift in thinking is taking place,” said Macfarlane.
The resolution came in part from a campaign founded by Macfarlane and Zelda Perkins. Perkins later signed and broke an NDA with disgraced former film producer and convicted sex offender Harvey Weinstein.
NDAs are legal contracts in which individuals agree to keep the information described in the agreement strictly confidential. Typically signed by two people, the contracts were originally used to protect trade secrets in the workplace but have become a common tool to silence victims and protect offenders.
They can also prevent survivors from talking about their experiences with family, friends, and therapists. Employers can be left in the dark about an employee’s past actions at previous jobs, allowing them to continue their harmful behavior.
“They’ve become much more ubiquitous and almost like a standard clause in many agreements,” said Vancouver attorney Jo-Anne Stark, who filed the motion.
“It ends up almost creating a toxic work environment.”
Macfarlane says she finds the vote within the legal profession encouraging.
“They’ve heard from a lot of people who have been silenced by non-disclosure agreements for years about the damage it’s caused, and they’ve thought twice.”
Although the CBA’s resolution isn’t law, Macfarlane says it removes an obstacle from the government, the opposition, the legal profession, and sends a strong message.
Canadian lawyers spoke out in favor of the resolution during Thursday’s meeting. Some have spoken of clients contacting them years after signing a non-disclosure agreement, asking if they had any options to be released from their contract and complaining that they did not fully understand the paperwork involved in signing it.
Other lawyers have expressed frustration after hearing stories of abusers protected by NDAs who continue to commit abuse and evade accountability.
With the vote, the Bar Association committed to banning the use of NDAs to silence victims and whistleblowers who come forward to report abuse, harassment and discrimination.
Stark said the association will advocate and lobby for laws and policies related to NDAs at the federal, provincial and territorial levels.
“It is up to the legal profession to understand the implications of these agreements so that the negative impact is minimized,” Stark added.
Stark says she hopes the resolution will inspire companies to review the policies in their organizations.
“People need to look at their policies on what’s happening with these complaints, make sure the victim is getting the support they need, and make sure their documentation is consistent,” Stark said.
A turning point
Law professor Macfarlane said non-disclosure agreements should not exist in situations where there have been allegations of sexual misconduct, harassment, discrimination and other forms of injustice.
“Today, all sorts of things are hidden in non-disclosure agreements that aren’t trade secrets,” she said. “These are just bad things that either of these two parties don’t want the public to know about.”
In recent months, Hockey Canada has come under fire when it was revealed that non-disclosure agreements had been used in some settlements involving allegations of sexual assault.
In BC, Macfarlane said it took 12 months for Thompson Rivers University to release complainants from their NDAs to be part of an investigation into bullying and harassment claims involving two senior executives.
“They were released only for the period of the investigation, while I believe they should be released permanently as non-disclosure agreements have no place to cover up allegations of misconduct at our public universities,” she said.
Last July, Prince Edward Island became the first province to restrict the use of NDAs. Similar laws were introduced in Nova Scotia and Manitoba.
In December, US President Joe Biden signed legislation banning the use of NDAs in relation to sexual harassment and assault. Congress had found that 81 percent of women and 43 percent of men had experienced sexual harassment and assault in the workplace and believed that NDAs erroneously prohibited these individuals from speaking up and reporting the behavior.