There are growing calls to outlaw non-disclosure agreements across the country as Hockey Canada and other sports organizations reel from sexual assault scandals, including some that led to multi-million dollar payouts to keep details about the incidents secret.
Non-disclosure agreements can prohibit sexual assault complainants from speaking publicly about their allegations in exchange for a settlement.
University of Windsor law professor Julie Macfarlane has helped provinces draft legislation to prevent the abuse of non-disclosure agreements (NDAs). She’s now advocating for the federal government to do the same.
“The Hockey Canada story has illustrated the pervasiveness and the ubiquity of non-disclosure agreements in just pushing everything back under the rug again,” said Macfarlane who is the co-founder of a campaign called “Can’t Buy My Silence.”
“There’s no identification of the perpetrator and no consequences that are known. This gives them permission to continue to behave in the same way.”
Before Hockey Canada put a new spotlight on the issue, P.E.I. became the first province in May to limit the use of NDAs involving discrimination and harassment allegations including sexual misconduct. NDAs can now only be imposed in these cases in P.E.I. if a complainant wants one.
Manitoba and Nova Scotia introduced similar bills this year. Senator Marilou McPhedran said she also plans to table a federal bill in the Senate next month.
Amid the movement to regulate NDAs, the federal labour minister’s office said it’s engaging with stakeholders, but there are currently no plans to change the law.
The Minister of Sport, Pascale St-Onge, has said spoken out against NDAs and said a review into funding for sports organizations will examine the issue.
WATCH | Woman at centre of Hockey Canada lawsuit breaks silence
Hockey Canada is the latest organization to come under fire for its use of NDAs to settle some sexual assault allegations.
The hockey organization recently released a woman from her confidentiality agreement, a day ahead of a parliamentary committee where MPs grilled Hockey Canada’s executives about its handling of the case.
The woman had filed a $3.5 million lawsuit in April alleging she was sexually assaulted in 2018 by eight Canadian Hockey League players including members of the World Junior team.
As part of the settlement, the woman signed an agreement prohibiting her from talking about the allegations. But the agreement allowed her to communicate her wishes to stay out of the public debate, her lawyer Rob Talach told CBC News on Tuesday.
‘A visceral, outright ban…will ultimately hurt some survivors’
Talach said his client’s case has sparked an “important discussion” about NDAs in Canada, but he’s concerned a full ban on NDAs could limit some victims’ options during negotiations.
“I think a visceral, outright ban of the NDA will ultimately hurt some survivors,” Talach told CBC News. “It may result in some survivors getting nothing because there’s nothing to trade for.”
Talach has represented sexual abuse complainants for almost 20 years and says he generally doesn’t negotiate NDAs, except if the agreement seeks only to limit his clients from disclosing how much money they received, a tactic that he says can protect defendants from “splashy headlines.”
He also said, legally, NDAs cannot prevent complainants from speaking to police or seeking therapy.
WATCH | Hockey Canada drops NDA with complainant in alleged sexual assault case.
Talach would prefer to see a judge at the Superior Court of Justice oversee the granting of NDAs in exceptional cases.
“If the parties can’t convince the judge that the NDA is fair and mutually agreed upon, then it doesn’t happen,” he said.
NDAs can mean larger settlements, says lawyer
Toronto-based lawyer Howard Levitt says he’s negotiated hundreds of NDAs for various issues and that employers or companies would unlikely provide adequate settlements without them.
“I can get a woman oftentimes $1 million plus settlements,” said Levitt. “If there wasn’t an NDA I’d get a tenth of that or less.”
Companies are paying to protect their reputation, said Levitt. If a complainant receives a substantial settlement, Levitt said, then goes out and “defames” them or “viciously talk about their experience” they “aren’t getting value for what they’re paying for.”
Lynne Lund, a Green MLA in P.E.I., says that silence is allowing sexual misconduct to fester and “predators to stay hidden in plain sight.”
“When organizations have the ability to silence people, to gag people, they will always choose to protect their reputation over protecting the general public,” said Lund.
She introduced the bill restricting the use of NDAs in her province and is now offering to help politicians of any political stripe in any province to draft similar bills.
“It’s been a huge comfort to people who signed NDAs in the past to know it’s not going to happen to people in the future,” she said. “Every province needs to tackle this issue. Hockey Canada is doing a really good job making that point for me.”
Woman who signed NDA calls it ‘unethical, immoral’
A B.C. woman signed a non-disclosure agreement two years ago and calls it “unethical, immoral and damaging.”
She reported to her workplace that her boss was repeatedly sexually harassing her on the job. CBC News agreed to keep her name confidential over her concerns about potential legal repercussions.
The woman said she reported her allegations because she wanted an apology and for action to be taken. But instead, she said the university in B.C. where she worked offered her a settlement that allowed her boss to keep his job, but forced her to leave.
She said her lawyer told her she had no option but to sign the NDA if she wanted a settlement. She unsuccessfully tried to negotiate an exception, she said.
“I said ‘what if this happens again and another victim finds me and then comes to me?,'” she recalled asking her employer. “Can I share my story with that person? The answer was no…It made me feel sick”
In a statement, the office of the minister of labour said new requirements for employers went into effect in January to prevent harassment and violence in federally regulated workplaces. The new measures will be reviewed within five years.
A senior government source with knowledge of the file says a preliminary legal analysis shows banning NDAs could pose a jurisdictional risk because it falls under the provinces’ responsibility and further legal analysis is needed.
The review into federally-funded sports organizations is scheduled to be completed with new changes in effect by April 2023.