Former B.C. Green leader Sonia Furstenau says the ­provincial government should pass ­legislation that prevents the misuse of non-disclosure agreements, such as in cases of sexual harassment, assault and discrimination.

“That should just really be so straightforward for them to do — the Canadian Bar Association is asking for it,” Furstenau said. “This is not something that is radical. This is overdue.”

Furstenau’s comments come after a report by a non-profit legal firm called the Community Legal Assistance Society was released this week, saying the increased use of NDAs contributes to silencing victims.

NDAs — legal agreements to prevent involved parties from sharing information about what happened — have ­commonly been used in business to protect corporate interests, but their use has expanded in some cases to silence victims of sexual harassment, assault and discrimination.

“NDAs used to protect trade secrets and whatever are fine, but to use them inappropriately in the case of sexual harassment or assault or discrimination … where the victims are silenced and the perpetrators are ­protected” has to change, said Furstenau said.

In B.C., the issue recently provoked debate when former Vancouver Symphony ­Orchestra violinist Esther Hwang told The Globe and Mail she was ­pressured to sign an NDA to ­settle a sexual-assault complaint against a member of the orchestra.

The Vancouver Symphony Orchestra took action against Hwang, but eventually agreed to no longer require confidentiality agreements in sexual-misconduct cases.

The Community Legal ­Assistance Society said its ­literature review, community consultation, workshops and survey of lawyers — not all of whom agreed with banning NDAs — revealed gender-based violence in workplaces and organizations is an “ongoing and serious problem” in B.C., despite efforts over the past 30 years to address it through workplace safety regulations, human rights laws, and employment law.

Its recommendations to the B.C. government include ­passing new legislation to ensure NDAs are invalid if a person was ­pressured into signing them.

They also want complainants to be allowed to report their experiences to authorities, obtain medical or mental health help, or share information to avoid negatively affecting their future employment.

The report said it found that most non-lawyers would like to see an outright ban on the use of NDAs, and most respondents, including lawyers, feel there should be strict, clearly defined limitations on the use of NDAs and exemptions.

It said NDAs in cases of ­workplace gender-based violence “have a very negative impact on most complainants,” although in some cases, the complainant’s need for privacy might outweigh the public interest to know about the perpetrator’s behaviour.

Provinces such as Prince Edward Island and Ontario have restricted NDAs, but B.C.’s NDP government has yet to move on the issue.

The B.C. Attorney General’s ministry said in a statement to the Times Colonist on Thursday that it’s considering changes.

The ministry said it ­recognizes non-disclosure ­agreements can be misused, “particularly when a survivor feels they have no choice to enter into one, or when the terms of the ­agreement seek to prevent them from disclosing the harm they suffered to family members, therapists or other trusted advisors.”

The ministry said it is “actively considering legislative options that consider these complex dynamics, while also monitoring developments on this issue in other jurisdictions,” to see what other measures might help better protect and support survivors of sexual and other forms of harassment, abuse and discrimination.

It said it will review the Community Legal Assistance Society’s recommendations and take them under consideration.

Furstenau said the province needs to look at its own use of NDAs, which she said it uses regularly, almost out of “habit.”

The B.C. government often requires individuals and organizations to sign confidentiality clauses to consult with it on provincial changes, on the grounds that it is sharing cabinet-level sensitive information, but Furstenau said legislation is already in place to protect cabinet confidence.

“The less often the public feels surprised by something coming out of government — because the engagement was done behind closed doors and using NDAs — the better,” said Furstenau, whose party twice introduced private members’ bills to restrict NDA usage that were not supported by the NDP government.

“We need the public to feel like what government is doing is visible and understandable, and you can be participating in the decisions that are being made, and we really see the opposite of that.”

When the province is ­meeting with the parents of kids with ­disabilities, for example, “do you really need to ask them to sign NDAs before you do a ­consultation with them?” she asked.

Use of NDAs by the B.C. government has been highly controversial for years, most recently last month, when local government and business organizations refused to sign provincial non-disclosure agreements on consultations on proposed amendments by the government to modernize the Heritage Conservation Act.

Organizations including the Union of B.C. Municipalities, Urban Development Institute, Association for Mineral Exploration, Mining Association of B.C., and Independent Contractors and Businesses Association issued a news release saying provincial officials offered stakeholders access to intended legislative changes to the act provided they sign a non-disclosure agreement.

Prince George Coun. Cori Ramsay said signing a ­non-disclosure agreement would only serve to silence the UBCM and limit its ability to ­communicate with members.

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