At Can’t Buy My Silence, the advocacy organization campaigning for restrictions on non-disclosure agreements to cover up wrongdoing, we have received many, many messages from people who are being pressured to sign these agreements, which are now default in settlements for workplace and civil or human rights claims regarding sexual misconduct and discrimination.  

Public awareness of these clauses has grown exponentially in the four years since our campaign began. Back then, we heard from people only after they had signed, and often months later when they finally felt emotionally ready to read through what they signed. They had routinely been told that these clauses would “bring closure.”

As anyone who has signed one will tell you (you can review our 140-plus testimonies online), closure is the opposite of what a non-disclosure agreement (NDA) brings. Instead, it remains a dark shadow cast over the original incident and its “resolution,” which they can never speak of—typically often even to family, friends, or even a therapist without a specially negotiated exception, for which the victim remains responsible and lives in fear of an inadvertent breach. 

Despite growing visible public anger over the manipulation and obfuscation Canadians experience with NDAs, and rapid legislative change around the world to protect victims, Canada remains unwilling to change.

Senate Bill S-232 is proceeding slowly, still short of a vote. The only province to have passed legislation remains Prince Edward Island, which took this decisive step in 2021. The objections to legislation remain mired in out-of-date and inaccurate claims about the dire consequences of giving victims the right to speak about their experiences. 

As 35 American states, England and Wales, Ireland, and the Australian state of Victoria move forward—in the United States, at a dizzying rate—with legislation, Canadian politicians remain on the fence. Research post-legislation shows clearly and consistently that settlement rates do not go down without NDAs, and neither do monetary settlements (perhaps the public servants who are complaining about Senator Marilou McPhedran’s Bill S-232 should inform themselves). Filings, however, increase (for obvious reasons). Moreover, several studies, including our own research data, show the disproportionate impact on the most vulnerable in our community, including women, racialized minorities, members of the LGBTQ2S+, Indigenous communities, junior employees and those at the end of their working life, people with disabilities, etc. Unsurprising, given that NDAs exacerbate an existing power imbalance by requiring silence from the vulnerable, who are having to learn how to fight back.

Meanwhile, the Uniform Law Conference of Canada (ULCC), which has been meeting for almost four years on this issue, is still trying to come up with a model bill. The sad part is that they are working with four-year-old models which are now clearly outdated. Even if the ULCC does finally produce a model bill this August, it will be the “conditions approach,” which was how some of the earliest legislation was framed.

The “conditions approach” allowed NDAs to continue to be signed if they met certain conditions. In 2023, this approach seemed like the best that could be done, while some continued to assert that NDAs were “good for victims.” In the last four years I have never spoken with an NDA signer who would agree. The “complainant’s preference” condition responds to the claim that restricting NDAs takes “choices” or agency away from victims. As the hundreds and hundreds of NDA signers we have heard from will tell you, they were not offered an alternative: a confidentiality clause that protects them alone, without requiring them to protect the perpetrator or responsible organization in exchange. In short, the conditions approach has not offered the best protection for victims against NDAs. 

Instead of the “conditions approach,” the dominant model of lawmaking now is the “straightforward ban” approach. It is far simpler and clearer: you cannot use an NDA in any case of sexual misconduct or discrimination. No exceptions. No potential for victims to be persuaded it is their “preference” in the absence of other information. The criticism of this condition in particular has led to several jurisdictions that had originally adopted this approach now to replace that legislation with a straightforward ban. Better for victims, better for government. 

It is long past time for Canada to get off the fence. How good do we feel that our political awareness of the toxicity of NDAs now falls well behind Utah, Texas, Missouri, Georgia, Alabama … the list goes on.

When the response at the highest levels of political decision-making remains “getting rid of NDAs (retroactively) will lead to false allegations against politicians,” we know we are in trouble. The “false allegations” claim is a trope widely disproved by police reporting figures, among others. And this hasn’t happened in any of these other jurisdictions where legislation has been retroactive—or at the University of Prince Edward Island, which went further than their legislation to release all previous signers.

What happened? There were no “revenge posts” online. As Shannon MacDonald, the chair of the Board of Governors of UPEI, puts it: “When we still used NDAs, there was anger among signers who were the victims of bad behaviour. There were flare-ups and a high level of frustration. NDAs created anger among victims, and in many ways seemed counterproductive. Now, it is quite the opposite.” In the words of UPEI president Wendy Rodgers: “This is about ensuring we are not reproducing situations that resulted or contributed to any kind of wrongdoing or harm. … [I]t is important for victims to be able to speak out about misconduct of many types to prevent others going down the same path with the same individual and to inform the development of future policies.”

Please step up, Canada. We want to be proud of you.

Dr. Julie Macfarlane C.M., is the director of Can’t Buy My Silence Canada.

The Hill Times

The post It’s time for Canada to get off the fence with NDAs appeared first on The Hill Times.

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