B.C. Greens introduce bill that would ban NDAs in harassment and discrimination cases

NDAs have 'become tools to silence victims of workplace discrimination and harassment — including sexual harassment, racism, ableism or other forms,' Green Party Leader Sonia Furstenau said. (Michael McArthur/CBC - image credit)
NDAs have 'become tools to silence victims of workplace discrimination and harassment — including sexual harassment, racism, ableism or other forms,' Green Party Leader Sonia Furstenau said. (Michael McArthur/CBC - image credit)

B.C. Green Party Leader Sonia Furstenau has tabled legislation that would ban the use of non-disclosure agreements in cases of harassment and discrimination, a move that one advocate called "a fundamental shift in justice."

The bill, introduced in the legislature Thursday morning, follows a similar law enacted in Prince Edward Island last year, and proposed legislation in Nova Scotia and Manitoba.

Furstenau said NDAs were originally developed to protect trade secrets, but now they're largely used to silence victims of abuse.

"The widespread use of these has implications for people in their employment, for their mental health, for their health and well-being," she told reporters.

"Not being able to talk about something that happened to you, even with family members, is adding to the harm that people have experienced."

The Green leader announced the private member's bill on Wednesday in Vancouver at a screening of the movie She Said, which tells the story of the journalists who exposed Hollywood producer Harvey Weinstein's pattern of sexual abuse and use of NDAs to hide evidence of his crimes.

The screening was organized by the Can't Buy My Silence campaign to limit the use of NDAs worldwide.

Campaign co-founder Julie Macfarlane, a professor emerita of the University of Windsor in Ontario, said she was "absolutely thrilled" by news of the proposed B.C. bill.

"Every single day in British Columbia, more people are being pressed into NDAs," she said.

"We hear endless stories of people being put under enormous amounts of pressure to sign these agreements, which are completely unnecessary and then sit like a monkey on their back for the rest of their lives."

Both Furstenau and Macfarlane cited Hockey Canada's use of NDAs in cases of sexual assault as an example of how the agreements are misused.

'We've been waiting 25 years'

For those whose lives have been restrained by NDAs, news of the bill comes with mixed feelings.

Susan MacRae and Sherri Thomson both signed agreements decades ago that prevent them from talking about their experiences of childhood sex abuse.

The two women travelled to Victoria together on Thursday to see the bill introduced.

"We've been waiting 25 years for somebody to correct this wrong," MacRae said. "It's a lot of emotions ranging from anger, sadness, frustration, but … I'm really happy that it's finally coming forward."

In 2018, a B.C. judge dismissed MacRae's application to nullify the NDA she'd signed with her father in 1997 as part of a legal settlement over allegations of sexual abuse, even though her father was dead, according to court documents.

Ben Nelms/CBC
Ben Nelms/CBC

Thomson, who lives in Ontario, was sued in 2016 by her stepfather Ronald Wilke and mother Eileen Wilke, then a village councillor in Lions Bay, B.C., for publicly sharing details about her childhood sexual abuse allegations in defiance of an NDA.

Thomson said she's not going to let up on the pressure to change laws across the country.

"It's a fundamental shift in justice, and it feels really good, but it's not done," she said of the B.C. bill.

"We've been burned too many times."

Advocates hope to 'light a fire' in government

Can't Buy My Silence representatives told CBC last year that they had been meeting regularly with government officials to discuss changes to B.C. law. In July, the attorney general's office said the ministry was watching developments in other provinces before making any decisions.

Macfarlane said Attorney General Niki Sharma has asked for a briefing on the issue next week, but she hopes the Green bill will build public pressure and "light a fire" under the government to take action.

"It's not passing unless the government steps in and adopts it, and Sonia knows that; we know that. But I think that it's very important that this is an expression of people's frustration that this legislation needs to be passed everywhere in Canada now," Macfarlane said.

Asked for comment Thursday, Sharma's office did not indicate whether the government would support the proposed legislation.

"I want to thank MLA Furstenau for bringing forward this bill. We are always looking for ways to better protect victims of harassment and discrimination in B.C.," a spokesperson wrote in an email.

Thomson said there's no reason why the Greens bill shouldn't receive non-partisan support.

"Everybody has to write their MLAs. It just has to be something that we as people expect our government to do for us," Thomson said.

"The only way it could slip away is if the focus goes away and people forget about it."

The proposed legislation follows a vote from the Canadian Bar Association last month in favour of a resolution to restrict the use of NDAs.

It also comes after news that Tiger Woods' girlfriend Erica Herman has asked a Florida court to nullify her NDA with the professional golfer. She has alleged that a trust controlled by Woods is attempting to silence her and is asking for the NDA to be thrown out under a new U.S. law that prohibits such agreements from being enforced when sexual assault or sexual harassment is involved.