New bill before the Senate would crack down on non-disclosure agreements

·4 min read
Sen. Marilou McPhedran has introduced a new bill aimed at limiting the use of non-disclosure agreements she says are used to protect perpetrators of abuse. (The Canadian Press - image credit)
Sen. Marilou McPhedran has introduced a new bill aimed at limiting the use of non-disclosure agreements she says are used to protect perpetrators of abuse. (The Canadian Press - image credit)

A new bill tabled in the Senate Tuesday would curb the use of non-disclosure agreements that force employees to remain silent about harassment, violence or discrimination in the workplace.

The "Can't Buy Silence Act," introduced by Sen. Marilou McPhedran, would apply to Canada's public service and any organization that receives federal funding, including Crown corporations like CBC News and non-governmental national sport organizations like Hockey Canada.

McPhedran said the bill would change federal law to bar the federal public service and organizations receiving federal funding from employing NDAs in a range of cases.

The bill also would prevent those organizations from using public money to sue complainants who break their NDAs.

McPhedran said the goal is to ensure that public money isn't used to "protect perpetrators" or "cover up abuses."

"This bill follows the money, making it impossible to use federal monies for such NDAs on a go-forward basis," McPhedran told CBC News.

NDAs often contain clauses preventing victims from speaking publicly about their allegations in return for a settlement payment. Such agreements can also contain clauses that prevent victims from revealing how much money they were paid — or even that they were paid at all.

The new bill comes after Hockey Canada came under fire for using NDAs to settle allegations of sexual abuse.

Hockey Canada negotiated an NDA when it settled a high-profile $3.5 million lawsuit filed by a young woman who alleged a group of World Junior hockey players sexually assaulted her in a London, Ont. hotel room in 2018.

Critics recently called out the federal government for restoring Hockey Canada's federal funding without requiring it to abandon the use of NDAs.

WATCH/ Critics call out feds for restoring Hockey Canada funding without action on NDAs

"Hockey Canada enabled Canadians to realize NDAs were being used very widely to cover up misconduct and this bill will prevent future public money being used to suppress information about misconduct," said Julie Macfarlane, co-founder of a campaign against the abuse of NDAs called "Can't Buy My Silence." She said she helped McPhedran draft the new bill.

"NDAs are this phenomena that is about burying what has happened."

Bill would require government to track use of NDAs

The new bill calls for changes to the Federal Administration Act and the Parliament of Canada Act. It would ban the use of NDAs in certain cases and the use of public funds to pay out these agreements.

The legislation would prevent public money from going to settlements that include NDAs and from enforcing NDAs. It also calls on "federally funded entities" to report to the government annually on the number of NDAs signed and the amount of money involved.

The legislation includes no financial penalty for organizations that ignore it.

McPhedran said it would be up to the ministers responsible to decide whether to withhold funding from individual organizations.

"This is a very public process," said McPhedran. "It also allows for the parliamentarians to take some leadership, some responsibility in terms of testing if this legislation is designed to do what it's supposed to do."

The bill also would require a public review by a parliamentary committee every two years. McPhedran said that committee would test whether the legislation is working and figure out what needs to change.

WATCH/ Hockey Canada drops NDA with complainant in alleged sexual assault case

P.E.I. became the first province to pass similar legislation last year. Macfarlane said that, unlike the provincial legislation, the new bill in the Senate would prevent federally funded entities from using public money to sue or sanction complainants who break their NDAs.

Robin Browne broke his NDA by speaking publicly at a press conference about the bill.

Browne said he faced discrimination at work during his 20-year career in the public service. He co-founded the federal Black Employees Caucus in 2017 and challenged systemic and black racism in the public service. He said he was hit with escalating sanctions afterward, culminating in him being sent home one day.

"While I was out, without telling me, they banned me from all the departmental buildings and circulated a photo to the security guards ..." he said.

Browne said he obtained a copy of the photo through an access-to-information request. He said a caption on the photo indicated that security guards at federal buildings were told to ask for his pass and look for signs of violent behaviour.

He said his manager later offered him a deal that included an NDA, on the condition that he drop his complaint with the Canadian Human Rights Commission.

'Sometimes, NDAs are important'

Some lawyers, including Toronto-based employment lawyer Howard Levitt, have spoken out against banning NDAs. Levitt said NDAs are a legitimate tool used by companies paying to protect their reputations.

Members of the Canadian Bar Association voted in favour of a resolution in February calling for NDAs to no longer be used as a tool to silence victims of abuse, harassment and discrimination.

Vancouver lawyer Jo-Anne Stark, who put forward the resolution, said that since it passed, the number of settlements has not "been reduced in any way."

She said the resolution doesn't mean organizations can't use NDAs at all.

"Sometimes NDAs are important if you're releasing and employee and don't want to share trade secrets from that organization," said Stark.