Lawyers across Canada approve groundbreaking resolution to help prevent abuse of non-disclosure agreements

Lawyers across Canada have voted in favour of a resolution pushing for non-disclosure agreements, known as NDAs, to no longer be used as a tool to silence those who come forward after experiencing abuse, harassment and discrimination.

The Canadian Bar Association swiftly passed the resolution by a margin of 94 per cent with little debate at its annual general meeting on Thursday,  according to Julie Macfarlane, a professor emerita in the law department at the University of Windsor and co-founder of the Can't Buy My Silence campaign.

"NDAs have become a default in settlement agreements for the last decade, and this shows that a rethink is taking place," said Macfarlane.

The resolution came in part from a campaign founded by Macfarlane and Zelda Perkins. Perkins signed and later broke an NDA with disgraced former film producer and convicted sex offender Harvey Weinstein.

NDAs are legal contracts in which people agree to keep information outlined in the agreement strictly confidential. The contracts, typically signed by two people, were initially used to protect trade secrets in the workplace but have evolved into a common tool to silence victims and protect perpetrators.

They can also prevent survivors from speaking with family, friends and therapists about their experiences. Employers can be left in the dark about an employee's past actions at previous jobs, allowing them to carry on their harmful behaviour.

"They've become much more pervasive and almost like a boilerplate clause in a lot of agreements," said Vancouver lawyer Jo-Anne Stark, who put forward the motion.

"It creates, in the end, almost a toxic work environment."

Macfarlane says she finds the vote within the legal profession encouraging.

"They heard from many people who have been silenced for years by non-disclosure agreements about the harm it has caused, and they have thought twice."

While the resolution from the CBA is not law, Macfarlane says, it removes an obstacle from government, the opposition of the legal profession and sends a strong message.

During the meeting Thursday, Canadian lawyers spoke out in favour of the resolution. Some spoke about clients who contacted them years after signing an NDA, asking whether they had any options to be freed from their contract and lamenting they did not fully understand the paperwork when they signed.

Other lawyers expressed frustration after hearing stories of perpetrators protected by NDAs, who continued to perpetrate abuse and escape accountability.

With the vote, the bar association committed to discourage the use of NDAs to silence victims and whistleblowers who come forward to report abuse, harassment and discrimination.

Stark said the association will advocate and lobby for legislation and policies relating to NDAs at the federal, provincial and territorial levels.

"It's up to the legal profession to understand the impact of these agreements, so the negative effects are minimized," Stark added.

Stark says she hopes the resolution will inspire companies to review policies within their organizations.

"People are going to have to look at their policies about what happens with these complaints, making sure the victim is getting the support they need and making sure their documentation is in alignment," said Stark.

A watershed moment

Macfarlane, the law professor, said non-disclosure agreements should not exist in situations where there have been allegations of sexual misconduct, harassment, discrimination and other forms of injustice.

"All kinds of things today are being hidden in non-disclosure agreements which are not trade secrets," she said. "They're just bad things that one of those two parties doesn't want the public to know about."

In recent months, Hockey Canada came under fire amid revelations that non-disclosure agreements were used in some settlements involving sexual assault allegations.

In B.C., Macfarlane said it took Thompson Rivers University 12 months to release complainants from their NDAs to be part of an investigation into bullying and harassment claims involving two senior leaders.

"They have been released only for the period of the investigation, whereas, in my opinion, they should be released permanently because non-disclosure agreements have no place covering up allegations of misconduct in our public universities," she said.

Last July, Prince Edward Island became the first province to limit the use of NDAs. Similar legislation has been introduced in Nova Scotia and Manitoba.

In December, U.S. President Joe Biden signed a bill into law banning the use of NDAs with regard to sexual harassment and assault. Congress had found 81 per cent of women had experienced sexual harassment and assault at work, as well as 43 per cent of men, and believed NDAs wrongly prohibited those people from coming forward to report the behaviour.