April 11th, 2023

The misuse of Non-disclosure Agreements and what we can do about it

A great deal has been written in recent days about the misuse of Non-disclosure Agreements (NDAs) and the harm that they cause to victims of harassment, abuse and impropriety.

The NDP is proud to have brought this issue to light last spring with the introduction of Bill 144, the Non-disclosure Agreements Act, to end the misuse of NDAs in Nova Scotia. Our bill is virtually identical to the one passed recently in PEI and is based on the same model as legislation that has now been passed at the federal level in the United States and in 17 other U.S. jurisdictions, as well as in Ireland.

It’s worth noting that this bill came about because of awful, in many cases criminal, behaviour by individuals and within institutions that was both hidden and perpetuated by the ability of the wrongdoers to force victims to sign an iron-clad confidentiality agreement. Usually, this is done with no independent legal advice and no real alternatives, in exchange for money. Prominent examples of where these have come to light are the cases involving Harvey Weinstein and Fox News, and closer to home, Hockey Canada – where the money for these NDAs came directly from Hockey Canada member fees and government funding that were then funnelled towards the silencing and perpetuation of abuse.

It’s time for this to end. While NDAs could still appropriately be used to protect trade secrets, our bill would ensure that if they are used in the case of sexual misconduct, abuse or other violation, then entry into the agreement must be voluntary and both parties must have independent legal advice. A confidentiality clause could also be agreed upon to protect victims who don’t wish to have their names made public. This bill protects victims and helps stop the personal and institutional cycles of abuse, bullying, and bad behaviour. What we don’t know about we cannot change.

The Canadian Bar Association put forward a motion banning the use of these agreements and 94 percent of their members voted in favour. Universities across the country are signing a pledge to do the same. Avalon Sexual Assault Centre here in Nova Scotia along with the Can’t Buy My Silence Campaign have taken the lead in representing survivors and organizations working to end gender-based violence in promoting this legislation.

Recently, personal stories have come to light again within Nova Scotia politics about inappropriate behaviour by powerful people, possible cover-ups, and the inappropriate use of NDAs. Where there is smoke, there is often fire, but we can’t fix what we don’t know the details of, and we can’t put out fires when we don’t know where they are burning.

Our bill can’t fix what happened in the past, but it would make a huge difference in the lives of Nova Scotians going forward, in stopping bullying and harassment, in reforming institutions–including government–and in protecting those vulnerable to abuse. It’s time.

We are calling on the Houston government to demonstrate their commitment to these goals by moving our bill forward in the coming days before this session ends. I’m confident that it will pass with all-party support, and we can demonstrate to the public that we can work together to do the right thing and make things better for all Nova Scotians.

Claudia Chender is the Leader of Nova Scotia's New Democrats and the MLA for Dartmouth South