There are growing calls to ban non-disclosure agreements across the country as Hockey Canada and other sports organizations reel over sexual assault scandals, some of which have led to payouts millions of dollars to keep the details of the incidents secret.
Non-disclosure agreements can prohibit sexual assault complainants from speaking publicly about their allegations in exchange for a settlement.
University of Windsor law professor Julie Macfarlane has helped provinces draft laws to prevent the abuse of nondisclosure agreements (NDAs). She is now calling on the federal government to do the same.
“Hockey Canada’s history has illustrated the pervasiveness and pervasiveness of non-disclosure agreements by once again pushing everything under the rug,” said Macfarlane, co-founder of a campaign called “Can’t Buy My Silence.” .
“There is no identification of the perpetrator and no known consequences. This gives them permission to continue behaving in the same way.”
Before Hockey Canada shone a spotlight on the issue, Prince Edward Island became the first province in May to limit the use of NDAs involving allegations of discrimination and harassment, including sexual misconduct. . NDAs can now only be imposed in these cases in Prince Edward Island if a plaintiff wishes.
Manitoba and Nova Scotia introduced similar bills this year. Senator Marilou McPhedran said she also plans to introduce a federal bill in the Senate next month.
Amid the move to regulate NDAs, the federal labor minister’s office said it was engaging with stakeholders, but there are currently no plans to change the law.
Sports Minister Pascale St-Onge has spoken out against NDAs and said a review of funding for sports organizations will examine the issue.
WATCH | Woman at center of Hockey Canada pursuit breaks silence
Hockey Canada is the latest organization to come under fire for its use of NDAs to settle some sexual assault allegations.
The hockey organization recently released a woman from her confidentiality agreement, a day before a parliamentary committee where MPs quizzed Hockey Canada executives on her handling of the case.
The woman had filed a $3.5 million lawsuit in April alleging she was sexually assaulted in 2018 by eight Canadian Hockey League players, including members of the world junior team.
As part of the settlement, the woman signed an agreement prohibiting her from speaking about the allegations. But the deal allowed him to communicate his wish to stay out of public debate, his lawyer Rob Talach told CBC News on Tuesday.
“A visceral and outright ban…will end up hurting some survivors”
Talach said his client’s case has sparked “important discussion” about NDAs in Canada, but he fears a complete ban on NDAs could limit some victims’ options during negotiations.
“I think a visceral, outright ban from the NDA will end up hurting some survivors,” Talach told CBC News. “This can cause some survivors to get nothing because there is nothing to trade.”
Talach has represented sexual abuse complainants for nearly 20 years and says he doesn’t usually negotiate NDAs unless the agreement is only to keep his clients from disclosing the amount of money they received. a tactic he says can protect defendants from “splatter headlines”. .”
He also said that, legally, NDAs cannot prevent complainants from speaking to the police or seeking therapy.
WATCH | Hockey Canada drops NDA with plaintiff in alleged sexual assault case.
Talach would prefer to see a judge of the Superior Court of Justice oversee the granting of NDAs in exceptional cases.
“If the parties can’t convince the judge that the NDA is fair and mutually agreed, then it’s not happening,” he said.
NDAs can mean bigger settlements, lawyer says
Toronto attorney Howard Levitt says he’s negotiated hundreds of NDAs for various issues and employers or businesses probably wouldn’t provide adequate settlements without them.
“I can get a woman often $1 million plus settlements,” Levitt said. “If there was no NDA, I would get a tenth or less.”
Companies pay to protect their reputations, Levitt said. If a plaintiff receives a substantial settlement, Levitt said, and then goes out and “defames” him or “speaks viciously about his experience,” he “doesn’t get value for what he pays.”
Lynne Lund, a Green MP from PEI, says silence allows sexual misconduct to fester and “allows predators to stay hidden in plain sight.”
“When organizations have the ability to silence people, to gag people, they will always choose to protect their reputation over protecting the general public,” Lund said.
She introduced the bill restricting the use of NDAs in her province and is now offering to help politicians of any political stripe in any province draft similar bills.
“It’s been a huge comfort to people who have signed NDAs in the past to know that this won’t happen to people in the future,” she said. “Each province must tackle this problem. Hockey Canada does a very good job of making this point clear to me.
Woman who signed NDA calls it ‘unethical, immoral’
A BC woman signed a non-disclosure agreement two years ago and calls it “unethical, immoral and harmful”.
She reported to her workplace that her boss repeatedly sexually harassed her at work. CBC News has agreed to keep his name confidential due to concerns about potential legal repercussions.
The woman said she reported her allegations because she wanted an apology and action. But instead, she said the University of British Columbia where she worked offered her a settlement that allowed her boss to keep her job, but forced her out.
She said her lawyer told her she had no choice but to sign the NDA if she wanted a settlement. She tried unsuccessfully to negotiate an exception, she said.
“I said ‘what if this happens again and another victim finds me and then comes to me?'” she recalls asking her employer. “Can I share my story with this person? The answer was no…It made me sick”
In a statement, the labor minister’s office said new requirements for employers came into effect in January to prevent harassment and violence in federally regulated workplaces. The new measures will be reviewed within five years.
A senior government source familiar with the matter says preliminary legal analysis shows that banning NDAs could pose jurisdictional risk, as it is the responsibility of the provinces and further legal analysis is needed.
The review of federally funded sports organizations should be completed with new changes in effect by April 2023.