Lawyers, advocates call for change to Nova Scotia's NDA legislation following vote

Some Halifax lawyers and advocates say they hope a recent vote on the misuse of non-disclosure agreements serves as a first step to ensuring the contracts aren't used to silence whistleblowers.

On Thursday, lawyers across Canada voted in favour of a resolution to push for the agreements — also known as NDAs — to no longer be used to silence those who step forward with allegations of abuse and discrimination.

The Canadian Bar Association passed the resolution by a margin of 94 per cent at its general meeting, according to University of Windsor law professor Julie Macfarlane, who also co-founded the Can't Buy My Silence campaign.

Ron Pink of Halifax-based law firm Pink Larkin said on Information Morning the vote gives some "heft" to the message that action needs to be taken to adjust circumstances in which NDAs can be used.

"NDAs are both advantageous and disadvantageous," Pink said.

"It depends. In situations in commercial transactions, it makes perfect sense to protect the interests of corporations, trade secrets, patents and developments they might be participating in. But when it comes to sexual harassment, discrimination, NDAs are a murderous tool."

Pink went on to say women are often subject to agreements to prevent them from speaking out about abuse and harassment, which can be traumatizing.

"There's absolutely no reason to lock victims of harassment and abuse into these confidentiality agreements," said Liz LeClair.

It was her own tumultuous dealings with an NDA that inspired the local advocate to push for change to legislation.

While on Information Morning along with Pink, LeClair, who works for the Can't Buy My Silence campaign, said she faced sexual assault and harassment for years while at work.

When filing a complaint with the Nova Scotia Human Rights Commission, she said she was required to sign an NDA to accept a settlement. She refused to do so.

"I was told that I would not be able to talk to my husband about it, I would not be able to talk to my family, I could only speak to my accountant and possibly a therapist, but that's it," LeClair said.

"People think that women are making a lot of money off these settlements. They're $10,000, $15,000. It's nothing to be able to move on with your life with."

She added that while she was able to reach out for legal advice, many people who end up signing NDAs don't have the resources to analyze the agreement.

A spokesperson for the Department of Justice emailed a statement to CBC saying, "Supporting survivors of sexual abuse, harassment and discrimination with sensitivity and respect is one our highest priorities as government. Everyone agrees that non-disclosure agreements should never be used as a means to silence victims." 

Nova Scotia had the opportunity to change legislation last year, but Justice Minister Brad Johns said the issue wasn't a priority and the department would wait to see the result of recently implemented legislation in Prince Edward Island. Officials are now looking at similar laws throughout North America, according to the statement.

Last year, the P.E.I. Legislature passed a bill with all-party support that bans the use of NDAs in cases of harassment, discrimination and sexual misconduct, unless it's acceptable to the person making the allegation.

"The government is perpetuating the injury to women who are harassed and are significantly damaged by it and they won't do anything to help them," Pink said.

The provincial NDP proposed Bill 144 last year to regulate the use of non-disclosure agreements in Nova Scotia.

The bill states that "no party responsible or person who committed or who is alleged to have committed harassment or discrimination shall enter into a non-disclosure agreement with a relevant person if … the relevant person has experienced or made allegations of harassment or discrimination," among other conditions.

The bill remains in the legislative process and would need to clear several steps to become law.

As a part of the push for the legislation, LeClair said she's launching a petition to encourage the government to support the bill in the spring sitting.

"I would ask the question of anyone who feels NDA's are still, at this point, a good tool to use … maybe there's a possibility that they haven't entered into one themselves and they have something to hide," she said.