Premier says people aren't 'forced' to sign NDAs; advocates say coercion a factor

Less than two weeks after Nova Scotia's justice minister said passing legislation to ban non-disclosure agreements (NDAs) was "not a priority," Premier Tim Houston said Friday it is an "active, urgent situation" to figure out whether the government should do so.

"We feel the urgency to do a jurisdictional scan and see what's in the best interest of Nova Scotians," Houston told reporters on Friday.

His comments came after a sexual assault survivor came forward to urge the province to ban the use of NDAs in cases of sexual assault, discrimination or harassment.

Critics of non-disclosure agreements say they hamper victims' ability to heal from their experiences and they protect perpetrators, potentially leaving them to continue their behaviour.

Houston said his government is committed to exploring what other provinces are doing about the issue. Earlier this year, P.E.I. became the first province to restrict NDAs in cases of discrimination, harassment or sexual misconduct, only allowing them to be used in a settlement if the person bringing forth the allegation wants such a clause.

When Houston was asked Friday how he feels about the use of the agreements, he said, "There's always individual circumstances as to how they come about, how they're signed, what they mean, what the wording is…. I'm not aware of situations where people would be forced to enter into these."

Pressure tactics at play

Julie Macfarlane, a University of Windsor law professor and the co-founder of a campaign that aims to end the misuse of non-disclosure agreements, called Can't Buy My Silence, said the idea that NDAs are signed without coercion is a misconception.

Macfarlane said pressure tactics are frequently used to get people to sign NDAs during settlement negotiations.

"To say, the offer is on the table, but you have to take it or leave it now, is a tactic that gets used very widely," she said. "And it's often at the end of a very long session when people feel exhausted and they just want to get the heck out of there."

The Can't Buy My Silence campaign has been gathering and publishing testimonies of people who have signed NDAs, including many who experienced discrimination, harassment or assault. 

Some people are told they will not get a settlement — which can include a monetary payment — unless they agree to an NDA. And many, Macfarlane said, need money to pay rent or even a lawyer who has helped them in their search for justice. Others do not have a lawyer of their own to advise them as they proceed through settlement negotiations.

People who sign NDAs often do not understand the full consequences of doing so, as the NDA clauses are frequently buried deep within a settlement agreement.

"I have never spoken to anybody, no matter what their level of education, who fully understood the consequences of an NDA when they signed it," Macfarlane said.

Institutions also try to convince people to sign NDAs by telling them that the alternative — going through a court process — will be difficult, or that the NDA will help them move on.

"I couldn't tell you how many people have said to me, 'They told me it would enable me to move on, but what is really means is I'm stuck in my trauma because I can't talk to the people that I need to talk to about it,'" Macfarlane said.

Opposition reaction

NDP Leader Claudia Chender, who tabled legislation in the spring to ban NDAs, said the government needs to act now.

"If they're not going to do it, then we need to ask why," she said Friday.

"The government keeps talking about a jurisdictional scan. Jurisdictional scans take about 15 minutes. They've clearly already done one because they've spoken about other jurisdictions in the House."

Chender said limiting the use of NDAs is in the public interest because it could bring to light abuses or allegations that would otherwise remain hidden.

"Lots of the alleged incidents at the heart of the Hockey Canada scandal happened years ago, decades ago, in some cases. The reason we haven't heard about them until now is because of the presence of NDAs," Chender said.

"Perhaps if those hadn't have existed, many, many, many people could have been saved a lot of trauma and tragedy, frankly, because the wrongdoing could have come to light sooner and it could have stopped."

Liberal Leader Zach Churchill said his caucus supports the NDP bill.