2 women who signed NDAs unable to testify in UPEI review into sexual harassment: lawyer

Two women who came forward in 2012 with allegations of sexual harassment at the University of Prince Edward Island have been unable to provide testimony in an ongoing review because they signed non-disclosure agreements (NDAs), according to the lawyer representing them.

That review, by the Toronto-based law firm Rubin Thomlinson, is meant to look at how the university has dealt with complaints of sexual harassment on campus, and its practice of signing NDAs with complainants who came forward.

Lawyer Ron Pink spoke about the situation facing his clients during a Halifax panel discussion on NDAs organized by the group Can't Buy My Silence, which is campaigning for an end to the use of the documents to silence victims.

Pink said UPEI agreed to waive the conditions of the NDAs his clients had signed so that they could participate in the review, but he said the situation was complicated by the fact that the person being accused of harassment had also signed the agreement.

Because they couldn't get the [alleged] harasser to forgo the NDA, they couldn't testify or speak to the investigator.— Ron Pink

"Because they couldn't get the [alleged] harasser to forgo the NDA, they couldn't testify or speak to the investigator," Pink said of the two women. 

"And there's no way around it legally, except with a real fight and an expensive fight [so] that they say, 'What do I want to do that for?'"

Pink did not name his clients or the person accused of sexual harassment by his clients.

The circumstances and timelines all correspond with what CBC News has previously reported regarding allegations of sexual harassment made against the former president of UPEI, Alaa Abd-El-Aziz.

CBC News tried multiple times to contact Abd-El-Aziz but did not receive a response.

CBC News also reached out to Pink, who declined to confirm further details from his presentation. He also declined a request for an interview.

UPEI says it waived confidentiality

In the terms of reference for the review, UPEI said it was "committed to trying to ensure that all those who are interested in participating in the review will have an opportunity to do so," even if they had signed non-disclosure agreements as part of their settlements with the institution.

"The university has waived the confidentiality requirements for everyone who has contacted counsel, so that they can openly participate in the review," a university spokesperson told CBC by email.

But UPEI did not address questions about whether Abd-El-Aziz had also signed NDAs and whether he had refused to waive those conditions to allow those people to speak.

Neither did the university respond to a request to provide a spokesperson from the board of governors for an interview.

General and special damages 'and other things' 

As part of the panel discussion, Pink went into details on what his clients experienced after coming forward. 

He described how they took their complaints to the P.E.I. Human Rights Commission, then agreed to try to settle their cases.

"We spent a couple days in mediation and we came to a resolve," Pink said. "The resolve was money being paid to the complainants — general damages, special damages and other things to cover their losses. And it had an NDA."

At the time, Pink said, NDAs were standard in these types of settlements. At the panel discussion he took responsibility himself for negotiating one for his clients, and described the lasting impact it has had on them.

They lived this harm for the last 10 years, and the inability to express it to anybody is what's killing them, literally making them sick.— Ron Pink

"They lived this harm for the last 10 years, and the inability to express it to anybody is what's killing them, literally making them sick," he said.

"Just the inability to even discuss it with a friend, or a colleague, or to write about it in some academic journal in some way, to express the harm that's caused — not by the sexual harassment but by the dampening effect of the NDA."

Pink said his clients ended up back in therapy as a result of their failed attempt to take part in the UPEI review.

"All the bad memories, all the bad feelings, all the sicknesses… it brought it all back up again."

New complainant came forward in 2021

Pink said after the settlement, his clients felt forced to move away to restart their careers, but the alleged perpetrator stayed in place — and he said allegations of sexual misconduct continued.

In December of 2021, he said he received a call from another woman saying she was also a victim.

"And I tell the university, I tell the employer, and lo and behold, they acted very quickly. And he was gone.

"So the employer says, 'We're going to do an inquiry.'"

UPEI announced its review on Dec. 8 of that year, one day after the university announced Abd-El-Aziz's early retirement, citing health reasons.

In announcing the review, the university said it had received a fresh allegation of "workplace misconduct" involving the former president. As part of the review, Rubin Thomlinson is also investigating that allegation.

NDA law 'terrific,' but not retroactive

In May of this year, P.E.I. became the first jurisdiction in Canada to enact a law limiting the use of NDAs in cases of harassment, discrimination and sexual misconduct.

Pink descried the law as "a terrific piece of legislation," but one that didn't protect his clients because most of its restrictions were not made retroactive. That means they can't be applied to NDAs signed before the law came into effect.

The bill's sponsor, Opposition MLA Lynne Lund, said she didn't intend that, but the province's justice minister at the time made it clear "there was not going to be any support for retroactive provisions. And in the interest of getting it passed, that was one of the things we had to be prepared to let go of."

One provision in the law makes an NDA unenforceable if it would have an adverse effect on the health or safety of a third party or the public interest.

Lund said that was meant to allow victims to speak out in order to prevent cases of serial abuse. 

"There are so few examples where there is one case of misconduct and one case only," she said.

Time and time again, what we saw is that when an organization used an NDA to hide sexual misconduct, the accused was emboldened to do it again because, frankly, they knew they could get away with it.— MLA Lynne Lund

"Time and time again, what we saw is that when an organization used an NDA to hide sexual misconduct, the accused was emboldened to do it again because, frankly, they knew they could get away with it."

But Lund admitted anyone trying to use the third-party clause in P.E.I.'s law to nullify an NDA would likely face a lengthy and costly legal battle.

UPEI could have 'major problem'

Lund also questioned the effectiveness of UPEI's review if people who should be key witnesses are not allowed to take part.

"We will have a major problem with restoring the public's confidence in UPEI and their ability to handle allegations of sexual misconduct well, if there is not a pathway that allows the people who are most severely impacted to share their stories."

Janice Rubin, one of two lead investigators in the review, said Rubin Thomlinson would not comment on the investigation while it is ongoing. UPEI has not provided a timeline for completion of the review.

"Rubin Thomlinson has indicated that conducting a review of this nature is time consuming," a spokesperson told CBC via email. 

"The University is confident they are working diligently to complete their review and that the results will be thorough."