P.E.I. Legislature backs bill to limit NDAs from silencing harassment and discrimination victims

A bill that would limit organizations from using non-disclosure agreements to prevent victims of harassment or discrimination from speaking out has passed second reading in P.E.I.

The province's Legislative Assembly unanimously voted in favour of the bill on Tuesday, which was put forward by Green MLA Lynne Lund.

The legislation would make P.E.I. the first province in Canada to limit the use of NDAs in cases of sexual misconduct.

The bill would allow parties to enter such an agreement in cases of harassment or discrimination only if it's in accordance with the wishes of the person who made the allegations.

They can't be unduly influenced, they can't be pressured into it and they have to have been given legal advice.— Green MLA Lynne Lund

Lund said her legislation would protect victims who agree to an NDA during the settlement of sexual misconduct cases in an effort to move on from a traumatic experience.

"They sign the agreement and they leave believing this will allow them to move on, but they quickly discover that the NDA is exactly the thing that prevents them from being able to do so, because they now believe they cannot speak to the police, they cannot speak to their mental health support worker, they cannot speak to their doctor," she said in the legislature. 

"It's incredibly challenging particularly in a small community, because this person finds themselves constantly in fear of accidentally breaching the terms of their agreement, and finding themselves at risk of being sued."

The bill also provides mechanisms for those who do enter NDAs to waive their confidentiality in the future, and raises the requirements under which such agreements can be enforceable.

"They can't be unduly influenced, they can't be pressured into it and they have to have been given legal advice." Lund said. "They need an opportunity to clearly have it spelled out in the agreement who they're always allowed to talk to."

Susceptible to abuse

Experts in other parts of the country have previously lauded the legislation.

And advocates and survivors wrote letters supporting the bill.

"Having tried to protect a colleague over 25 years ago, when working for Harvey Weinstein, and being coerced into signing a damages agreement with unethical and frankly immoral non-disclosure clauses, I am very aware of the devastating personal and professional ramifications of signing away your human right to speak about a trauma," wrote Zelda Perkins, who broke the agreement with Weinstein and Miramax Films against her legal advice in 2017.

"It is my belief that unless lawmakers step in to restrict the use of non-disclosure agreements, these provisions will continue to be demanded by settling parties in both harassment and discrimination cases, and all too often survivors will accept them in order to secure a settlement that brings them some closure." 

In a letter to Lund, Nova Scotia human rights group Equity Watch said high-profile sexual harassment cases such as the Harvey Weinstein scandal show how NDAs can be abused.

"Private settlements can be helpful in avoiding costly and time-consuming boards of inquiry," wrote Larry Haiven, professor emeritus at Saint Mary's University. "As well, victims sometimes prefer a private resolution rather than have what happened to them be a matter of public record.

"However, if one of the main purposes of the human rights regime is public education and general deterrence, then a gag order renders the settlement route absolutely useless."

Haiven said failure to abide by the terms of the agreement can lead to the settlement being nullified, and that there's been cases where even the mention of a settlement has been ruled a breach, or led employers to demand for it to be reversed.

"It shows ... the extent to which some respondents will go in enforcing the silence intended in NDAs," he said.

The Canadian Women's Foundation, The Prince Edward Island Rape and Sexual Assault Centre, BIPOC USHR and other organizations also wrote letters in support of the legislation.