Can’t Buy Silence Bill

Honourable senators, I will try to get through as much as I can before four o’clock strikes. I rise today at second reading of Bill S-232, An Act respecting non‑disclosure agreements.

In general, non-disclosure agreements have the broadest definition as being legally binding contracts that establish a confidential relationship between parties to protect sensitive information from public disclosure.

The original purpose was related to protecting trade secrets and client confidentiality, but over time, that purpose has significantly changed, and they have become a clause in contractual agreements that require a victim to agree to protect the identity and actions of a perpetrator as well as the responsibility of organizations or employers in exchange for their confidentiality, which is so important to survivors.

The use has increased and crept into the management of sexual misconduct, discrimination cases, employment contracts, workplace investigations, settlement agreements and letters of severance. They have become part of a power imbalance between victims and their perpetrators or employers and baked into our legal system and workplace complaint system. And they are not providing safety for victims against discrimination and sexual misconduct.

The Canadian arm of Can’t Buy My Silence has studied this in great detail. Their data shows that 33% of those experiencing discrimination or harassment in their workplace decide not to make a formal complaint because they anticipate that if they do, they will be required to sign a non-disclosure agreement, or NDA, and they do not want to do so because NDAs are routinely forced on victims after their report of abuse or discrimination — a reflection of the anxiety of employers and institutions about protecting their own reputation.

There were four studies that show that one in three workers will sign an NDA during their working lives, and the vast majority of these are for sexual harassment, sexual assault and discrimination. This translates into tens of thousands of Canadians being bound by an NDA, with numbers growing weekly. The consequences are wide and broad.

Covering up an identity and the circumstances of wrongdoing eventually undermines workplace morale. It risks other employees, and it means that a wrongdoer can be passed to another employer without knowledge of their past conduct — a phenomenon described as “pass the trash.” “Pass the trash” happens across universities, churches, workplaces and, yes, government agencies and departments.

Research shows that the human impact of NDAs, which can last forever, typically prohibits signers from speaking about their experience with family, friends and therapists. It also means that they cannot warn others. In particular, 55% of those who have signed an NDA leave their workplace, whereas only 22% of the harassers have to leave, and these harassers can be secretly passed along to a new employer without knowing their history. In many cases, victims must continue to keep silent for the rest of their lives. The data shows that 93% of NDA signers report mental health consequences, including guilt about not warning others, regret about signing the NDA and total loss of faith in justice.

Increasingly, this has become a default position. Many lawyers estimate that they are using up to 95% of agreements. NDAs are being used to settle cases of sexual misconduct, for example, and victims are frequently told, “Everyone signs these,” and they must sign in order to get a settlement.

This, in fact, is not correct. The 2022 Ontario Superior Court of Justice decision in Bouzanis v. Greenwood et al. made it clear that NDAs are not required for settlement and that the signer must understand and voluntarily agree.

A constant theme among the stories of NDA signers is that they did not understand what they were agreeing to and signed in order to get a traumatic experience behind them, and it was usually under pressure. What is more, if a victim leaves their workplace after their experience, they cannot explain why they left, they cannot seek time off to recover, and, in fact, they are stuck moving to a new place with a big question hanging over their heads as to why they left their previous workplace.

NDAs are used in our federal government more than you think. They are used by departments and federally funded agencies. They are used to prevent an employee from speaking about a complaint in any situation where it casts the employer in a bad light, such as cases of discrimination, sexual misconduct and harassment. Where the wrongdoer can hide their historical behaviour, the “pass the trash” phenomenon occurs.

It affects equity-seeking groups as well. There is substantial data that a disproportionate number of individuals in these groups are affected. Four times more women than men sign NDAs, probably because of their use in pregnancy discrimination or sexual harassment. NDAs are frequently used to cover up racial, anti-Indigenous, disability and pregnancy discrimination, and they are especially used in highly precarious and low-paying employment sectors. In fact, they are used at the far ends of the work experience: Young workers and older workers are affected more.

It affects our children. In particular, 98% of civil abuse cases and assault cases settle before trial, and pretrial or mediated settlement regularly include an NDA. Some victims — minor children in some cases — do not have the capacity to sign NDAs. Their parents are pressured to do this, and when they reach the age of consent — the age of majority — they must sign this NDA. These are bizarre practices that have become part of our lives. Sometimes the stories are never disclosed, and the child must continue to bear this burden in silence.

NDAs are particularly prevalent in youth sports. Youth athletes are especially vulnerable to NDAs, regularly being used to hide abuse or harassment by authority figures, such as coaches. The evidence heard by the House of Commons Standing Committee on Canadian Heritage of the abuse of young people and the constant requirement for them to sign NDAs led to the committee’s major recommendation to stop the use of NDAs by national sport organizations.

Schools, whose secondary —