New bill before the Senate would crack down on non-disclosure agreements

A new bill tabled in the SenateTuesday wouldcurb the use of non-disclosure agreements that force employeesto remain silent about harassment, violence or discrimination in the workplace.

The "Can't Buy Silence Act," introduced by Sen. Marilou McPhedran, would apply toCanada's public service and any organization that receives federal funding, including Crown corporations like CBC News and non-governmental national sport organizations like Hockey Canada.

McPhedransaid the bill would change federal law to bar the federal public service and organizations receiving federal funding from employing NDAsin a range of cases.

The bill also would preventthoseorganizations from using public money to sue complainantswho break their NDAs.

McPhedransaid the goal is to ensure that public money isn't used to "protect perpetrators" or "cover up abuses."

"This bill follows the money,makingit impossible to use federal monies for such NDAs on a go-forward basis," McPhedran told CBC News.

NDAs often contain clauses preventing victims from speaking publicly about their allegations in return for a settlement payment. Such agreements can also contain clausesthat prevent victims from revealing how much money they were paid or even that they were paid at all.

The newbill comes after Hockey Canada cameunder firefor using NDAs to settle allegations ofsexual abuse.

Hockey Canada negotiated an NDA when it settleda high-profile$3.5 million lawsuit filed by a young woman who alleged a group of World Junior hockey players sexually assaulted her in a London, Ont.hotel room in 2018.

Critics recently called out the federal government for restoring Hockey Canada's federal funding without requiring it to abandon the use of NDAs.

WATCH/ Critics call out feds for restoring Hockey Canada funding without action on NDAs

Critics call out feds for restoring Hockey Canada funding without action on NDAs

1 year ago

Duration 2:45

Critics are calling out the federal government for not making banning non-disclosure agreements (NDAs) a condition for resuming funding for Hockey Canada. They say NDAs can be used to silence sexual assault victims, and cover up misconduct.

"Hockey Canada enabled Canadians to realize NDAs were being used very widely to cover up misconduct and this bill will prevent future public money being used to suppress information about misconduct," said Julie Macfarlane, co-founder of a campaign against the abuse of NDAs called "Can't Buy My Silence." She said shehelped McPhedrandraft the new bill.

"NDAs are this phenomena that is about burying what has happened."

Bill would require government to track use of NDAs

The new bill calls for changes to the Federal Administration Act and the Parliament of Canada Act.It would ban the use of NDAs in certain cases and the use of public funds to pay out these agreements.

The legislation would prevent public money from going to settlements that include NDAsand from enforcing NDAs. Italso calls on "federally funded entities" to report to the government annually on the number ofNDAssigned and the amount of money involved.

The legislation includes nofinancial penalty for organizations that ignore it.

McPhedran said it would be up to the ministersresponsible to decide whether to withhold funding from individual organizations.

"This is a very public process," saidMcPhedran. "It also allows for the parliamentarians to take someleadership, some responsibility in terms of testing if this legislation is designed to do what it's supposed to do."

The bill also wouldrequire a public review by a parliamentary committee every two years. McPhedran said that committee would test whether the legislation is working and figure out what needs to change.

WATCH/ Hockey Canada drops NDA with complainant in alleged sexual assault case

P.E.I. became the first province to pass similar legislation last year.Macfarlane said that, unlike the provincial legislation, the new bill in the Senate would prevent federally funded entities from usingpublicmoneyto sue or sanctioncomplainantswho break theirNDAs.

Robin Browne broke his NDAby speaking publicly at a press conference about the bill.

Browne said he faced discrimination at work during his 20-year career in the public service. He co-founded the federal Black Employees Caucus in 2017 and challenged systemic and black racism in the public service. He said he was hit with escalating sanctions afterward, culminating in him being sent home one day.

"While I was out, without telling me, they banned me from all the departmental buildings and circulated a photo to the security guards ..." he said.

Browne said he obtained a copy of the photo through an access-to-information request. He said a caption on the photo indicated that security guardsatfederal buildings were told to ask for his pass and look for signs of violent behaviour.

He said hismanager later offered him a deal that includedan NDA, on the condition thathe drop his complaintwith the Canadian Human Rights Commission.

'Sometimes,NDAs are important'

Some lawyers, including Toronto-based employment lawyer Howard Levitt, have spoken out against banning NDAs. Levitt said NDAs are a legitimate tool used by companiespaying to protect their reputations.

Members of the Canadian Bar Associationvoted in favour of a resolution in February calling for NDAs to no longer be used as a tool to silence victims of abuse, harassment and discrimination.

Vancouver lawyer Jo-Anne Stark, who put forward the resolution,said that since it passed,the number ofsettlements has not "been reduced in any way."

She said the resolution doesn'tmean organizations can't use NDAs at all.

"Sometimes NDAs are important if you're releasing and employee and don't want to share trade secrets from that organization," said Stark.