No sign of change to NDA law even as N.S. justice minister looks to discuss issue with counterparts

Nova Scotia’s justice minister wants to discuss how non-disclosure agreements are used in cases of sexual assault and harassment when she meets next month with her provincial and territorial counterparts.

But if there is any change in the Progressive Conservative government’s stance on the issue, Premier Tim Houston wasn’t signalling it on Thursday.

Under former justice minister Brad Johns, the Tories rejected calls from opposition parties and advocacy groups to pass reforms that would limit the use of non-disclosure agreements, or NDAs, in an effort to remove the inherent power imbalance.

Responding to a question from Independent MLA Elizabeth Smith-McCrossin on the issue during question period, Justice Minister Barb Adams said she requested the subject be added to the agenda for meetings next month in Yellowknife with all the federal, provincial and territorial justice ministers.

“It isn’t necessarily a national issue, but it needs to be recognized,” she told the legislature.

Taking away an option

Adams said she’s also met with advocacy groups, unions and reviewed existing legislation. P.E.I. is the only province in the country with legislation that limits the use of NDAs in cases of sexual assault and harassment, although some U.S. states have also made changes.

Speaking to reporters, Houston repeated talking points Johns previously used when he was justice minister, including that the government is doing jurisdictional scans and that some survivors say they wanted to be able to use non-disclosure agreements.

“When we ban them, we take away an option, and I think right now there are different options,” he told reporters.

The legislation the NDP caucus has tabled multiple times at Province House would not ban the use of NDAs, but rather ensure that if they are entered into, it is done so willingly by a survivor and without any type of pressure.

Houston said there are discussions about the government providing legal advice to people before they sign an NDA and that it’s “good government” for Adams to be meeting with people and discussing the issue.

NDP Leader Claudia Chender said she has no confidence the government will make changes to the law just because Adams is having meetings. Ultimately, she told reporters, Houston is the premier and he’s going to set the direction for his government.

“This isn’t the first time this session that we have heard one thing from a coherent, seemingly compassionate minister on the floor of the House and another tone-deaf door closing from the premier in front of the cameras.”

It’s “astounding,” said Chender, that Houston continues to think not changing the law is a way to preserve choice for survivors.

Chender noted that she worked on a bill to restrict the use of NDAs with former Tory cabinet minister Karla MacFarlane while the now-retired MLA was still in opposition. Momentum for the change ended after the Tories formed government in 2021.

Minister waiting for more input

Liberal Leader Zach Churchill, whose party has backed the NDP bill, said it doesn’t seem like the premier understands the legislation that’s been advanced by the opposition.

Speaking to reporters after question period, Adams said there is “a lot of work going on” on the issue.

Along with the meetings scheduled for next month in the Northwest Territories, Adams said she’s already discussed the issue with the justice ministers for P.E.I. and New Brunswick and federal Justice Minister Arif Virani.

She’s also met with unions and advocacy groups including Can’t Buy My Silence, which is calling for legislative and regulatory change that would make NDAs unenforceable unless they are being used to protect confidential business information such as intellectual property or trade secrets.

Adams, who would not say if she’s open to changing the law, said the Uniform Law Conference of Canada has a task force that’s studying NDAs and that work is expected to be complete next year ahead of the organization’s meeting scheduled for August in Halifax.

According to its website, the organization provides “independent and informed analysis and recommendations for the harmonization and reform of laws in Canada.”