Halifax lawyer blasts N.S. government for inaction on non-disclosure agreements

A Halifax-based lawyer who supports the banning of non-disclosure agreements in cases of sexual assault and harassment says he doesn’t understand the Nova Scotia government’s lack of action on the issue.

“This is silliness to me — just silliness,” said Ron Pink.

“I can’t imagine who [Justice Minister Brad Johns] is protecting.… He’s protecting somebody, but certainly not the women of this province.”

Johns announced his government’s position on Thursday while also saying he does not believe NDAs should be used to silence survivors of harassment and abuse.

The Tory government has resisted calls to make the change over the last year so it could perform a jurisdictional scan —an assessment of what other jurisdictions have done about the issue. Pink said that should have been “a two-hour piece of work.”

On Thursday, Johns pointed to the fact that P.E.I. is the only province in Canada that limits how the agreements can be used, although he was otherwise unable to explain the rationale for his government’s decision.

“It’s a complex issue and there are pros and cons to both sides of the issue,” the minister told reporters.

Justice Department cites Manitoba report

A spokesperson for the Justice Department said in a statement on Friday that “significant research” was conducted in reaching the decision.

But after a jurisdictional scan that lasted a year, the only documentation the statement pointed to was P.E.I. being the lone province with legislation and a recent report by the Manitoba Law Reform Commission.

That report concluded that legislation prohibiting the use of NDAs in cases of sexual misconduct should not go ahead in Manitoba because it could “dramatically reduce pre-trial settlement of disputes involving allegations of misconduct.”

“Respondents and defendants are much less likely to settle claims prior to trial or adjudication if they cannot be assured of a full resolution, including a limit on publicity. The probable consequence of essentially banning NDAs would be to force complainants to forego compensation altogether unless they are able to pursue their claim to trial or an adjudicated hearing.”

Pink said the primary purpose for using NDAs in cases of sexual misconduct is to silence survivors. The document prevents people from speaking about their situation with anyone except their lawyer and possibly an accountant or treating physician, he said.

“You can’t talk to your family, you can’t talk to your friends, you can’t talk to anybody.”

While an NDA can perpetuate a survivor’s struggles, it also acts as a shield from public scrutiny for harassers and positions them to repeat inappropriate behaviour, said Pink.

“And that’s what happens here. There are no cons to this. People should be able to speak about this freely and openly and to shine a light on the men who are abusing women. Full stop.”

People who do sign NDAs are often forced into it because it can be the only way to get a settlement for damages they’ve experienced, said Pink.

“It takes a lot of courage to say, ‘I’m going to walk away from this money and go speak about it.’ Most people can’t afford it. Their lives have been turned upside down — often, including the loss of employment,” he said.

“And so they’re so far behind in their life and their financial affairs that they have to take the money just to move ahead with their life.”

‘It’s not a pretty situation’

If someone who signs an NDA decides later that they want to oppose it, the potential liability of speaking out can be severe, said Pink. The person risks having to return whatever money they received as part of the settlement and facing an additional claim for breaching the agreement.

Pink offered a blunt assessment of the Tory government’s decision.

“This is just a government who doesn’t want to protect women on these sorts of matters. Because it’s such a simple, easy thing to do and they don’t want to do it. Don’t know why.”

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