Time for N.S. government to join Acadia, King’s College in banning abuse of NDAs, Chender says

Acadia University and the University of King’s College have taken a step that the provincial Progressive Conservative government has backed away from.

“The PCs were very open to the idea and were in dialogue with the people behind the Can’t Buy My Silence campaign,” NDP Leader Claudia Chender said Friday of the Progressive Conservatives prior to their August 2021 majority election victory.

“When they were elected, they initially signalled that they were going to bring forward (non-disclosure agreement) legislation similar to the one in Prince Edward Island and similar to the one that we subsequently introduced, Bill 144 (on April 7, 2022). Then, they had an inexplicable about-face.”

The about-face came into focus on Sept. 21 when Justice Minister Brad Johns told reporters the government would not ban the use of non-disclosure agreements in cases of sexual assault and harassment.

“I don’t support NDAs being used as a method to silence victims, but at the same time we’re just not moving forward with it right now,” Johns said.

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

The Justice Department initially said it would conduct a jurisdictional scan to examine similar legislative bans in Prince Edward Island, the first Canadian province to introduce such a prohibition, and U.S. states where the practice is banned.

Johns said the government considered multiple factors in making its decision and he implied that there were undisclosed problems with the P.E.I. law.

‘No reason’

“For a long time when pressed about that, (Johns) gave no reason at all and at some point said something to the effect of some people believe we should still be able to have NDAs in these situations,” Chender said Friday.

“It’s worth noting and we have pointed this out numerous times to the minister that in our draft legislation and the P.E.I. legislation on which it’s based, parties are able to enter into a non-disclosure agreement if they both have sought and been able to receive fully independent legal advice.”

Chender said what the NDP bill does and what the pledge taken by Acadia and King’s does is “prohibit the misuse of NDAs.” 

The NDP leader said non-disclosure agreements originated in situations where trade secrets had to be protected.

“That is the appropriate use of them but they have grown in subsequent decades to be a very powerful tool for covering up wrongdoing and our bill seeks to change that, the P.E.I. legislation changes that and we are now very proud that two Atlantic universities have agreed to take that step.”

In adopting the pledge Thursday, University of King’s College president Bill Lahey said the university vows to never use a non-disclosure agreement in a case involving sexual harassment, discrimination, bullying and other forms of misconduct.

Lahey said NDAs are sometimes used as a tool to silence victims in circumstances of sexual misconduct, racism, pregnancy discrimination and other human rights violations. 

Hankey response

He said King’s adoption of the pledge is in keeping with actions taken in response to recommendations made by law firm Rubin Thomlinson in the independent review of accusations of sexual assault against former King’s professor Wayne Hankey.

“In particular, it is consistent with how King’s acted on the second recommendation of the Rubin Thomlinson final report, which called on the university to make amends to individuals harmed by Dr. Hankey,” Lahey said. “In settling claims against the university arising out of Hankey’s misconduct, the university did not ask or require any claimant to enter into a non-disclosure agreement.”

At Acadia, university president Jeff Hennessey said the pledge is important and the university was proud to sign it.

“The misuse of NDAs can lead to significant harm,” Hennessey said. “It’s important that victims not only recognize the support readily available but also feel empowered to openly share their experiences.”

Allison Smith, on-campus co-ordinator of the university’s sexualized violence response policy, said “our decision to sign the pledge reflects our commitment to fostering safer spaces for survivors” and all members of the university community.

“The freedom to share one’s story can be vital to a person’s healing process,” she said.

Chender said the Atlantic provinces have experienced high-profile examples of people using non-disclosure agreements to cover up wrongdoing.

“The P.E.I. legislation came out of the gross misconduct of the former president of UPEI (Alaa Abd-El-Aziz) who was protected for far too long by non-disclosure agreements of victims, many of whom have recently come forward subsequent to the passing of that bill,” Chender said.

Another example of NDA abuse is the Hockey Canada scandal at the 2003 world junior championship in Halifax.

“Where this legislation has gone forward, it has come forward on the heels of these types of scandals,” Chender said. “Across the United States, in the wake of the Harvey Weinstein revelations around his decades of serial misconduct, the U.S. decided to start getting serious about it and now I think 17 jurisdictions have passed laws outlawing the misuse of non-disclosure agreements.

“We have those examples of wrongdoing here and I believe it’s really time for us as a province to act.”