Let me recap. It’s confusing. But perhaps not really.
Last year, Justice Minister Brad Johns, under pressure from the opposition and others to bring in legislation to ban the use of non-disclosure agreements — those binding legal contracts often used to prevent victims of sexual and other forms of harassment from ever, ever discussing what happened to them — punted. He said his government would first need to do an “environmental scan” of laws in other jurisdictions to see how they had handled this legally sanctioned abuse, mostly of women and the powerless.
That onerous task appears to have taken his government a full slow-walking year, despite the fact some legal experts suggest all it really requires is a few hours with a computer and Google.
Last year, we already know, Prince Edward Island became the first Canadian jurisdiction to limit how NDAs can be used. Some US states have also banned the practice.
The government’s sweat-inducing, see-the-flour-in-my-face environmental scan is now finally complete.
Johns won’t say.
But his government has come to a non-decision. It won’t introduce legislation to ban the use of such agreements in cases of sexual harassment and assault, even though he says — Tsk, tsk — the use of the law in such ways is not … good.
“I don’t support NDAs being used as a method to silence victims,” he told reporters after last week’s cabinet meeting, “but, at the same time, we’re just not moving forward with it right now.”
Why did his government make that decision?
“Multiple factors,” answered John.
What factors, asked reporters?
“I can follow up with you,” Johns responded limply. “I have it written all down. I don’t want to say something and be misquoted, that’s all.”
It is worth noting that Johns was worried about being misquoted while speaking to a group of reporters holding recorders. Was Johns really worried about being misquoted or simply quoted accurately offering still more mealy-mouthed excuses for his government’s inaction?
At one level, none of this makes any sense.
Soon after the Houston government was elected, Liz LeClair, who’d refused to sign an NDA when she was harassed on the job and is now a member of an international advocacy group, Can’t Buy My Silence, “sat down… with [then-Community Services Minister] Karla MacFarlane and her team. I was assured by Karla and her team that they thought that [proposed NDA legislation] was a great bill. They wanted to bring it forward. It was brought to the cabinet table, and I was informed at that table that they were told that it was not going to proceed.”
Speaking out of one side of his forked tongue on the issue, Premier Tim Houston in October told reporters that figuring out what to do about NDAs was “an active, urgent situation,” and his government was super keen to figure out what was in the “best interests of Nova Scotians.”
Two weeks before, unbidden, Houston had even weighed in on the Hockey Canada scandal — a scandal that included the use of NDAs to silence victims — just as Halifax was gearing up to host the World Junior Hockey Championships.
“I am deeply disappointed by what we continue to see with Hockey Canada,” he said. “Before the 2023 IIHF World Junior Championship goes forward, we need to see some meaningful changes that respect the concerns of Nova Scotians and Canadians.”
The championships went ahead as scheduled. Anti-NDA legislation? Not so much.
Speaking out of the other side of that forked tongue of his, Houston told reporters, “I’m not aware of situations where people would be forced to enter into [NDAs].”
It’s all very confusing. Unless it’s not.
Let’s circle back to April of this year when former-Progressive-Conservative-turned-Independent MLA Elizabeth Smith-McCrossin stood up in the legislature to claim that her former executive assistant “was coerced into signing a [non-disclosure agreement] with the Progressive Conservative caucus.”
The aide, Kaitlin Saxton, who’d served as a communications staffer in the PC caucus office for seven years, resigned in 2018. (Hold that date in your head.) She had died in June 2022 of a brain hemorrhage. But her parents confirmed Smith-McCrossin’s allegation… and more.
Kait was coerced into signing [a non-disclosure agreement]. That is a fact. But what was worse for her was the total abandonment she endured from her ‘friends’ in the caucus office… Kait was ghosted and had no other choice but to come home and heal … Her career she dearly loved was over, and she was treated like a pariah.
Houston’s Tories took great umbrage at the allegations.
The premier’s office issued a statement denying all — or almost all.
We can confirm [neither] the caucus nor the PC party ever had an individual sign an NDA with respect to this matter. I can also confirm the document tabled in the legislature by Elizabeth is not a document that was prepared for or by nor was it entered into by the PC Party, PC Caucus, PC Party President, or PC Party interim leader or current leader.
Hold that semi-denial denial too.
Karla MacFarlane even introduced a motion in the legislature to kick Smith-McCrossin out of the House and prevent her from taking her seat again until — and unless — she retracted her description of the “alleged non-disclosure agreement” and, oh yes, apologized for ever having suggested as much.
But after Smith-McCrossin threatened legal action, the government dropped that threat, declared victory and said it was time to move on. “I’m satisfied it’s a retraction,” Houston said of McCrossin-Smith’s non-retraction, “and it’s as close as we’re going to get, and I’m ready to move forward, that’s it.”
Let’s stop there. Back to 2018 and the non-coincidental timing of Saxton’s resignation. In late January 2018, then-PC leader Jamie] Baillie abruptly resigned after a unanimous request from his own caucus. That followed an independent third-party investigation. The details the party disclosed were sketchy, but they did involve inappropriate behaviour, including sexual harassment of an unnamed party staffer.
Baillie, you’ll note, wasn’t mentioned in the almost-blanket denial the premier’s office issued in response to the allegation.
When I emailed Baillie at the time to ask if he had had “any involvement in this matter during or after your time as PC leader,” his response was quick and unresponsive: “Thanks for your note. I do not make a habit of commenting on matters that are before the House and will not start now.”
So, the confusion seems less confusing. Jamie Baillie, or someone acting on his behalf, struck a deal to cover up what happened that led to his resignation, and the government is now doing its best to cover up the cover-up, which is the real reason why the government is so reluctant to go forward with non-disclosure-agreement legislation that one of its senior ministers once told advocates “was a great bill.”
I can’t prove that, of course, and it may not even be true. But it is a reasonable conclusion based on what we know.
It is up to Tim Houston and his government to show why that conclusion isn’t the right one.