Registered nurse and Ontario serial killer Elizabeth Wettlaufer had a non-disclosure agreement with her employer. Zelda Perkins had a 20-year non-disclosure agreement with Harvey Weinstein, a movie mogul and serial rapist, before Perkins broke her silence and exposed him. A private member’s bill introduced in the Nova Scotia Legislature on Thursday seeks to restrict the use of non-disclosure agreements (NDAs) in circumstances where people have been the victims of harassment or discrimination.
“In sexual harassment settlements, it has been argued NDAs serve to silence victims and allow offenders to avoid public knowledge and indeed to evade full accountability,” said NDP Dartmouth South MLA Claudia Chender. “They can create a culture of silence in and around workplaces, enable the movement of predators from one environment to another, and discourage individuals from reporting crimes.”
Chender’s bill is modelled on legislation passed first in California in the wake of the #MeToo movement, and legislation passed in PEI last November. PEI is the first province to limit NDA use in cases of sexual misconduct. In Nova Scotia, the new law would prevent the use of a non-disclosure agreement unless expressly agreed to by the person harmed, and only after that individual received legal advice. The bill states NDAs must not “put at risk the public good.”
Non-disclosure agreements were originally used in business to protect patents, trade secrets, and intellectual property. In today’s world, they are increasingly a pay off used in settlement agreements to avoid public scandal and make complaints of racism or harassment go away. A shortlist where NDAs have been used in institutional settings include the Catholic Church, universities, Halifax Regional Municipality, the military, and the RCMP.
“Too many people who have come to Equity Watch for help have signed or will be pressured to sign a non-disclosure agreement,” explained Zainab Almukhtar, a spokesperson for Equity Watch, a group formed to tackle workplace discrimination in Nova Scotia. She attended the news conference hosted by Chender to explain the purpose of the bill.
“Simply put, NDAs amount to legal and psychological terrorism,” said Almukhtar. “They work to ensure that victims and the issues they raise are forever silenced because the legal costs can be exorbitant.”
One woman’s story
Journalists attending yesterday’s bill briefing got a first-hand glimpse of one of the difficulties posed by an NDA. A woman came forward to speak in support of Chender’s bill to limit the use of NDAs in preventing victims from speaking out. She had signed an NDA. There were tears as she struggled to control her emotions and tell her story for the first time publicly, taking care not to reveal the name of her workplace or the name of the accused so as not to break the confidentiality provisions of the NDA.
“In 2014-2015, I was the victim of multiple sexual assaults perpetrated by a work colleague. For a long time after, I struggled with my fear of bringing forward my allegations in any formal capacity. I had witnessed the public struggles of many women before me in their pursuits of accountability and I feared I would be no exception — I still do. It took me several years, but I did finally find the courage to report these incidents, first to the HRM police and then the RCMP.”
According to the complainant, several charges were laid against the male perpetrator who did not show up for the first court appearance in December 2019. The woman says the accused is an American citizen who no longer lives in Canada. A warrant has been issued for his arrest, but the Public Prosecution Service has refused her request to have him extradited back to Nova Scotia.
“What if I am not the only one?” the woman asked. “The way to stop abuse is to bring it into the light.”
The woman had agreed to let journalists use her name and take her photograph. Her goal was to help people understand why this law is needed. A couple of hours later, reporters learned identifying the woman “may or may not” jeopardize the criminal case brought against the accused. On one hand — because the accused did not show up in court — there is no publication ban in place. Technically, the Examiner could name her. But if the accused is brought back to Canada, the law says the complainant must apply to the court to waive the publication ban before she can go public. This is a murky area, obviously, but one that has the potential — however tiny — to torpedo a prosecution that has already encountered numerous obstacles.
This woman clearly wants closure. Signing an NDA — often for money, although in this particular case we weren’t given the opportunity to ask any questions — should offer that, one might think. And yet, according to Kristina Fifield, a trauma counsellor who works at the Avalon Sexual Assault Centre, that is often not the case.
“In my work with individuals who have been impacted by sexual violence and harassment, this process is silencing survivors and can have long lasting impacts after settlement agreements are signed where NDAs are used,” said Kristina Fifield, trauma therapist. “The misuse of NDAs prevents survivors from moving on, leaving them feeling blamed, doubted, and revictimized.”
What are the chances a bill to restrict the use of NDAs will get passed in the legislature? Chender said she has had discussions with the Department of Justice and Status of Women, and the Houston government is looking at the issue and may introduce legislation in the fall.