Hockey Canada scandal shows the need to ban non-disclosure agreements, advocates say

There are growing calls to outlaw non-disclosure agreements across the country as Hockey Canada and other sports organizations reel from sexual assault scandals, including some that led to multi-million dollarpayoutsto keep details about the incidents secret.

Non-disclosure agreements can prohibit sexual assault complainants from speaking publicly about their allegations in exchange for a settlement.

University of Windsor law professor JulieMacfarlanehas helpedprovinces draft legislation toprevent the abuse of non-disclosure agreements (NDAs). She's now advocatingfor the federal government to do the same.

"The Hockey Canada story has illustrated the pervasiveness and the ubiquity of non-disclosure agreements in just pushing everything back under the rug again," saidMacfarlanewho is the co-founder of a campaign called "Can't Buy My Silence."

"There's no identification of the perpetrator and no consequences that are known. This gives them permission to continue to behave in the same way."

Before Hockey Canada put a new spotlight on the issue, P.E.I. became the first province in May to limit the use ofNDAsinvolving discrimination and harassment allegations including sexual misconduct.NDAscan now only beimposed in these cases inP.E.I.if acomplainant wants one.

Manitoba and Nova Scotia introduced similar bills this year. SenatorMarilouMcPhedransaid she also plans totablea federal bill in the Senatenext month.

Amid the movement to regulateNDAs,the federal labour minister's office said it's engaging with stakeholders, but there are currently no plans to change the law.

The Minister of Sport,PascaleSt-Onge, has spoken out against NDAs and said areview into funding for sports organizations will examine the issue.

WATCH|Woman at centre of Hockey Canada lawsuit breaks silence

Woman in Hockey Canada Lawsuit breaks silence

2 years ago

Duration 6:31

The complainant in a sex assault lawsuit against Hockey Canada spoke with Robyn Doolittle from the Globe and Mail, who shares more on this case. Doolittle says that the woman says she has fully co-operated with the investigation despite Hockey Canada originally saying she didn't.

Hockey Canada is the latest organization to come under fire for its use of NDAs to settle some sexual assault allegations.

The hockey organization recently released a woman fromher confidentiality agreement, a day ahead of a parliamentary committee where MPs grilled Hockey Canada's executives about its handling of the case.

The woman had filed a $3.5 millionlawsuit in April alleging she was sexually assaulted in 2018 by eight Canadian Hockey Leagueplayers including members of the World Junior team.

As part of the settlement, the woman signed an agreement prohibiting her from talking about the allegations. But the agreementallowed herto communicate her wishesto stay out of the public debate, her lawyer Rob Talach told CBC News on Tuesday.

'Avisceral, outright ban...will ultimately hurt some survivors'

Talach said his client's case has sparked an "important discussion" about NDAs in Canada, but he's concerned a full ban onNDAscould limit some victims' options during negotiations.

"I think a visceral, outright ban of the NDA will ultimately hurt some survivors," Talach told CBC News. "It may result in some survivors getting nothing because there's nothing to trade for."

Talach has represented sexual abuse complainants for almost 20 years and says he generally doesn't negotiate NDAs, except if the agreement seeks only to limithis clients from disclosing how much money they received, a tactic that he says can protectdefendants from "splashy headlines."

He also said, legally,NDAs cannot prevent complainants from speaking to police or seeking therapy.

WATCH |Hockey Canada drops NDAwith complainant in alleged sexual assault case.

Hockey Canada drops NDA with complainant in alleged sexual assault case

2 years ago

Duration 2:43

Hockey Canada has dropped a non-disclosure agreement with the woman who was allegedly sexually assaulted by a group of players in 2018. Meanwhile, some lawyers and advocates are pushing for NDAs to be banned in some cases altogether.

Talachsaid he generally supports a ban, but thinks there should still be a way to obtain them incases where it helps the complainant obtain a settlement or accountability. Heproposes thatajudge at the Superior Court of Justice could oversee the granting of NDAs

"If the parties can't convince the judge that the NDA is fair and mutually agreed upon, then it doesn't happen," he said.

NDAs can mean larger settlements, says lawyer

Toronto-based lawyer Howard Levitt says he's negotiated hundreds of NDAs for various issues and that employers or companies would unlikely provide adequate settlements without them.

"I can get a woman oftentimes $1 million plus settlements," said Levitt. "If there wasn't an NDA I'd get a tenthof that or less."

Companies are paying to protect their reputation, said Levitt. If a complainant receives a substantial settlement, Levitt said, then goes out and "defames" them or"viciously talk about their experience" they "aren't getting value for what they're paying for."

Levittsaid compensation helps complainants get back on their feet and can restore"justice to some extent." Levitt was also critical of Hockey Canada's handling of sexual assault allegations and said that in the corporate worldalleged perpetrators are "fired in a heartbeat" to prevent further cases that could end up in court.

Lynne Lund, a Green MLA in P.E.I.,says that silence is allowing sexual misconduct to fester and "predators to stay hidden in plain sight."

"When organizations have the ability to silence people, to gag people, they will always choose to protect their reputation over protecting the general public," said Lund.

She introduced the bill restricting the use of NDAs in her province and isnow offering to help politicians of any political stripe in any province to draft similar bills.

"It's been a huge comfort to people who signed NDAs in the past to know it's not going to happen to people in the future," she said. "Every province needs to tackle this issue. Hockey Canada is doing a really good job making that point for me."

Woman who signed NDA calls it 'unethical, immoral'

A B.C. woman signed a non-disclosure agreement two years ago and calls it "unethical, immoral and damaging."

She reported to her workplace that her boss was repeatedly sexually harassing her on the job. CBC News agreed to keep her name confidential over her concerns about potential legal repercussions.

The woman said she reported her allegations because she wanted an apology and for action to be taken. But instead, she said the university in B.C. where she worked offered her a settlement that allowed her boss to keep his job, but forced her to leave.

She said her lawyer told her she had no option but to sign the NDA if she wanted a settlement.She unsuccessfully tried to negotiate an exception, she said.

"I said 'what if this happens again and another victim finds me and then comes to me?,'" she recalled askingher employer. "Can I share my story with that person? The answer was no...It made me feel sick"

In a statement, the office of the minister of labour said new requirements for employers went into effect in January to prevent harassment and violence in federally regulated workplaces. The new measures will be reviewed within five years.

A senior government source with knowledge of the file says a preliminary legal analysis shows banning NDAs could pose a jurisdictional risk because it falls under the provinces' responsibility and further legal analysis is needed.

The review into federally-funded sports organizations is scheduled to be completed withnew changes in effect by April 2023.