'As lawyers, we should not be using NDAs as a tool to protect perpetrators of abuse'
When lawyers gather Thursday for the Canadian Bar Association annual meeting, they will get a chance to debate the use of non-disclosure agreements through a resolution that the CBA discourage their use to “silence victims and whistleblowers” who report experiences of abuse, discrimination, and harassment.
“NDAs have become a tool for silencing victims and protecting perpetrators,” says Vancouver Lawyer Jo-Anne Stark, who put forward the resolution. “This resolution seeks to raise awareness, prevent the misuse of NDAs, and promote a culture of transparency and accountability in organizations.
“As lawyers, we should not be using NDAs as a tool to protect perpetrators of abuse and harassment. Nor should we be expecting clients who bravely step forward to remain silent or feel forced to lie to others about what happened to them.”
She notes organizations and corporations’ increasing use of NDAs “to cover up abuse and harassment, which allows the perpetrators to continue their harmful behaviour.”
Discussing the resolution at the meeting will also help inform the legal community and improve the advice lawyers give their clients, says Stark. “It’s up to the legal profession to understand the impact of these agreements so the negative effects are minimized.”
If passed at the meeting, the resolution would obligate the CBA to “promote the fair and proper use of NDAs.” It would also have the CBA “advocate and lobby the federal, provincial, and territorial governments to enact changes to legislation and policies to ensure NDAs are not misused for the purpose of silencing victims and whistleblowers.”
Stark says there is a growing concern in the public “about this legal tool re-victimizing people.” She notes that the work of ongoing campaigns, such as Can’t Buy My Silence, has increased awareness around the issue by gathering “powerful testimonials” of people negatively impacted by the use of NDAs.
Limiting the use of NDAs to protect trade secrets
The use of NDAs was initially in workplaces to protect trade secrets. However, Stark says they are being used to cover up abuses in businesses, schools, youth clubs, universities, religious institutions, and other organizations.
Victims and whistleblowers experience an added layer of harm as they cannot speak about their abuse with friends, loved ones, co-workers and even therapists.
“This is a big step for the Canadian legal profession,” says Julie Macfarlane, emerita distinguished professor of law at the University of Windsor and co-founder of Can’t Buy My Silence. This group advocates against the abuse of NDAs.
Not only does her group want to see the use of NDAs limited, Macfarlane says victims who have already signed NDAs should be “released from their legally imposed silences.”
She says the #MeToo movement exposed the extensive use of NDAs to silence victims. More recently, Hockey Canada came under fire after it was revealed that multiple women sexually assaulted by professional hockey players had been required to sign NDAs.
At the same time, Macfarlane says a growing number of businesses and governments are shifting their policies. The BBC, Google and Apple are among the organizations that have pledged to stop using NDAs to cover up misconduct.
In July 2022, Prince Edward Island passed a law that restricts the use of NDAs in cases of harassment, misconduct and discrimination, and similar legislation has been tabled or is under consideration in four Canadian provinces. Sixteen US states have also legislated to restrict the use of NDAs.
Macfarlane says passing the resolution at the CBA meeting and continued lobbying will “further encourage politicians from across Canada to make NDAs illegal for anything other than the protection of trade secrets.”
Resolution to implement an action plan on Rights of the Child
Another resolution up for debate at the CBA meeting includes one urging the Canadian government to table a detailed action plan to implement the Convention on the Rights of the Child. It notes Canada was a key proponent of the Convention in 1991 and one of the first to sign.
The CBA motion asks that the plan “be tabled within one year of the release of those Concluding Observations, by June 9, 2023.”
If the resolution is adopted, the CBA will send a letter to the Prime Minister and other government officials calling on them to create a government action plan to implement the Convention fully. The resolution is sponsored by the Child and Youth Law Section of the Canadian Bar Association.
A resolution that paves way for a more diverse judiciary
A third resolution at the meeting asks that the CBA convene “relevant stakeholders” to review the Office of the Commissioner for Federal Judicial Affairs Canada’s self-identification data and discuss options to enhance the collection, analysis and reporting of intersectional data.
The purpose behind such a review would be to build a judiciary that better represents the diversity of Canada’s population and would help those who face racial and gender discrimination.
The motion comes from Olivia Coombe, a first-year student at the Lincoln Alexander School of Law in Toronto, and fellow law student Rosalyn Elizabeth Martin. It is sponsored by the Judicial Issues Subcommittee and Equality Subcommittee of the CBA.
Upholding French language rights within the CBA
CBA members will also debate a motion proposed by the French-Speaking Common Law Members Section to reiterate the CBA’s support of French-language rights, including the use of French within the CBA. It urges that internal communications be in French and English and that CBA members have access to continuing professional development in French.
"We have put this resolution forward because we believe it is important for the CBA to reiterate its commitment to promoting equal access to justice and the law in both official languages and to upholding the language rights of linguistic minority communities, says Pierre Permingeat, who is chair of the section. "The proposed resolution is a logical extension of existing CBA policies and public positions."
He adds the resolution "also seeks to emphasize the importance of, among other things, the use of French by and within the CBA and the development of professional development programs in French."
The agenda for the meeting, which will be held between 12:30 pm and 3:30 pm will also include speeches from federal Justice Minister David Lametti and Supreme Court of Canada Chief Justice Richard Wagner.