Authored by: Zahra Vaid, Elizabeth Grace and Vanshika Dhawan
One year after PEI’s Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in the province’s legislature, discussed in our blog In the Hot Seat: Non-Disclosure Agreements in Cases of Sexual Violence, multiple jurisdictions across Canada have been prompted into action.
Nova Scotia, Manitoba, and most recently, Ontario have tabled provincial legislation to regulate the use of non-disclosure agreements (“NDAs”). While Nova Scotia and Manitoba have introduced broad legislation to regulate NDAs in the context of sexual harassment and discrimination similar to what became law in PEI, Ontario’s initiative is narrower and deals only with sexual abuse in the post-secondary education sphere.
The Developing Approach to Regulating NDAs – PEI, Nova Scotia, and Manitoba
Prince Edward Island’s Non-Disclosure Agreements Act was passed on November 17, 2021 and came into force on May 17, 2022. Its purpose is to restrict the use and content of non-disclosure agreements in cases of sexual harassment and discrimination in all out-of-court settlements where a survivor does not want it. It is the first legislation of its kind in Canada. It follows the introduction of similar legislation in jurisdictions across the United States, as well as efforts currently underway in the United Kingdom, Australia, and Ireland. Though the impact of PEI’s Non-Disclosure Agreements Act has yet to be seen, other Canadian jurisdictions are following suit.
In Nova Scotia, a private member’s bill, Bill 144, Non-Disclosure Agreements Act, was introduced to limit the use of NDAs and confidentiality clauses in cases of discrimination and harassment, including sexual harassment. Nova Scotia’s proposed legislation is similar to PEI’s, with nearly identical language. If passed, Nova Scotia’s Non-Disclosure Agreements Act will only allow NDAs where it is the express wish and preference of the survivor, they have had an opportunity to obtain independent legal advice, and no undue attempts to influence them have occurred. Bill 144 passed its first reading on April 7, 2022.
In Manitoba, a private member’s bill, Bill 225, Non-Disclosure Agreements Act, was introduced to restrict the use of NDAs related to claims of harassment and discrimination, with the goal of better protecting survivors of sexual violence. Its language is substantially similar to that used in PEI and Nova Scotia. As of October 2022, Bill 225 has passed its second reading.
All three of these legislative schemes, whether enacted or proposed, put survivors of sexual violence in the driver’s seat. In other words, the NDA is prohibited unless a survivor makes a free and informed choice to enter into an NDA. This includes a reasonable opportunity to receive independent legal advice. However, even when the NDA is the expressed wish and preference of the survivor, it may still be prohibited in certain contexts, such as when the NDA adversely affects the public interest. All three schemes also provide that the NDA must allow for the survivor to waive the confidentiality by a process set out in the agreement itself.
PEI, Nova Scotia, and Manitoba have each introduced broad legislation aimed at varying forms of harassment and discrimination, extending beyond sexual violence. Ontario’s emerging approach is much more limited. It is focused only on a single sector – post-secondary education – and it deals only with “sexual abuse”.
Ontario’s Unique Position in Regulating NDAs
On October 27, 2022, Ontario’s Minister of Colleges and Universities Jill Dunlop introduced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022. Since its second reading, Bill 26 has been referred to the Standing Committee on Social Policy, which is expected to convene next week.
If ultimately passed, Bill 26 would amend existing legislation to require post-secondary institutions to implement policies to address sexual abuse perpetrated by faculty and staff against students. The proposed scheme would prohibit the use of NDAs in specific contexts.
Bill 26 provides a minimum definition of sexual abuse, informed by the Criminal Code and Human Rights Code, that includes physical sexual relations and touching, behaviour, or remarks of a sexual nature. The proposed legislation empowers post-secondary institutions to further define conduct that falls under sexual abuse in their respective policies.
Bill 26 would also allow institutions to discharge or discipline employees who have committed “sexual abuse”, as defined, against students and to create a prohibition for these employees’ re-employment even when doing so would violate existing employment contracts. The also reinforces former Premier of Ontario Kathleen Wynne’s “It’s Never OK: An Action Plan to Stop Sexual Violence and Harassment” by requiring post-secondary institutions to develop a sexual misconduct policy.
With respect to NDAs specifically, Bill 26 targets agreements, including settlements, which post-secondary institutions make with employees who were found to have committed sexual abuse. If Bill 26 passes, these agreements cannot contain provisions that prohibit the institution from disclosing that an employee was found to have committed sexual abuse against a student. The application of this in Bill 26 is narrow – it would only apply to findings of sexual abuse made by “a court, arbitrator, or other adjudicator.”
Notably, “adjudicator” is not defined in Bill 26 or relevant existing legislation. It is unclear whether “adjudicator” would include internal or external investigators, who are frequently brought in by post-secondary educational institutions to review and address concerns about sexual abuse and harassment. This is particularly problematic considering settlements often follow such investigations, and occur before courts or arbitrators become involved.
It seems Bill 26 affords post-secondary institutions significant discretion. Not only can they define “sexual abuse” in their own internal policies, but it is likely also open to them to define who constitutes an “adjudicator”. This would mean that individual institutions can determine whether the proposed legislative amendments apply to settlements that occur after investigations have determined that allegations of sexual abuse have merit.
Notably, there are no provisions in Bill 26 that speak to the wishes and preferences of the student survivor of sexual abuse. This could lead to situations where a survivor wishes to have an NDA in place but Bill 26 does not allow it. Further, the Bill’s prohibition on NDAs only prevents the disclosure of the fact an employee was determined to have committed an act of sexual abuse against a student. It would still be possible for limitations to be placed on what a survivor can say about their experience, the impacts this has had on them, and the terms of any settlement, including the amount paid.
Ultimately, if royal assent is obtained, these amendments would come into effect on July 1, 2023. The proposed amendments would not apply retroactively to agreements and settlements that pre-date the coming into force date of the applicable legislation, although the Bill would override existing collective agreements.
Access to justice for survivors of sexual violence is a key consideration in assessing any legislative effort concerning NDAs. Restricting the use of NDAs increases the likelihood that perpetrators and their enablers will be held accountable and empowers survivors to share their stories. However, in the context of litigation, prohibitions on NDAs can also reduce the likelihood of early settlements. This can lead to longer legal processes, which are not only time-consuming and costly but particularly burdensome on vulnerable and marginalized survivors.
Providing a survivor the opportunity to make an informed and genuine choice on whether or not to enter into an NDA, based on their unique situation and circumstances, is the best option to protect them and enhance access to justice. Affording a survivor this choice may also aid in their healing process, and allow for finality and greater closure. While Ontario’s legislation is a step in the right direction, it is narrow and focuses on the employment relationship rather than on the needs of the survivor. It remains to be seen whether Bill 26 will be further amended to prioritize survivors, or whether the province is content to allow post-secondary institutions to develop and implement specific policies regarding NDAs and sexual misconduct. It also remains to be seen whether similar prohibitions on NDAs will be introduced in other sectors in Ontario. One has only to think of elementary and high school students who have been abused by teachers and staff, and who gain nothing from the current proposed legislation, to appreciate how limited in scope Ontario’s Bill 26 is.
Next Steps – A Coordinated Legislative Effort?
While no legislation restricting NDAs has been proposed at the federal level to date, Senator Marilou McPhedran is expected to introduce legislation to the Senate in the coming months to prohibit NDAs for specified organizations under federal jurisdiction.
Whatever happens in the federal context, it is clear for now that PEI, Nova Scotia, Manitoba, and Ontario are at the forefront of an evolving discussion in Canada around the need to restrict NDAs. The impact of PEI’s and the emerging legislation will be measured in the years to come and will provide important and practical insight on how to make perpetrators of sexual violence and their enablers more accountable so the extent of this widespread problem in society is reduced, while also facilitating access to justice for survivors.
In Ontario, the Standing Committee on Social Policy will be reviewing Bill 26 and is holding public hearings on November 22, 2022. This provides anyone interested in providing input on the proposed legislation an opportunity to make written submissions to the committee by 7:00pm on November 22. More information on how to do this can be found on the Ontario Legislature’s website.