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Proposed legislation would stop NDAs from being used to ‘silence’ harassment victims: Furstenau

Sonia Furstenau’s legislation comes after Canadian Bar Association criticized NDAs

Proposed legislation to protect victims of discrimination and harassment in British Columbia — many of whom are women — is getting a thumbs-up from Canada’s largest professional association for lawyers.

The Canadian Bar Association, BC Branch said in a statement to Black Press Media that it is pleased to see a bill from BC Green Party Leader Sonia Furstenau that would make it illegal for employers and other organizations to misuse non-disclosure agreements in cases of harassment or discrimination.

“Non-disclosure agreements can be used to prevent victims or whistleblowers from seeking help, asking for change, or supporting others who might have similar experiences,” it reads.

Furstenau said NDAs initially tried to protect the sharing of trade secrets.

“(But) they’ve become tools to silence victims of workplace discrimination and harassment — including sexual harassment, racism, ableism, or other forms,” Furstenau said, pointing to the role of NDAs in the Hockey Canada and Canadian Hockey League scandal involving an alleged group sexual assault by junior hockey players on a woman.

If legislation were to pass, B.C. would be joining Prince Edward Island as the only two provinces to have such laws. Manitoba and Nova Scotia are considering comparable legislation.

Furstenau tabled the bill after the national bar association passed a resolution in January about NDAs. The association promised to “discourage their use to silence victims and whistleblowers who report experiences of abuse, discrimination and harassment in Canada” while promoting the “fair and proper use of NDAs as a method to protect intellectual property.”

The association also committed itself to lobby federal, provincial and territorial authorities to ensure NDAs are not misused for silencing victims and whistleblowers.

The resolution points out that the “widespread and systemic use” of NDAs protects the reputations of employers at the expense of victims or whistleblowers unable to report or discuss their concerns, with women five times more likely to sign NDAs than men.

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“We know that victims of discrimination and harassment are more likely to be women, especially those facing sexual harassment,” Furstenau said, adding that all genders report harassment at work by supervisors, clients or colleagues.

“This is a pervasive issue across the province and around the world and it’s time that British Columbia steps up to make our workplaces a safer, more transparent place for everyone, especially those who are most vulnerable.”

NDAs not only create silence after acts and allegations of harassment, but also discourage victims from taking an action at all, according to research from UK-based Speak Out Revolution. It found almost 30 per cent of surveyed respondents said they did not file a formal complaint because they anticipated that they would be asked to sign an NDA and did not want to.

Furstenau’s legislation has appeared against the backdrop of efforts by lawyer Julie Macfarlane and Zelda Perkins, who had broken her NDA with former movie producer and convicted sex-offender Harvey Weinstein. The pair are co-founders of Can’t Buy My Silence and have been campaigning for years to limit NDAs to intellectual property and trade secrets.

“We are delighted that Sonia Furstenau has brought forward this legislation,” Macfarlene told Black Press Media.

“It will stop the harm that is presently being inflicted on many British Columbians who are told they ‘must’ accept a permanent gag on them speaking even to family or therapists, in exchange for compensation and settlement. This is exploitative and wrong.

“We know that the B.C. public will support this measure and we hope that the BC (government) will recognize the importance of supporting this bill.”


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Wolf Depner

About the Author: Wolf Depner

I joined the national team with Black Press Media in 2023 from the Peninsula News Review, where I had reported on Vancouver Island's Saanich Peninsula since 2019.
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