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Bill to Ban Abuse of Non-Disclosure Agreements in Harassment, Bullying, and Misconduct Cases

Manitoba Liberals introduced Bill 225 today, designed to reform Non-Disclosure Agreements (NDAs) in Manitoba so survivors of sexual harassment, intimidation, and misconduct cases can no longer be forced into silence through a legal agreement.

If the bill wins the support of the legislature, it will mean that Non-Disclosure Agreements in Manitoba cannot apply in cases of sexual harassment, intimidation, or human rights violations.

The bill is part of a growing global campaign "Can't Buy My Silence" led in Canada by Dr. Julie Macfarlane, Professor Emeritus of Law at the University of Windsor, who was sued for defamation after speaking up about information hidden in an NDA made by her university and a faculty member being terminated for harassment, and by Zelda Perkins in the UK, who broke an NDA after working for Harvey Weinstein, the Hollywood movie producer who used his power to commit sex crimes.

Manitoba Liberal Leader Dougald Lamont, MLA for St. Boniface, said NDAs may be abused to silence anyone who speaks up about wrongdoing - students, co-workers, and other victims of workplace mistreatment.

"NDAs were created in the 1980s as a way to keep people from walking out the door with valuable company secrets, which is fine," said Lamont. "What we want to stop is the abuse of NDAs, which have provided powerful people and institutions with a legal tool to enforce cover-ups. Our goal with this bill is to make it easier for people to speak and easier to get justice."

People who have signed NDAs may struggle because they cannot speak with family, friends, or counsellors about what they have experienced or witnessed. While they can go to the police, they may be afraid to.

They may be pressured into signing an NDA believing it is the only way to be compensated - and that is not true. No one should ever have to sign a gag order to be compensated for being wronged.

The legislation requires that an NDA can only be enforceable if it is the expressed wish and desire of the complainant. They must also have had the opportunity to get independent legal advice before they proceed with one.

"These agreements, which are being used to threaten people with legal consequences, are being used to cover up abuse, and in some cases criminal acts," said Macfarlane. "NDAs are used to cover up abuse in workplaces, schools, youth clubs, universities, and religious institutions - the list is long and shocking. NDAs keep settlements secret when revealing the details would embarrass the wrongdoer and their employer."

Shannon Hancock was a registered nurse who made a complaint about bullying and reprisals in her workplace as well as whistleblowing about the security of patient information (all protected by law) first to her employer, the Winnipeg Regional Health Authority, in April 2012 and then to the Manitoba Ombudsman in February 2013. She was assured in writing that she was protected from reprisal. When the case was brought to arbitration, she was met with a team of lawyers. The result was that lawyers for the union and employer decided to settle the case. In July 2014, Hancock was coerced into signing an NDA to keep the details of her bullying complaint hidden.

"It was clear that the focus was to silence me and to move forward to protect the image of the Union and Employer," said Hancock. "This was completely unacceptable to me since it prevented me from doing my job as a regulated health professional. Because I could not speak out about what happened to me, others were silenced and harmed, further contributing to the nursing shortage. Silencing nurses working in a publicly funded healthcare system is not a labour relations issue. It is a public health issue. It is not in the public interest to silence us."

Dr. Jennifer L. Schulz is a law professor at the University of Manitoba and believes NDAs are a disservice to Manitobans. "In the past, university professors have committed wrongful acts. For example, in the Faculty of Music, a male professor harassed female students and a Law Dean expropriated university funds. NDAs protected both the university and the professor and dean. This is a disservice to Manitobans, who help fund the university through their tax dollars, and are not made aware of these wrongful acts," said Schulz.

Disgraced Winnipeg fashion mogul Peter Nygard also used NDAs to silence individuals who worked at his company. Nygard is facing extradition to the USA for a class action civil suit in New York, and has been charged with sex crimes in Toronto and Montreal on allegations of sexual assault.

PEI MLA & Deputy Leader of the Green Party Lynne Lund introduced similar legislation last year. The PEI Legislature passed it unanimously on November 17, 2021, and legislation to ban NDAs for misconduct have been passed or are pending in almost 20 US states.

"We have consulted with lots of folks about this, and we hope that all parties in the Manitoba legislature will support the bill, because every MLA and every party has constituents who could be affected and will benefit from this bill passing," said Lamont.

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