Susan MacRae wants to talk about what happened to her, but she can’t.  

As a young girl, MacRae  signed a non-disclosure agreement that prohibits her from discussing  sexual abuse she suffered, even with family members or therapists. 

In 2018, a judge upheld that NDA even though the other party — her father — was dead. MacRae, a Vancouver writer, says it changed her life.   

“As a poet, you deal a lot with silences.  And if you have a forced silence in any part of your life, that can  really taint your sense of self,” she said. “It really poisons it.” 

MacRae is now part of an international campaign trying to restrict the use of NDAs — including in British Columbia. 

The BC Green Party  introduced a private member’s bill this month that would ban the use of  such agreements in cases involving discrimination and harassment,  arguing the prevalence of NDAs silences victims and has a chilling  effect on would-be complainants. The bill isn’t likely to be debated.

Ontario, Manitoba and Nova Scotia are all  pondering similar legislation, and the BC NDP government says it is also  studying the issue — though it has not committed to legal reform. 

Jennifer Khor, a lawyer at the Community  Legal Assistance Society, says that lawyers are now reconsidering why  and if NDAs are truly necessary. 

“Particularly in Canada, the profession is looking at taking a more trauma-informed approach,” Khor said. 

“Really the use of NDAs in this way is causing harm.” 

Khor said non-disclosure agreements were originally used by employers to protect trade secrets and intellectual property. 

But over her decades of legal work, she  says they’ve been used to stop employees from talking about “almost  anything,” especially situations involving whistleblowing or sexual  harassment. 

The argument for NDAs is that they grant  both parties privacy and confidentiality. But Khor said many employees  feel pressured to sign such contracts when accepting a job or  negotiating severance or other settlements.

In some cases, she said, the contracts  don’t have exceptions for people like family members or counsellors.  They can also interfere with career prospects, she said, because people  may not be able to tell future employers why they left that job. In some  cases, Khor said, people may not come forward with issues at work  because they anticipate having to sign an NDA, creating a chilling  effect. 

“They feel like they can’t access the  support they want or talk to a counsellor. Sometimes I’ve heard it  affects their next relationship, because they can’t talk about it and  explain why they might be acting a certain way,” Khor said. 

Today, the tide is turning against NDAs.  Multiple U.S. states have passed or are considering laws limiting the  use of such agreements. Ireland is set to pass its own. Prince Edward  Island became the first Canadian province to pass such a bill in 2021.  It came into force last year. 

Part of that change was sparked by the  Can’t Buy My Silence campaign, a grassroots movement begun in September  2021 by emerita law professor Julie Macfarlane and Zelda Perkins, a  former assistant to Harvey Weinstein. 

But Macfarlane says even she was shocked by how fast change has come. 

“I think what has happened in the last 18  months has been really kind of remarkable. Because it feels like this is  an issue for which the time has now come,” Macfarlane said. 

By definition, we don’t know how many  people have signed NDAs. But Macfarlane and Khor say their anecdotal  experience is that such agreements are remarkably common.  

“The pervasiveness of them in everyday  working peoples’ lives has been so well hidden. And now I think the  curtain is being pulled back a little bit here,” Macfarlane said. 

The bill introduced by Green Leader Sonia  Furstenau — which Macfarlane calls the “model” for Canadian provinces —  would make it illegal to sign an NDA relating to sexual harassment or  discrimination unless it is the express wish of the person harmed. 

And if an NDA is signed, it says the  agreement must be for a set and limited duration, and must have options  for the harmed person to waive their own confidentiality.

It also explicitly states there must be  exceptions to any confidentiality clause that allows a person to speak  to a therapist, an elder and specified friends and family, among others.  

B.C. Attorney General Niki Sharma was not  available for an interview. In a prepared statement, she said the  government had “been actively researching the use of NDAs and  legislative developments in other jurisdictions to determine next steps  in B.C.”

“Non-disclosure agreements and other  confidentiality agreements can serve a role in some contexts when used  appropriately but we don’t want them to be misused to silence  survivors,” Sharma said. 

The government hasn’t committed to  supporting Furstenau’s bill, nor has it explicitly said if it plans to  introduce its own legislation on the issue. 

Macfarlane said some lawyers argue NDAs serve a role by guaranteeing confidentiality and privacy for the parties involved. 

But Khor said those things can often be achieved through different forms of agreements. 

The Canadian Bar Association, for example,  adopted a resolution earlier this year urging members not to use NDAs in  cases involving harassment and discrimination.  

In most cases, Macfarlane said, people who  sign NDAs do not want to talk about their experiences publicly. “There’s  a very distorted public impression that everyone wants to scream from  the rooftops,” Macfarlane said. 

In reality, Khor said many people who sign  NDAs may only want to discuss the matter with friends or medical experts  but fear legal repercussions, even if they are not likely. 

“The average person doesn’t know that,” she said. 

Dalya Israel, the executive director of the  Wavaw Rape Crisis Centre in Vancouver, says the organization has  noticed an uptick in survivors who are limited in what they can discuss  because of NDAs. 

“We have a couple of survivors that access  the crisis line a lot, because they are so unsure about how they can  talk about their assault,” Israel said. She believes such agreements are  detrimental not just for survivors, but also for perpetrators and  organizations, since they conceal wrongdoing instead of creating an  opportunity for accountability. 

“They create fear around people choosing to  report or seek accountability and create that larger freeze around the  desire to seek out and engage people in talking about what’s happened to  them,” Israel said. 

MacRae has bittersweet feelings about the  bill being introduced in B.C. On one hand, it’s something she and her  mother have wanted for years. On the other, the law would only apply to  new agreements and wouldn’t affect her own NDA or those already signed  by other survivors. MacRae said she has written to lawmakers for years  seeking change, and has long felt ignored. 

“It’s wonderful to have the bill on here,” MacRae said. “But I don’t think it’s done.”

By Zak Vescera, Local Journalism Initiative Reporter

Original Published on Mar 24, 2023 at 01:21

This item reprinted with permission from   The Tyee   Vancouver, British Columbia
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