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Editorial: Furstenau gets ball rolling on curbing NDAs

It is possible to limit the use of these gag orders through legislation
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B.C. Green Party leader Sonia Furstenau has taken aim at NDAs with new legislation. (News Bulletin file photo)

In February we published an editorial urging the provincial and federal government to take action to reduce the use of non-disclosure agreements that too often silence victims in civil cases.

These NDAs have become so ubiquitous, they’re an almost standard part of settlements — usually demanded by the defendant as a way to hide details about the case and its outcome.

NDAs require participants to remain silent or face penalties. So even if a plaintiff is successful in extracting an apology, admission of guilt, and/or financial compensation, none of that ever becomes public.

In January the Canadian Bar Association passed a resolution at their annual general meeting to discourage the pervasive use of NDAs in this country.

In March, Green Party leader and Cowichan Valley MLA Sonia Furstenau tabled legislation to try to stop their use in cases of harassment, discrimination and other abuses. She specifically referenced their use to hush up scandals involving Hockey Canada that have nevertheless recently come to light.

“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,” said the Canadian Bar Association in a statement.

Originally, NDAs were designed to protect trade secrets and intellectual property in lawsuits. But their use has expanded far beyond that to silence everyone from sexual assault survivors to people who have been injured by a medical professional’s incompetence. Having problems with an employer that are serious enough to warrant a lawsuit? Others, perhaps many others, may have been in the same boat in the past, but cannot share their experience with you due to NDAs.

It is possible to limit the use of these gag orders through legislation. In Canada, Prince Edward Island has done so. Similar legislation is under consideration in Nova Scotia and Manitoba. And now, thanks to Furstenau’s efforts, in British Columbia.

Spurring this movement on is the Can’t Buy My Silence campaign founded by Julie Macfarlane, a law professor at the University of Windsor, and Zelda Perkins, who broke an NDA she had signed with sex offender Harvey Weinstein.

NDAs not only allow for the same wrong to occur over and over again unchecked, but can also cause serious harm to victims who may be forbidden from talking about their experiences, even with family, friends and therapists.

We hope this can move smoothly through the B.C. legislature. The lawyers are on board. It’s time for the politicians to join them.