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Editorial: NDAs: time to break the silence

NDAs have meant that even when these victims have “won”, they’ve lost
The use of non disclosure agreements have silenced many victims. (Metro Creative Services photo)

It’s to the great shame of our B.C. and federal governments that it is not them that are taking action to give victims back their voices and to pull back the curtain that has hidden abusers for far too long. At least, not yet.

It is to the credit of the Canadian legal profession that this week the Canadian Bar Association passed a resolution at their annual general meeting to discourage the pervasive scourge of non-disclosure agreements commonly used when settling civil cases. These muzzle those who have sought some kind of justice for abuses perpetrated against them. NDAs have meant that even when these victims have “won”, they’ve lost — lost control of their story, their voice and their choices.

RELATED: Canadian Bar Association votes to end abuse of NDAs

We cannot help but think of the case of Andrea Constand and her civil suit against Bill Cosby. There are many other examples of similar circumstances right here in Canada.

Think Hockey Canada.

The Bar Association’s resolution comes in part from a campaign (Can’t Buy My Silence) founded by Julie Macfarlane, a law professor at the University of Windsor, and Zelda Perkins. It’s personal for Perkins, who signed an NDA with Harvey Weinstein, who is now in prison for sex offences, an NDA that she later broke.

It’s also cases where corporations can hide bad and even harmful behaviour in a locked filing cabinet in the legal department, so to speak.

There are cases where the use of an NDA is a legitimate protection. But they are now so de rigueur that it’s almost assumed in settlements that a defendant will be able to basically make the whole thing go away with a monetary award, thanks to the accompanying gag order. There are those, including individuals, businesses and corporations for whom that is the cost of doing business and the secrecy is well worth it.

Unfortunately this can allow injustice to continue and even proliferate.

While most probably know that NDAs prevent someone from speaking publicly about a particular subject, they can also prevent people from even discussing the matter with family and friends. And if they see it happening again to someone else? Too bad, shut up.

The Bar Association will now advocate for the important step of legislation, as it’s certain that not all lawyers (or their clients) will be on board without it. Some provinces have already taken steps (Prince Edward Island, Nova Scotia and Manitoba). This needs to go Canada-wide.