Workplace Sexual Harassment

Non Disclosure Legislation

 

Prince Edward Island has become the first Canadian jurisdiction to pass legislation dealing with non-disclosure agreements relating to settlement of sexual harassment cases or discrimination claims. It came into force on May 17, 2022. 1 The statute prevents such a term in a settlement agreement, unless:

A party responsible or person who committed or who is alleged to have committed harassment or discrimination may only enter into a non-disclosure agreement with a relevant person in accordance with this section if such an agreement is the expressed wish and preference of the relevant person concerned.

Even should this be the case, the agreement must allow the victim to waive the clause at their initiative at any time after the agreement has been completed. The agreement also must be for fixed time period. The terms cannot be used to prevent a lawful investigation of the allegations.

Also the agreement, or a past agreement entered into before the enactment of this new law, cannot forbid the victim from discussing the events in question with a set list of professionals such as:

  1. A lawyer;
  2. A physician;
  3. A psychologist;
  4. A registered nurse;
  5. A counselor who provided victim services;
  6. a community elder or spiritual counselor;
  7. The Ombudsperson
  8. A potential new employer

In May of 2023, a similar bill was introduced in the federal Senate, known as “Can’t Buy Silence Act”. It is proposed to apply to the federal public service and any organization which receives federal funding, including Crown corporations and organizations such as Hockey Canada.

Nova Scotia, Manitoba, and most recently, Ontario have introduced bills to regulate the use of non-disclosure agreements.  While Nova Scotia 2 and Manitoba 3 have introduced broad legislation to regulate NDAs in the context of sexual harassment and discrimination similar to what has become law in PEI, Ontario’s initiative is not as broad and deals only with sexual abuse in the post-secondary education sphere. The Ontario law received royal assent in December of 2022. 4

The new Ontario law forbids the school from entering into an agreement which bans the school, or a related person, from disclosing an allegation or complaint of sexual misconduct toward a student.

focuses on settlement agreements or other contracts, which post-secondary institutions make or have made with employees who have been found to have committed acts of sexual misconduct.

This statute applies to findings of sexual abuse made by a "court, arbitrator, or other adjudicator". "Adjudicator" is not a defined term. The issue may arise as to whether this term may apply to internal or external investigators. Often settlements occur without the presence of a court or arbitrator ruling, which raises greater significance for this term of "adjudicator".

The school itself may define "sexual abuse" in its own mandated policies. It arguably may be allowed to define "adjudicator".

Initially, the Ontario law did not not allow the aggrieved party to have an NDA in place at their initiative. That provision was revised to allow this, provided that the student has had the opportunity for independent legal advice, there have been no undue attempts to influence this decision, the agreement allows a later waiver in the future, and the contract is for a defined time period.

All schools must have in place, by July 1, 2023, a sexual misconduct policy which, at the very least, includes the school's rules with regard to sexual behaviour that involves employees and students and must recite examples of disciplinary steps which may be imposed, if violated.

The Bill defines just cause for termination, given a finding of sexual misconduct:

2) If an employee of an institution commits an act of sexual misconduct toward a student of an institution, the institution may discharge or discipline the employee for that act, and,
(a) the discharge or disciplinary measure is deemed to be for just cause for all purposes;
(b) the employee is not entitled to notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure; and
(c) despite subsection 48 (17) of the Labour Relations Act, 1995 and subsection 14 (17) of the Colleges Collective Bargaining Act, 2008, and despite any provision of a collective agreement or employment contract specifying a penalty for the infraction, no arbitrator, arbitration board or other adjudicator shall substitute any other penalty for the discharge or disciplinary measure imposed by the institution.

The Bill continues to state that such a person is not to be rehired and if so, the above section allows for immediate termination without compensation.

The law is certainly limited in its scope. That said, it may well be the harbinger for broader legislation which has been promised to be forthcoming.

Often such a term of non-disclosure or confidentiality is included in the minutes of settlement. A breach of such a term has been viewed very strictly, as reviewed here.