Julia welcomes Jo-Anne Stark, Jennifer Khor, Ronald Pink KC, and Prof. Julie MacFarlane to discuss ending the misuse of NDAs by the legal profession in Canada.
In this episode of the Every Lawyer we discuss restricting the use of NDAs in Canada’s legal system. Joining Julia for this timely discussion are:
Jo-Anne Stark is a lawyer and Certified Legal Coach and operates Stark Solutions Legal Coaching and Consulting which offers virtual help to self-represented litigants and training to lawyers who want to offer legal coaching to their own clients; she is the volunteer President of Legal Coaches Association, a non-profit she founded in 2019 to increase access to justice, a role which she has kindly agreed to talk about with us in another upcoming A2J episode of the Every Lawyer; she is also a former Director of Advocacy at CBABC.
Julie MacFarlane is a Distinguished University Professor (Emerita) at the University of Windsor. Julie has also held numerous visiting appointments at universities all over the world. Her books include The New Lawyer : How Clients are Transforming the Practice of Law 2nd edition, UBC Press 2017; Islamic Divorce in North America : Choosing a Shari’a Path in a Secular Society (OUP 2012).; and Going Public: a Survivor’s Journey from Grief to Action Between the Lines Press, 2020). Julie has received many awards for her work, including the International Academy of Mediators Award of Excellence (2005), the David Mundell Medal for Legal Writing (2016), and one of Canada’s 25 Most Influential Lawyers (2017). In 2020 she was named to the Order of Canada. She is co-founder with Zelda Perkins of Can’t Buy My Silence, which campaigns for a change in the law on the misuse of Non-Disclosure Agreements. Julie is also an authority on self-represented litigants and hosts a podcast on this topic which we highly recommend, Jumping Off the Ivory Tower.
Jumping Off the Ivory Tower with Prof Julie Mac – NSRLP (representingyourselfcanada.com)
Ronald A. Pink, K.C. practices in the fields of governance for organizations both public and private, pensions and benefits law, collective bargaining for public and private clients, municipal law, and labour and employment law. An advocate for labour relations, employment standards, and pensions and benefits, Ron has a long history with the Canadian Bar Association. He has served as President of the Nova Scotia Branch, Chair of the National Continuing Legal Education Committee, the first Chair of the International Development Committee and as acting Director of the Canadian Bar Insurance Association.
Jennifer Khor is Supervising Lawyer and Project Manager for the Community Legal Assistance Society’s SHARP Workplaces Legal Clinic. Jennifer provides legal advice and delivers education and training on workplace sexual harassment. She is also a member of the Uniform Law Conference of Canada’s working group on NDA’s.
The Misuse of NDA's
[Start of recorded material 00:00:00]
Julia: Whereas the widespread and systemic use of nondisclosure agreements, NDAs, has been found to protect an employer’s reputation at the expense of victims, or whistle-blowers, who may be unable to report or discuss their concerns with family, friends, coworkers or therapists. Whereas NDAs are routinely used to cover up abuse in schools, youth clubs, universities, organizations and religious institutions while revealing the details of the settlement may result in reputational risk or criminal charges against a perpetrator. Be it result that the Canadian Bar Association promote the fair and proper use of NDAs as a method to protect intellectual property and this create their use to silent victims and whistle-blowers who report experiences of abuse, discrimination and harassment in Canada. And advocate and lobby the federal, provincial and territorial governments to enact changes to legislation and policies to answer NDAs are not misused for the purpose of silencing victims and whistle-blowers.
Hi, I’m Julia Tetrault Provencher and I voted in favour of this resolution. Today on the Every Lawyer we discuss the misuse of nondisclosure agreements by Canada’s legal professionals. Joining me for this discussion are Jo-Anne Stark who put forward the resolution, Ronald A. Pink K.C, who thinks we should, quote, “Just get rid of them, full stop,” end quote. Jennifer Khor, from the CBA A to J subcommittee and professor Julie Macfarlane who founded, Can’t Buy My Silence together with Zelda Perkins who achieved [unintelligible 00:01:54] for having signed and then broken an NDA with the now convicted sex offender, Harvey Weinstein. The conversation got heated quickly as these four professionals gathered to discuss a topic they are most passionate about, the misuse of NDAs. I really only had to ask one introductory, uncontroversial question, “Where are NDAs commonly used in Canada?”
Julie: We’ve seen a process in which NDAs have become a default in almost all settlement agreements now. They are usually attached as part of a release waiver in a civil settlement agreement and many lawyers will tell you that up to 95% of the agreements that they make now include a nondisclosure agreement. We have been focusing in the work of the campaign on the use in the employment context, principally to cover up various forms of misconduct including sexual harassment, misconduct and discrimination and other kinds of harassment. But in fact we know that they are also very common in consumer disputes, they’re also very common in professional services disputes.
So for example why didn’t we know that baby formula was tainted and damaging the health of babies for so long, well because it was covered up in an NDA. Similarly we have learned recently that the original research on the link between asbestos and cancer was also shielded in an NDA for 10 years before that became public knowledge. So we’re talking about their use habitually and as a matter of default and in fact there was a case just fought in Ontario on the basis that you don’t even have to show the clause any longer to a client because it’s such a standard template that they should just assume it’s going to be there anyway. Now the judge disagreed, but I think that gives you some idea of the prevalence here.
Julia: Julie Macfarlane is a distinguished university professor [unintelligible 00:03:53] at the University of Windsor. Julie has also held numerous visiting appointments at universities all over the world. Julie has received multiple awards for her work, including the International Academy of Mediators Award of Excellence in 2005. The David Mundell medal for legal writing in 2016 and one of Canada’s 25 most influential lawyers in 2017. In 2020, she was named the Order of Canada. Julie is co-founder with Zelda Perkins of Can’t Buy my Silence which campaigns for a change in the law under misuse of nondisclosure agreements.
Ronald: They’re buying your silence; they’re buying your silence. The defendant has a continuing hold on you that ensures you remain silent, failing in which your settlement may be in jeopardy. So that’s the whole problem here, that’s the whole problem. My case is always employers continue to have a grasp on departed employees who they may have done badly by and they continue to hold ransom over them as a result of this NDA in my experience. When it’s a typical NDA you don’t disclose that they paid you $100,000 to go away or whatever, I don’t really have a problem with those. Those are commercial transactions, right, they don’t want the rest of the employees to understand.
But when it’s sexual harassment issues or some other form of harassment issue, when they’re buying your silence, the price remains forever. You’re wedded to them, you’re joined at the head with the employer, you never, ever separate. Because you have to watch what you say to them because the person who’s detached to your head is always listening to everything you say, that you don’t screw up and offend them and breach the NDA, that’s what’s going on.
Julia: Ronald A. Pink, K.C practices in the fields of governance for organizations, both public and private, pensions and benefit’s law, collective bargaining for public and private clients, municipal law and labour and employment law. An advocate for labour relations, employment standards and pensions and benefits, Ron has a long history with the Canadian Bar Association. He has served as president of the Nova Scotia branch, chair of the National Continuing Legal Education Committee, the first chair of the International Development Committee and as acting director of the Canadian Bar Insurance Association.
Julie: And could I just add to Ron’s point that this is often characterized as a great deal for complainants because they get so much money because of their silence. That is empirically very difficult to verify because we know that sexual harassment settlements for example are very small and the figures that we have for research shows that most of them are actually $10,000 or less. So the idea that there’s somehow great riches to be made by people by selling their silence is also a misconception.
Ronald: Yeah, well when you think about it, Julie the settlements seldom exceed the general maximum in the Human Rights Legislation, which is 30 or $40,000 bucks, right, which are deplorably low. I’ve often wanted to challenge this as a charter violation that you're somehow restricting my rights for my damages because of my sexual discrimination against me. How’s that fair? But I won’t go there with this topic, but I just think that you’re quite right, women particularly, in these sort of situations just want this all to be behind them. And for $10,00 or whatever, they’ll just take it and go but the problem is they never leave. It’s like Hotel California, you can neve check out with an NDA, never, ever, ever.
Jennifer: And I think it’s also important to note that we’re seeing them also in cases of racial discrimination.
Ronald: I’m sure that’s true.
Jennifer: And that’s also on the increase and also in general workplace harassment bullying. And of course they’re also being used often where people are looking to – like in situations of whistle-blowing where people are trying to report a wrong that’s happening in a workplace or a public interest wrong like environmental issues.
Julia: Jennifer Khor is supervising lawyer and project manager for the Community Legal and Assistance Society’s SHARP, workplaces legal clinic. Jennifer provides legal advice and delivers education and training on workplace sexual harassment. She is also a member of the Uniform Law Conference of Canada’s working group on NDAs.
Jo-Anne: I’ve also actually seen it too where not only you’re told you can’t speak about what happened at your employment, but also that if you are asked you have to say that you were treated fairly. Even if you were the subject of harassment and bullying, that if asked you must say that the organization treated you fairly even if you got nothing or even a couple of thousand dollars.
Julia: Jo-Anne Stark is a lawyer and certified legal coach and operates Stark Solutions Legal Coaching and Consulting, which offers virtual help to self-represented litigants and training to lawyers who want to offer legal coaching to their own clients. She is the volunteer president of Legal Coach’s Association, a non-profit she founded in 2019 to increase access to justice. She is also a former director of advocacy at CBA BC.
Julie: And the other typical close we see a lot is the cooperation clause which says that nobody who signs a NDA can cooperate or speak in any way to anybody bringing a similar complaint in the workplace. In other words where the perpetrator pops up again, because there’s been an NDA so they’re back again, you have also signed away apparently your right to cooperate or collaborate with anybody else on a complaint.
Julia: Have any of you signed an NDA in your life?
Julie: If we have we’re not allowed to tell you because that’s what a NDA says. That’s actually true, people who sign NDAs are told that they can’t say that they’ve signed a NDA.
Julia: Are you serious?
Julie: And on our survey, which is collecting data on prevalence, we have three possible answers to the question that you’ve just asked, Julia. And those answers are, “Yes, no and can’t say for legal reasons.” And yes and can’t say for legal reasons are both yeses. We’ve been highlighting the voices of people who’ve been silenced but we have kept their identities anonymous. And when Jo-Anne and Jennifer and Ron talk about the cases that they’ve been involved in, they’re not disclosing anyone’s identity and we’ve collected those stories on the, You Can’t Buy my Silence website but they’re all very carefully anonymized.
Jennifer: And I think of course this issue has come to the forefront now because people have chosen to break their NDAs. So people like Zelda Perkins who is the co-founder of Can’t Buy my Silence with Julie, she came forth to break her NDA with Harvey Weinstein. And that’s quite well known and then other people have started to speak out. So it’s brought this movement that came from the me-too movement where people are starting to talk about it and sharing their experiences.
Julie: It seemed to me from all the work I’ve done on this that most of these NDAs aren't enforceable anyway. And if you look at the caseload that’s developing in the US and beginning to develop in the UK, although we haven't seen that in Canada yet because most people are too frightened to challenge their NDAs. We’ve just explained that even saying you have one is technically a breach. But I think that most lawyers would agree that it’s very questionable whether these clauses are even enforceable, they’re very broad, they’re very vague, they often rest on a serious power imbalance. And we know from the stories that we collect that people rarely understand what they’re signing and often feel a sense of coercion. So you’ve got about six or seven different reasons there why they might not be enforceable. Yet lawyers continue to write them into contracts and to press them on people and I think that raises quite an interesting issue in terms of ethical practice.
Ronald: Well, the issue though many are signed without council, many are signed with council. Even those signed with council be done with council who haven't really thought about it because [unintelligible 00:12:59] But most importantly no one can afford to litigate or to challenge the NDA, that’s the big problem. I mean who’s got the 20, 30, 40, $50,000 to defend it or to make an application to get rid of it sort of thing, nobody does. And it’s largely, I don’t want to generalize, but it it’s largely women who they just can’t, and for good reason, they just can’t get over it and they don’t want to live it again. So they’re going to litigate it, you’re going to live the whole thing all over again and then they just get re-traumatized.
You don’t win this stuff, it all stems from the fact of the harasser himself, who’s the big prick in this whole thing, right, that’s the problem. And they’re the ones who should be punished, why is the women punished all the time, life-long. I understand I’m just old and cranky but those women have just been so hurt and done badly by. They get abused by the man and then they get continued to be abused because they can’t speak about it. I have clients who wouldn’t even speak to their family about it, what are they going to do? They’re scared to death and they don’t even mention it. Look, you guys, there just should be a law against it.
Jennifer: Well it’s great to hear you talk about it that way, Ron. You’ve been practicing a long time so I’m just wondering when you became so strong against the NDAs?
Ronald: Does it sound like I’ve been practicing too long, Jennifer?
Jennifer: No.
Ron: No, I’ve had a number of cases over the years and sometimes the old cases come back. And it’s happened recently where the women in the first case, now 10, 11, 12 years ago, couldn’t speak in a new case about what happened to anew person who was alleged to have harassed somebody else. And I was representing all the harassees and the women who were first harassed are just devastated and they’re very sophisticated, smart, brilliant women, just so smart and very successful. But they have this hidden secret that they can’t talk about and when you raise it with them it’s just a flood of emotion. And they never get over it, they never get over it because it’s always lying in the back of their mind. And so they can’t write about it, they can’t talk about it, they can’t do conferences on it, they just cant. It’s a penalty of silence for something that they didn’t do, they pay the price.
Julia: And do they have any psychological support?
Ronald: Yes, they're all in treatment, still, 10 years later. When I raised it the last time, they all had to go back to see their counsellors again all because it got raised again. It’s like a death sentence on these women, they never get over it.
Julie: See, I think one of the things that I’ve observed and I don’t know if you’ve seen this too, Joanne and Jennifer, is that for a long-time lawyers, and actually I would include in this trade union representatives, have said to people, “Everybody signs this, just sign it, don’t worry about it.” And I’ve had many conversations in the past six months in particular with both lawyers and union reps who have come up to me at the end of some kind of presentation or whatever or who have written to me and in the flesh I’ve seen people with tears in their eyes saying, “I had no idea until you talked about this just what the impact was of these clauses. I thought people would probably just take them with a grain of salt, there’s no video camera following you around.”
But that isn't how people feel about this. The people who sign these agreements, and I can’t emphasize this strongly enough, are really law-abiding people who believe that they have to keep the promise that they made in it. And so they take those promises far more seriously perhaps than the people who were professionals and experts in the area thought that they really needed to. And I think it’s really important to recognize that this is causing enormous emotional damage.
And I want to also just underscore something that Jennifer said which is a lot of Ron’s practice has been around these issues of sexual harassment, we see in very large number of racial discrimination cases being ended in NDAs as well. That is a very, very common area for which we’re seeing NDAs being used. And I don’t think that’s what Canadians want to be, hiding discrimination, hiding racism in the workplace.
Jo-Anne: I think that one of the things too you see is that by doing this it not only is harming the victims and retraumatizing them over and over again technically even for a lifetime for them, but it’s allowing the institution or the organizations to protect, in that cone of silence, the perpetrator of these things. So as Ron brings up, they can continue in the background to continue to harass or bully or assault people, it goes unchecked and it can go unchecked, in the case of Harvey Weinstein for decades.
And so that’s not something we as Canadians believe in, we don’t want to have toxic workplaces. We don’t want our children exposed in sporting associations to toxic environments, that’s the last thing we want, it’s the last thing we stand for. And so as lawyers, we’re the one that are putting the pieces of paper in front of these people, we’re the ones drafting these documents. And it’s up to us to really sit down and talk to our clients and understand what these particular NDAs really mean in those situations. Otherwise you could see things go unchecked for a very long time and even more people harmed as a result of that.
Ronald: But Joanne, on the other side of that equation is there’s another lawyer representing the perpetrator who insists that if you want this money you have to sign the NDA.
Joanne: Yeah.
Ronald: And so the squeeze comes upon your client, the plaintive, in the matter who gets this little bit of money, or a lot of money, it matters not, but they have to sign the NDA. So they’re the ones who pay the price. There’s no winners in this. It’s so simple, the employer is just perpetuating the abuse to women. One person may have gone off but that SOB who’s still there will do it to somebody else.
Joanne: I think there’s a real opportunity there though, Ron. For an organization, if you want to improve your reputation publicly is if you step forward and say, “We have policies that not only that we’ve created, but that we’ve actually implemented that say we are going to investigate every complaint, we’re going to protect victims, we’re going to ensure that our workplace is not toxic.” It’s a way to spin it but again we as lawyers think, no we want to protect our client, we want to protect the organization we represent. For example I’ve been general legal council so you want to protect your organization but the one way you can actually spin it is say, “We found a problem here and we dealt with it and we corrected it.” And in the eyes of the public sometime that can be a win.
Ronald: Only if you get rid of the perpetrator.
Joanne: Exactly, exactly, 100%.
Julie: And the first time the complaint comes in. I mean I’m convinced that the reason a lot of people, employers, want NDAs is because they’ve been hearing about this person for years and they’ve never done anything about it.
Ronald: Yeah, they're afraid.
Julie: Right, right but that means that they need to act right away. But I think Jo=Anne is absolutely right, that there is a win here and we are starting to see organizations commit to not doing this. And the other place just to make sure that we’ve drawn the conversation out to include this, the other place that we know that these are being used isn't just when there’s a complaint coming forward. There are also many, many, many examples now of what I call pre-emptive NDAs, which are NDAs that are signed when somebody is hired originally. Now fair enough, if you’re going to be in contact with confidential information, if there’s sensitive information within the organization, but these contracts of employment now say you cannot speak about anything that happens in this workplace, not just commercially sensitive material, not just intellectual property but anything that happens in this workplace. So you’ve already been told you can’t complain about any racism or sexism or sexual harassment before you’ve even entered the workplace, it’s pre-emptive.
Julia: This is legal because you just mentioned this issue, I feel like there are so many things that cannot be legal with that. But it has passed and there’s nothing that has been done in Canada to go against them?
Julie: Well, not yet but we’re trying to make sure that that happens. I mean I think you’ve just seen a law passed in the US actually to stop point of hiring sexual harassment NDAs. But we need to be very clear about this also in relation to workplace investigations where many, many people now have to sign indefinite NDAs, which makes no sense. You don’t even know what the result of the investigation is gong to be.
Julia: You’re talking about a law in the US and you’re talking about legislation because I think, Ronald you said it should be illegal. So are we there, is it something that could happen? I know that the CBA passed a resolution advocating to change legislation and do you think this is a law that maybe could limit the use of NDAs or making it illegal for sexual harassment, so you can talk a bit about that? What’s going on in the legislation in Canada regarding NDAs?
Julie: Shall I do the rapid update [unintelligible 00:22:51] [laughs]?
Julia: Yes, please [laughs].
Ronald: The [unintelligible 00:22:53] is where’s Julie been in the last six months?
Julie: Well, there’s legislation being tabled now in British Columbia, Nova Scotia and Manitoba and we are on the verge of seeing it in Ontario, it’s just being finalized. So those are all bills that follow reasonably closely the model of Prince Edward Island, which was the very first place to enact this legislation and also drew on models from other places in the world where we’ve been working. So we do have the possibility of legislation, we’ve also now got a federal bill that was tabled just 10 days ago. Which would take the threat of NDA away from federal employees and civil servants because we know the federal government uses them regularly and they are used by the federal government in cases of sexual misconduct and racial discrimination, I can verify that. And also federally funded organizations which would include organizations like Hockey Canada who have been using federally funded money as we all know now to cover up settlements about rape and sexual assault.
Jo-Anne: And I think I can also add that the Uniform Law Conference of Canada established a working group to be looking at nondisclosure agreements and considering what policy and developing interact legislation for use. So really thinking about what the scope of such legislation should be because as we’ve discussed a lot of the legislation has originally focused in other countries on sexual harassment or sexual misconduct. But as you unpack it, you see that they’re being used in all sorts of other circumstances and where there is a power imbalance and people are being unfairly silenced without really understanding what they’re agreeing to.
Jennifer: Yeah, I think what you’re seeing now since the CBA did pass the resolution, which was just not that long ago, it was just in February, you're seeing a lot of lawyers now coming to the forefront, like Ron, with stories of cases that they’ve worked on, situations where they're suddenly realizing this is not right. And so what we’re seeing is more and more lawyers kind of jumping on the bandwagon and helping people like Julie with Can’t Buy my Silence in pockets throughout Canada. And that is just creating this basically a wave of change and it’s a positive change that we need to catch up in the way we view ourselves as Canadians and the type of people we want to be and the types of workplaces we want to work in.
And I think that since that resolution came through and basically said, “Hey, lawyers are onboard with this, how do we get organizations onboard, how do we get governments on board,” we’ve seen all of these bills suddenly being popped up. And consultations for new legislation and bills being introduced both provincially and federally, which is really exciting because otherwise if you don’t have that momentum it’s very difficult to make the legislative changes that need to happen.
Ronald: But how many of those are government bills?
Jennifer: Well, not a lot of them, you’re right.
Ronald: That’s the problem.
Jennifer: But again what happens is that because the governments are also using the NDAs with their own employees it becomes a challenge, right? But what happen is that you need to get public pressure and that’s part of the whole advocacy process. It’s not just we’ve got the lawyers now and now we need the public and we need people to say that this is not OK. And it’s a bit tricky in this situation because the people who don’t like it are the ones who are being silenced, right, by NDAs. So you’ve got that added dynamic which makes it even tricker. But I think we’re moving in one direction, I can’t see it moving backwards so I think it’s possible and I think that it’s progressive so I’m hopeful.
Julie: Yeah, organizing a revolution against secret settlements is a little bit of a tough thing to do but I think that we are getting there, absolutely I agree with Joanne. And I take your point, Ron that these are opposition, these are private member’s bills which actually explains perhaps the strategy the way they’ve been drafted to make it kind of almost educative for people to see the important conditions that need to be placed. Personally, I’d like to see NDAs brought back to their original historic usages, which they were first developed in the 1980s out of the tech boom in California, in Silicon Valley and they are there to try to go on better than a [restraintive 00:27:21] trade because they are indefinite.
But they were definitely trying to protect the development of commercially sensitive information, whether or not it was actually copywrite or patented at that point, but it was a way of trying to protect that new information. And I think that what we should do is bring them back to that original use and think about the other ways in which confidentially might be important in a workplace, if you're looking at client files or you’re in a sport’s team and you want to keep your tactics secret. I mean we can all understand that there are pieces of confidentiality but they shouldn’t extend into everything. Everything is now a trade secret, especially misconduct.
Ronald: I couldn’t agree more. If the matters are for matters of economic viability of the party, which you acknowledge when you went in, you could sign the nondisclosure on the day in the door, that’s fine. But when you come back to the legislation, can someone please tell me why we can’t move this faster?
Jennifer: [laughs] Good question.
Ronald: No, seriously. I mean it’s gone on long enough and we can beat our heads against the wall, and we will, but to what end? I mean is there a government in the country, like Mr. Prime Minister who is the best person at protecting women’s rights or whatever, why don’t the feds do it? What have they got to hide; they have nothing to hide. If they did it, it would be a matter of consequence. And they will set the standard for the country, right? But all this loose talk by various other provinces, well we should look at this and they study, they’re not studying [unintelligible 00:29:09] they don’t study bugger all. It’s just a pass off of the issue to somebody else, right? It’s not happening, it’s not happening and they hope we all to away, that’s what they want.
Julie: Yeah, I mean the repeated calls to study are pretty irritating, Ron I have to admit, Ron since virtually all those studies take all of their data and their information from our website. But I’m actually still optimistic. I think for example in British Columbia that there is a fair chance – I mean governments like to seem to be doing it themselves. And I think in both British Columbia and Manitoba, there is a chance that the government will take advice because they have been doing some studying in the Manitoba Law Reform Commission and in the policy lawyers in BC Justice have been looking at the issue. And in fact one sits with Jennifer on the uniform law committee. And I think that they might come back in the fall with their own build that will be maybe slightly different approach to the one that is there at the moment but it will still fit the purpose. And so that’s what I’m hoping for. We’ve made it I think bad for brand to use NDAs and good for brand for governments to say that they oppose them in these circumstances, so hopefully that will bear some fruit but we’ll keep going until it does.
Jennifer: In answer to Ron’s comment too, “How do we make this faster,” I mean one way is by having the regulator of lawyers say that this is unethical practice. And we’re seeing some of that happening now in the UK as I understand it. And if we say to the regulators, and quite often the regulators are the gatekeepers, and if we say, “You cannot use NDAs to cover up wrongdoing and misconduct in organizations” then that would make it happen a lot faster. You’re right, we wouldn’t have to wait on all these elected officials who are trying to put other agendas forward that are more politically – that are going to get them elected, right? Instead you just go right to the root of it, which is the lawyers who are drafting these agreements and say, “Look, this is unethical if you’re using it in this manner, but if you’re using it to protect trade secrets or commercial secrets, not a problem.”
Jo-Anne: I think that’s a really good point and I know that there’re several US ethic’s committees, state ethic committees, that have looked at NDAs and said that they are not ethical in the use in these sorts of situations of harassment discrimination. Where they might be particularly preventing people from not only being in unequal bargaining power but also preventing them from accessing council because it prevents people from knowing what council are skilled and experienced in dealing with these types of matters, so that’s an interesting matter as well.
Julie: Yeah, I’d also like to see Canadian lawyers remember that probably from their first couple of months of law school, they learned a very important principle which many seem to have forgotten and that is that when you make a negotiated agreement you don’t both have to agree to the same things. It’s like pineapple on your pizza, if you like pineapple on your pizza you can have it on your side, I don’t need it on my side, right? So what’s wrong with a one-sided confidentiality clause that protects the privacy of the victim? Because what these victims are being told, these complainants are being told, is you can only have privacy, which they want. And as you know, you guys work with people all the time, and I know from my work with survivors, they want their own privacy and they’re told the only way they can get it is to do the same thing for the other side, to reciprocate, that’s what a NDA is. But of course that’s ridiculous. Plaintiff lawyers should be going in there and asking for a one-sided confidentiality agreement that protects a victim, but it doesn’t have to be tied to protecting the perpetrator.
Jennifer: I think that’s a good point, Julie and I also think way back in my early days of practice, I’m hopefully not that old [laughs] but you used to enter settlements for these type of complaints. And you didn’t have NDAs, you had, as Julie is talking about, you had a basic confidentiality clause and a basic confidentiality clause about the settlement amount. And people didn’t feel the need to talk more about it because they found that the agreement and the settlement brought a resolution for them versus where there is an NDA, which as Ron’s talked about, we’ve all talked about, causes the person to continue to worry about it and it hangs over them. And they’re worried about breaching it in the future, if they haven't complied with the conditions, if there’s an exclusion perhaps for counselling. But now they want to go to some peer support group, are they allowed to talk about the trauma that’s affected them in their current situation that links back to this pervious NDA situation? It’s really difficult for people.
Ronald: Has anybody ever seen an NDA which has been breached, litigated?
Julie: Yes.
Ronald: You have, Julie?
Julie: Yeah, I have. There’s actually one going on at the moment that I wanted to talk to you about, Ron.
Roland: In Canada?
Julie: Yeah.
Ron: I don’t know about this.
Julie: Yeah and there have also been several cases attempted in the past 10 years or so where people have simply asked to be released and they’ve failed?
Ronald: I’ve had those but I’ve never had anybody litigate one.
Julie: Yeah, no there is one currently. And of course the very well-known case in Canada involving Jan Wong, who was a journalist [unintelligible 00:34:58] for a long time. When she left the Globe & Mail after not being accommodated for her mental health issues at the time, they made Jan sign an NDA. And when she breached it by writing about her experiences they brought her back to the arbitrator and she was forced to repay all her settlement money, yeah.
Ronald: I have heard of that case, I have heard of that case, yeah I’m familiar with that.
Julie: 10 years ago.
Ronald: That’s in the more commercial side of the equation, right, not in the sexual harassment side of the equation.
Julie: Well, but it was about failing to accommodate, that’s what was damaging. It wasn’t anything that she was spilling in terms of Globe & Mail secrets, it was about their failure to accommodate her. And that’s a very common basis for an NDA, what I would call disability discrimination, we see them all the time in that area.
Ronald: Well, that’s fair enough, that’s fair enough. I read that case many years ago and I’ve never looked at it that way. But on the sexual harassment, have you ever seen any cases there?
Julie: No I haven't and I think that the reason again so much of this is, if you stop and think about it for five seconds, is self evident. It would be completely contrary to the goals of anybody who wanted to keep the misconduct covered up to bring an enforcement action because then it would all be in the public domain again. I’m assuming that the Globe & Mail thought that that was worthwhile and that they could whether the storm. But if somebody wants to sue someone for enforcing an NDA on sexual harassment then they’re effectively outing themselves as a perpetrator or as an organization that kept that perpetrator safe. So I think that’s why we don’t see it. I’ve had many conversations with CEOs over the last year or so about why they use NDAs and would they ever enforce them. And I get reactions like, “Well, of course we would never enforce them.” And I ask, “Well, why not?” “Well, because we’d look like such bad guys, I mean why would we want to do that?” So I think basically this is all a fraud.
Ronald: Because they are bad guys.
Julie: [laughs] But it’s an interesting example and I’m sure this isn't the intention of most of the lawyers out there, but effectively they’re perpetrating a fraud on the public. Because they’re telling them A, these are enforceable and they may not be and B, they’re saying this is absolutely the only way that you can have access to a settlement, which is of course not true because that party also doesn’t want to go to court. So I see many people now just digging their heels and saying, “I’m not signing, I’m not signing, I’m not signing,” and they get a settlement without a NDA in the end because the people who want them to go to sign don’t want to go to court anyway, or tribunal.
Ronald: Yeah and I guess it comes back to how much are we talking about at stake here? I mean are we getting the same amount, a lesser amount for not signing the NDA, those sorts of things? But you know what, it’s the victim who always pays the price.
Julie: Yeah.
Julia: I think we haven't touched this yet but I think it’s an important thing also that I’d like to cover, is prevention. Because you said, Julie you said you talked to people, you tried to tell us lawyers, maybe you talked about the fact that some lawyers, it’s just weird that some lawyers push for that because we’re not even sure it’s legal. We know it’s bad, so how can we prevent the NDAs to be signed in the first place if we don’t have legislation for instance in some provinces? How can we work on the prevention thing?
Julie: Well, just for the record my view is that it’s really, really helpful to have regulators recognizing the responsibility here. But I do actually think that until we have legislation it won’t really be done because I haven't seen legal regulators be terribly effective in terms of providing complaints processes to ordinary members of the public historically. I think that we need more and more lawyers to stand up and say, like Ron has, and Jennifer and Joanne have done, I didn’t realize how bad these were. I had been doing this as a matter of habit and practice. I don’t think it should be such a difficult thing to admit that quite a lot of what we do in the legal profession is a matter of routine practice, not everything can be the latest Supreme Court of Canada argument. So acknowledge that as one union president put it to me recently, “We used to use NDAs to get the job done, we just thought it was getting the job done. Now we know differently, we must act differently.” And that’s what I really hope lawyers will begin to do. And this is what I think Joanne was talking about earlier in reference to the resolution.
Jennifer: Also we’re seeing a trend towards really lawyers acknowledging and learning about taking a trauma informed approach in practice. And in doing that people – we should be reflecting on the impacts of NDA and what that means for someone. And if you considered it from that perspective, hopefully it will encourage the profession to limit the use of them.
Jo-Anne: It would be nice to see law schools step up as well because every single lawyer out there has to take a basic contract’s class in their first year. And it’d be nice to see the law schools actually educating on the impact of some of these clauses as opposed to discussing just case law, which as you said a lot of it doesn’t exist out there, but really just educating them on the potential impact and consequences of an NDA type agreement or clauses within an agreement. And also it’d be nice to see senior lawyer who have had those experiences like Ron has discussed, to mentor younger lawyers in their law firms. But I think also you’re seeing a generation of new lawyers coming in that are much more aware of the whole me too movement and are much more inclined to ensure that the work they do is inclusive and is perhaps a little bit more respectful of the parties. I mean I would hope so, they talk the talk, let’s hope that as lawyers they are very respectful of people when they’re helping clients through a difficult process like settling a claim like this.
Julia: And would you say even in our [unintelligible 00:41:20] where we have to respect as lawyers I think maybe there’s something that can be done there. And what do you think about law societies, I mean I kind of feel they also have some responsibility here, [unintelligible 00:41:33] Quebec for instance for Quebec, everywhere, law societies do you think they could also maybe push for that?
Jo-Anne: 100%. I think there’s a huge role here for the regulators and the law society to step up. I don’t know whether or not that’s something that’s realistically going to happen but the work that Jennifer’s doing on the Uniform Law Commission, or Conference, is part of that work, it’s about creating an awareness and building that in. But we dealt with that with money laundering, right? Our profession was so against doing any anti-money laundering kind of policies, about ID collection all these other things that banks had been doing for years. And there was such a resistance to do anything but basically what happened was the law society stepped up and said, “These are now your requirements when you open a file.” Well, so we know, we know they have the ability to make those changes, to move things in a positive way and so I think there is a big role for the regulators for sure.
Ronald: And the easiest way to do it is to have the CBA do it on the national ethics code, everybody looks at as the bible, and use that as the first steps, easier to commit and they already have a resolution of course. So that’d be one way to do it and then have the pressure from the branches come into the provincial regulators and say, “Hey, the CBA said this nationally, we should so it provincially” and do it that way.
Julia: Yeah. And also maybe because, Ronald you’re also talking about the people who sign it and they don’t know. So maybe there’s something to be done there too to inform, to make sure, to have those kind of podcasts maybe also, but to reach out to the people also, to the people who are forced to sign that and say, “Don’t sign it” or maybe yeah, to be more aware of our rights. That’s also always an issue I feel like, people are not aware of their rights. So also making sure but how to push for too I’m kind of asking the question.
Julie: Right and I mean even if we do get regulated change or legal change, legislative change, there’s a huge public education issue here. Just as there is around whistle-blowing, it’s actually very similar because people don’t know what their rights are and therefore they can’t avail themselves of it. But I do think that since we’re speaking to the profession primarily in this podcast, it’s important to say does the profession really want to be connected to using a device that’s so much is now being able to show is unfair, exploitative, people don’t understand it. I think there are a lot of people in the legal profession that don’t want to be a part of something that shady. And I have always been convinced, but then I am a perpetual optimist, that this is one of those issues that we’re going to look back on in a few years and say, “Do you remember all that crazy shit about NDAs, how people had to sign them all the time” and we’ll just shake our heads because we’ll be passed it. And I would like that to be sooner rather than later.
Jo-Anne: Yeah and I might also say I know that there are lawyers out there who are going to say, “Well, you can always write exceptions to NDAs, council or the complainant can always propose additional exceptions.” And that is true. But I would also suggest that sometimes you can’t anticipate all the situations that will face someone with respect to their need to want to disclose the situation for example perhaps in a future Alcoholics Anonymous type group, while their exception only provides for legal, medical and financial council, which is usually the typical exclusion or in situations where somebody may be indigenous, maybe they didn’t want to seek advice from a traditional leader and a healer and that won’t be provided for.
And I also think council for the employer or the person who wants the NDA, really think about what the concern of your client is and how to limit it to really what is necessary. I think often the concern is talk about things on social media in a workplace it’s usually everybody already knows about what’s happened in the harassment. And so you’re not really keeping something from all the other employees but your concern is maybe something on social media. So maybe just a clause restricting communications or talking or identifying specific people.
Julie: I mean I think the NDAs are a great example of something that I’ve seen for many, many years in the different studies I’ve done, empirical studies I’ve done of legal practice in Canada. And that is because we train people to take what I call a catastrophic approach to lawyering, everything that could possibly be a risk has to be covered off. And I think one of the things that the legal profession still hasn’t really understood is catastrophic lawyering isn't necessarily what really works for ordinary people. It might work for large corporations, but even for large corporations I’m not sure that it also isn't a waste of energy and time.
And I think the NDAs are a perfect example of a sort of public panic over social media, which after all has really only expanded it seems to be pretty much in the same period of time that we’ve seen the expansion of NDAs. And there’s this need which I think is greatly ingrained in lawyers by their training, to control everything, to control every possible outcome, to look at every possible no matter how tiny possibility as something bad happening. And what I really want to say about that is, get over it. We’re not going to control social media, we’ve got defamation laws, although they don’t work very well either, but that’s another podcast.
But we can’t expect that we can control everything that people do with social media. And I think it's panic about social media that has largely driven this exponential explosion of NDAs. Whereas the reality that those of us who work with victims know, is that they don’t want to put anything on social media either, they just want to be able to talk to their family and their friends and their therapists. So it’s a good example of I think what is a poor diagnosis of what the real scale of the problem is and what could be done to actually control it.
Ronald: And can I just add if we’re down after a lengthy dispute with the other party talking about settling a case. And we settle and the last thing on the table is the agreement, the release, no one is going to spend three days fighting about what can and can’t be disclosed in an NDA. That’s why the only way to do this is to have some super authority say, “You can’t do it.” Because lawyers will just beat you up until you capitulate, that’s just the way life is. So just we either have the bar societies, law societies do it or the government do it but don’t leave it to other lawyers because they have clients to represent and they’ll do whatever they can to get around it. And it’s best to make it illegal per se, that’s the best way to do it because the lawyers say, “I’m not going to draft this release, employer, you do it, you’re on your own, talk to them.” So they whisper in their ear, “Put the NDA in, right?” We don’t need that stuff. Let’s just make them illegal, just get rid of them, full stop. Just enough, enough, enough, we talked about it too much.
Julia: Well if ever there was a good place to end a podcast, that was it. Thank you, Ronald Pink K.C, thank you Julie Macfarlane, thank you Joanne Stark and thank you, Jennifer Khor. And thank you for listening to us. I’m Julia Tetrault Provencher and I’m saying feel free not so sign an NDA straight away. And so feel free to reach out to us about anything at all at podcast@cba.org. Talk to you again soon.
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