Principles to Prevent Misuse of Non-Disclosure Agreements in Cases of Abuse and Harassment

WHEREAS workplace harassment refers to any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment;

WHEREAS discrimination refers to the unfair or prejudicial treatment of people and groups based on characteristics listed in human rights legislation, such as race, gender, age, disability or sexual orientation;

WHEREAS employers in Canada have an obligation to investigate and address complaints of workplace harassment and discrimination, and to protect the health and safety of their employees;

WHEREAS other organizations have an obligation to investigate and address complaints of harassment and discrimination in their organizations;

WHEREAS the widespread and systemic use of non-disclosure agreements (NDAs) has been found to protect an employer’s reputation at the expense of victims or whistleblowers, who may be unable to report or discuss their concerns with family, friends, co-workers or therapists;

WHEREAS NDAs are routinely used to cover up abuse in schools, youth clubs, universities, organizations and religious institutions where revealing the details of the settlement may result in reputational risk or criminal charges against the perpetrator.

BE IT RESOLVED THAT the Canadian Bar Association:

  1. promote the fair and proper use of NDAs as a method to protect intellectual property and discourage their use to silence victims and whistleblowers who report experiences of abuse, discrimination and harassment in Canada;
  2. advocate and lobby the federal, provincial and territorial governments to enact changes to legislation and policies to ensure NDAs are not misused for the purpose of silencing victims and whistleblowers.

Moved by Jo-Anne Stark

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