Senator wants to end federal non-disclosure agreements silencing misconduct victims

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This article was published 10/08/2022 (771 days ago), so information in it may no longer be current.

OTTAWA — As MPs grill Hockey Canada over payouts and stifling sexual-assault allegations, a Manitoba senator wants to prevent all federal bodies from using non-disclosure agreements in misconduct cases.

“We’ve stepped out of our collective denial, and people are paying attention,” said Sen. Marilou McPhedran.

“As humans, we don’t want any of this to be true; we don’t want institutions that perpetuate a rape culture.”

In May, the Prince Edward Island government put into effect a law that bans non-disclosure agreements that have “the purpose or effect of concealing the details relating to a complaint of harassment or discrimination.”

The Manitoba Liberals tabled a similar bill in April, which has yet to be debated.

No similar legislation has been tabled at the federal level, which includes departments and Crown corporations as well as certain private sectors, such as banking and broadcasting.

In the past year, McPhedran has been consulting with lawyers in Canada as well as legislators in different countries on how best to craft a bill that could prevent NDAs from being used to silence victims. She plans to table legislation when Parliament resumes in September.

The bill could affect the terms that Ottawa puts on funding for bodies such as Hockey Canada, and influence provinces to craft their own legislation for workplaces and organizations.

The Trudeau Liberals beefed up the rules around harassment in federal workplaces through a bill they passed in 2018, but didn’t make into law until the start of 2021. That legislation did not include restrictions on the use of gag orders.

Labour Minister Seamus O’Regan’s office said it has no plans to amend that law to restrict non-disclosure agreements, but noted that it could be part of a review of new anti-harassment rules, which by law must start by 2026.

“While the government continues to engage with stakeholders for feedback and recommendations to improve standards for workers, currently, there are no plans to pursue further changes to the regime,” wrote spokesman Daniel Pollak.

“The enhanced measures require that new measures be reviewed within five years, and it is expected that any additional measures that may be required would be addressed once the review is completed.”

At an unrelated press conference at the Manitoba legislature, federal Gender Equality Minister Marci Ien said she supports O’Regan’s approach.

“I know that he is working diligently on this, and I know that his comments — the comments he’s making, he’s making for a reason,” Ien said.

“We will continue to work collaboratively in that way, to address workplace harassment (and) any other type of harassment.”

McPhedran seems optimistic the Liberals will move well before 2026, either by supporting her bill or by changing their own legislation.

The non-affiliated senator said she’s had “very productive conversations” with ministerial staffers, particularly since May when revelations emerged that Hockey Canada issued payouts to women alleging sexual assault.

“Right now, I think there’s a high level of genuine interest and concern, among a range of government policy developers,” she said, adding that she can tell when political staff are not interested.

Next month’s she’ll help lead a virtual roundtable of international lawmakers to hear about how they can cut down on the misuse of gag orders. The event will include Irish Senator Lynn Ruane, whose bill this summer gave employees in Ireland the right to seek legal counsel before signing an NDA, and to refuse one.

McPhedran’s career focused on power dynamics in harassment sexual abuse, and she’s pushed the Senate since her appointment in 2016 to have more transparent policies within the upper house, with some pushback from colleagues.

The public’s interest in the issue ebbs and flows, she said, but she believes Canadians have been deeply shaken from the revelation that the fees parents pay for their children to play hockey have been used to pay settlements that stifle allegations of sexual assault.

“When we see the kind of thoughtful attention, and the responsiveness of our parliamentarians in holding these hearings in the middle of summer, this is an important signal,” she said.

“This is a strong time of potential, to actually make some of the systemic changes that I believe strongly are needed.”

— with files from Carol Sanders

dylan.robertson@freepress.mb.ca