The petition is the latest push by the Can't Buy My Silence campaign to curtail NDA use in Canada
New Democratic Party Member of Parliament Brian Masse is slated to submit a petition to the House of Commons on Monday urging other MPs to pass a bill that would ban the federal government and federally funded agencies from enforcing non-disclosure agreements in cases involving harassment, violence, or discrimination unless the victim requests otherwise.
Bill S-261, or the Can’t Buy Silence Act, was introduced by Sen. Marilou McPhedran and first tabled by the Senate in 2023. Monday’s petition is the latest effort to move the bill forward by the Can’t Buy My Silence campaign, which launched in 2021 and has advocated for legislation and regulations around NDAs in Canada, the UK, Canada, and Ireland.
Since the #MeToo movement, multiple jurisdictions have passed reforms around how employers can use NDAs. In the US, 21 states introduced laws with varying restrictions on NDA use in cases involving sexual misconduct in the workplace. US President Joe Biden signed the Speak Out Act into law in 2022, banning the use of pre-dispute NDAs and non-disparagement clauses related to allegations of sexual harassment or assault.
The same year, the Non-Disclosure Agreements Act, which bans using NDAs in cases where an individual alleges discrimination and harassment, came into force in Prince Edward Island. In December 2022, Ontario became the next province to enact NDA restrictions, prohibiting the use of the agreements at post-secondary schools in sexual misconduct cases involving staff and students. The Canadian Bar Association and multiple unions have since resolved to restrict the use of NDAs, while more bills on the subject have been introduced in Manitoba, British Columbia, Saskatchewan, and Ontario.
Provinces largely have jurisdiction over employment law within their borders, while the federal government’s authority over employment matters is generally limited to federally-regulated industries. If passed, Bill S-261 would add to the patchwork of NDA restrictions that currently cover segments of the Canadian workforce.
The motivation to push for legislation that protects employees of the federal government and federally-funded agencies is twofold, says Julie Macfarlane, co-founder of the Can’t Buy My Silence campaign and emerita distinguished professor of law at the University of Windsor.
“There are approximately 600,000 people who are employed by the federal civil service, and at the moment, they're not protected in any way from non-disclosure agreements,” Macfarlane says. “We do know – because I've spoken directly with a number of people who fall into this category – that the federal government does use NDAs when there is a resolution to a complaint about something that is embarrassing, and they don't want to come out… for example, sexual harassment, racism, things that they don't really want people to talk about afterwards.”
The second reason is “symbolic,” Macfarlane says. “I think it says that the Canadian government recognizes the harm of covering up misconduct and not allowing victims to speak to others, including family, friends, or even their therapists, about what has happened to them.”
She adds, “It doesn't look so great if Canada is actually now behind places like Utah, Tennessee.”
Macfarlane notes that the discourse around NDAs has changed since she co-launched Can’t Buy My Silence with Zelda Perkins, a former assistant for Harvey Weinstein who broke an NDA with him in 2017. In the past year, she says, “When I talk to private employers now and ask them, ‘Would you ever enforce any of your existing NDAs?’ They just laugh and say, ‘Well, of course not, because we’d just look like total scumbags.’
“That has definitely changed as public awareness changed as well.”
Some employers, including Google, Salesforce, Apple, and the BBC, have announced plans in recent years to loosen their NDA policies, while others have pledged with the Can’t Buy My Silence campaign to stop using them in cases involving misconduct. Macfarlane notes that some companies with operations in multiple jurisdictions have recognized the challenges of enforcing NDAs in some locations and not others.
“I think what we're seeing, to begin with, is international companies recognizing that this is the direction that things are going, and ultimately, this is going to be the law everywhere, which I believe it will be in Canada too,” she says. “They’re being proactive, in that sense, and saying they won't use them any longer.”
The campaign aims to continue petitioning Parliament until Bill S-261 passes.
“We're doing this because I think that there are a lot of people who still don't realize, including MPs, just how incredibly pervasive this has become,” Macfarlane says.
“People now anticipate if they bring a workplace complaint forward, or if they bring a civil claim, that they will be faced with a non-disclosure agreement, and it is stopping people bringing forward complaints in the workplace,” she says, adding, “That’s the kind of thing I think we really need MPs to know.”
