Can’t Buy My Silence on the Hill: restricting the abusive use of NDAs

“I agreed to hide a part of me that needs to be healed. I live small, because I feel I am not worth justice. I can’t speak my truth as so many others have been empowered to do.” This quotation is from one of over 100 anonymized testimonies gathered over the past two-and-a-half years as part of our campaign to restrict the abusive use of non-disclosure agreements (NDAs) to cover up misconduct. This person was sexually harassed at work, and upon making a complaint was offered a settlement and required to sign an NDA. These agreements are forever, and typically forbid any communication about the misconduct—even with family, friends, or a therapist. Sadly, this is not an uncommon story, and our data shows that abuse victims are regularly coerced to sign NDAs, and rarely understand the implications at the time. This individual, like so many others, describes their constant regret: “I feel dirty for taking money to keep his crime secret. I feel guilt that someone else will be his victim.” Zelda Perkins, a former assistant to Harvey Weinstein, broke her NDA in 2017. Photograph courtesy of Zelda Perkins We co-founded the Can’t Buy My Silence campaign in 2021, determined to ensure that our personal experiences with NDAs could not go on being repeated. Because of the frequency with which these agreements are required for civil settlement of misconduct issues, we know that legislative and regulatory reform are essential to make NDAs hiding harm illegal and unenforceable. To that end we have been lobbying successfully on a national and international level, building public awareness, and providing a safe space for victims to speak out and to discover their options and rights. Can’t Buy My Silence will be on Parliament Hill on May 1, sponsored by Senator Marilou McPhedran, whose Bill S-261 has been tabled for nearly a year. but has yet to complete second reading. While most employment law matters are under provincial jurisdiction, we have been contacted by many individuals who—as federal employees, or employees at federally funded agencies, including Hockey Canada, the RCMP, and the CBC—have been forced into NDAs. This was in order to receive compensation and severance following complaints of discrimination, sexual misconduct, harassment, or failure to accommodate disabilities. Most have signed and are left unable to discuss what happened to them, warn others, or prevent continued abuse as the perpetrators remain in the organization. Victims are often left wondering whether they received their legal entitlement to severance and other benefits. A few have refused to sign NDAs, and are left without any compensation or severance. They are often subject to constant bullying from lawyers and employers alike who are frustrated by their resistance. Julie Macfarlane is an emerita professor of law, and a member of the Order of Canada. Photograph courtesy of Julie Macfarlane It cannot be right that public money is used to hide the abuse of those working in public service. Can’t Buy My Silence wants to remove this threat, and the lacuna in protection that NDAs create. It seems obvious to say that Canadians should expect better from their federal government. They should provide a safe workplace where misconduct is punished and not covered up, where there is support for victims, and where they receive legal and fair compensatory packages. All of this is impossible where NDAs are used with impunity. Bill C-261 deserves to be fully debated as more and more politicians wake up to the long-term damage NDAs create. The proposed law would prevent public money from being used to either generate or enforce an NDA unless it was specifically requested by a victim who has been provided with independent legal advice. This advice must also explain the alternatives for personal confidentiality—for example, a one-sided confidentiality clause that does not require the victim to protect the perpetrator in exchange, as NDAs do. Survivor groups like My Voice, My Choice have pushed for a victim-centred model for criminal publication bans, while a study by the Canadian Heritage Committee titled Safe Sport in Canada has drawn attention to the widespread abuse of NDAs in sports—and in the process, both have set the scene for a push toward federal legislation that would make workplaces and organizations safer. Changing the law would also finally take the burden off the likely thousands of public servants and publicly funded individuals forced to stay silent about the abuses they have experienced. “I never would have agreed to be silenced if I knew the long-term impact it would have on my health, my personal relationships, and the safety of others. It should be over by now; I should have healed and moved on with my life,” wrote one victim who submitted a testimonial. “The reason it isn’t over is because I was silenced.” Zelda Perkins and Julie Macfarlane are the co-founders of Can’t Buy My Silence, campaigning to restrict the use of NDAs to cover up misconduct. Perkins was formerly assistant to Harvey Weinstein, and broke her NDA in 2017. Macfarlane is an emerita professor of law, and a member of the Order of Canada. The Hill Times