A London personal injury lawyer is campaigning for an amendment to proposed Ontario legislation that he says does not go far enough to restrict non-disclosure agreements in sexual assault cases in post-secondary settings.
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A London personal injury lawyer is campaigning for an amendment to proposed Ontario legislation that he says does not go far enough to restrict non-disclosure agreements in sexual assault cases in post-secondary settings.
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If passed, Bill 26, currently in committee stage, will amend the law of the province’s Department of Education, Colleges and Universities to allow public and private post-secondary institutions to immediately fire employees who commit sexual abuse. Among other measures included in Bill 26, the use of non-disclosure agreements (NDAs) will be restricted.
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Often used when an employee is fired for sexual harassment or other sexual misconduct, NDAs oblige both parties to remain silent about the reason for the termination, says Rob Talach, a partner at Beckett Personal Injury Laws. The bill should be changed, he said, by changing when non-disclosure agreements are restricted, from a sexual abuse finding, as proposed, to a sexual abuse allegation.
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Talach said the change is important because “sexual abusers, abusers, don’t just do it once.”
“They’re creatures of habit, so you need to come out and stop their victimization,” he said. “If you cover them with secrecy, they just keep going.”
Non-disclosure agreements are a “common feature” in sex abuse litigation, but a movement that began in Prince Edward Island advocates making the agreements “illegal or heavily restricted,” Talach said.
Similar calculations were also making their way through systems in Ireland, Nova Scotia and Manitoba, he said.
“This is the first foray into this concept in Ontario,” Talach said.
The Ontario government introduced the Post-Secondary Institutions and Students Strengthening Act in October 2022.
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“We knew from day one that this government would have zero tolerance for sexual assault and harassment,” said Jill Dunlop, Secretary of State for Colleges and Universities, late last month.
But the bill being introduced in Ontario is “really just window dressing,” Talach said.
“The ban on NDAs they propose only applies if sexual misconduct has been identified,” he said. “If a court, tribunal or arbitrator has found that sexual abuse has occurred . . . The reality is that a tiny number (roughly one percent) of cases actually go the distance.”
The wording could also potentially lead to a defendant perching in front of a finding because “they don’t want their name out there.” Talach said.
Victims don’t want to go through a “completely intrusive process,” either, he said.
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“The simple solution . . . is to change “a statement” to “an assertion”. That solves it,” he said.
Talach works with Julie Macfarlane, adexcellent university professor (emeritus) at the University of Windsor, who founded the group Can’t Buy My Silence.
“NDAs prohibit any person associated with the institution from disclosing the fact that a court has found that an employee committed an act of sexually abusing a student at the institution,” she said.
Macfarlane, who was awarded the Order of Canada for her work on access to justice and sexual violence, co-founded Can’t Buy My Silence a year ago with the aim of “prohibiting the abuse of non-disclosure agreements”.
“NDAs allow offenders to continue their wrongdoing without the knowledge of others, including new employers,” she said. “They silence the victims and cause lasting trauma.”
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They are also designed to protect an employer’s reputation by essentially gag victims of sexual abuse, Macfarlane said.
The proposed law “will not prevent non-disclosure agreements used to cover up wrongdoing before a decision is made,” she said.
“Meanwhile, public money is being used by universities — and many are using NDAs — to pay offenders and hide the settlement,” she said.
Both MacFarlane and Talach applied Wednesday to speak before the committee reviewing the bill, but were not invited despite their years of experience and expertise, Talach said.
“I don’t know who they’re hearing from, but you can guarantee that there are many voices from university faculty and from associations and all authorities who want to keep NDAs alive,” he said.
The Department for Colleges and Universities did not immediately respond to a request for comment.
