Abuse and harassment survivors ‘silenced’ by non-disclosure agreements fight for change to B.C. law

WARNING: This article contains references to sexual abuse and may affect those who have experienced​ ​​​abuse or know someone affected by it. 

Not even the death of her father could free Susan MacRae from the legal restraints that prevent her from talking about the sexual abuse she allegedly suffered as a child.

Four years ago, a B.C. judge dismissed MacRae’s application to nullify the non-disclosure agreement she’d signed in 1997 as part of a legal settlement, court documents show. 

Not only that, MacRae was ordered to pay her father’s estate $500 in court costs.

“It’s so insulting,” the Vancouver woman said.

Though she is legally forbidden to speak about what happened to her when she was a child, MacRae’s 84-year-old mother Marie is not and has confirmed MacRae told her about the alleged sexual abuse long before the NDA.

Now they’ve both joined the fight to have the provincial and federal governments bring in legislation that would severely limit the use of non-disclosure agreements (NDAs), banning them entirely in cases of abuse, harassment and discrimination. 

“People cannot heal if they are still silenced about what happened to them,” MacRae said.

‘We don’t want NDAs to be misused’

The movement is quickly picking up steam in Canada.

Just this spring, Prince Edward Island officially became the first province to limit the use of NDAs, and similar legislation has been introduced in Nova Scotia and Manitoba.

In B.C., representatives of the anti-NDA Can’t Buy My Silence campaign say they’ve been meeting regularly with government staff.

A spokesperson for the attorney general’s office told CBC in an email that the ministry is watching developments in other provinces to see whether any changes should be made to B.C. law.

“We know non-disclosure agreements and confidentiality agreements can serve useful roles when used appropriately.  But we don’t want NDAs to be misused to silence survivors of harassment, abuse and discrimination,” the email said.

The Can’t Buy My Silence campaign was launched by Julie Macfarlane, a professor emerita in the law department at the University of Windsor in Ontario, and Zelda Perkins, a former assistant to disgraced movie producer and sexual predator Harvey Weinstein.

Both have personal experience with NDAs. 

Perkins broke hers to speak out about what she experienced and witnessed while working for Weinstein. 

Macfarlane sued the Anglican Church over her sexual abuse by a minister and, during settlement negotiations, convinced the church to end its practice of using NDAs in similar cases. 

She said NDAs have been increasingly common in the academic world and employment disputes, becoming pervasive and normalized within the last decade. Those who’ve signed them in cases of abuse and harassment told CBC they were made to believe it was the only way to settle their complaints.

The goal of Macfarlane’s campaign is to make sure these agreements are only used for their original purpose — to protect trade secrets from competitors in the business world.

She believes that in a post-Me Too world, restricting NDAs is critical to ensuring wrongdoers are held accountable.

“If you end up signing an NDA, which enormous proportions of these cases end up with … you haven’t really achieved anything. The person who will have done the misdeeds is free to continue, maybe in a different workplace, and most often, the person who brought the original complaint will be out of a job with a small payment which will only last so long,” Macfarlane said.

‘It’s absurd that they’re legal at all’

She pointed out that victims who sign NDAs related to their work are often shut out of future employment because they can’t explain why they left their last job.

That’s what happened to a B.C. woman who signed an NDA in 2020 to settle a human rights complaint alleging relentless sexual harassment by her boss at a large public body.

The woman, whom CBC is not identifying because of the potential legal repercussions, said it would have been impossible for her to find a new job in the same field after her settlement.

Luckily, she was ready for a career change, but the process has left her feeling jaded and disillusioned.

“I cried a whole bunch. I don’t trust anyone. I certainly don’t trust institutions. It made me think, why does society hate women so much?” she said.

“This isn’t a process meant to solve a problem or address an issue. It’s meant only to silence victims and protect the reputation of institutions.”

She said she filed her original complaint with the hope of receiving a public apology and protecting other women, but her lawyer informed her the best-case scenario would be a financial settlement with a confidentiality clause.

“I think it’s absurd that they’re legal at all. It keeps us in the dark ages. Institutions can’t grow. Society can’t change or evolve when no one knows there’s a problem,” she said.

Alleged victim of abuse was sued for breaking NDA

According to Macfarlane, many NDAs are likely not enforceable in Canadian courts, but trying to challenge them can be intimidating and expensive.

In 2016, an Ontario woman named Sherri Thomson was sued by her mother, Eileen Wilke, then a village councillor in Lions Bay, B.C., and her stepfather Ronald Wilke for publicly sharing details about her childhood sexual abuse allegations.

In defiance of a decades-old NDA, Thomson sent letters outlining the alleged abuse to various people in the Lions Bay community after learning that her mother was running for municipal office.

According to court documents, Thomson settled a lawsuit in the 1990s over allegations that Ronald Wilke had sexually abused her for years and Eileen Wilke failed to protect her.

Eileen Wilke resigned from council after the Vancouver Sun reported on her lawsuit against Thomson, and the case has never gone to trial or been settled.

The anti-NDA movement is a global one.

In the U.K., two private members’ bills have been introduced based on model legislation developed by Can’t Buy My Silence, and 67 universities have signed the campaign’s pledge to never use non-disclosure agreements. No Canadian universities have signed the pledge.

A bill is also working its way through the approval process in Ireland, and the Australian state of Victoria has proposed similar restrictions.

Closer to home, lawmakers in the U.S. have introduced legislation that would prevent employers from enforcing NDAs in cases of sexual misconduct.

For Susan MacRae, the momentum of the movement has been potentially life-saving.

“Last year in July, to be honest, I was suicidal … I just was totally exhausted by trying to convince people that this is a priority,” she said.

“For the first time in many, many, many years, I feel that things are changing.”

---

Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. ​​If you’re in immediate danger or fear for your safety or that of others around you, please call 911.