Abuse and harassment survivors ‘silenced’ by non-disclosure agreements fight for BC law change

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

Even her father’s death could not free Susan MacRae from the legal restraints that prevent her from speaking out about the sexual abuse she allegedly suffered as a child.

Four years ago, a British Columbia judge denied MacRae’s request to void the nondisclosure agreement she 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,” said the Vancouverite.

Although she is legally prohibited from talking about what happened to her as a child, MacRae’s mother Marie, 84, is not and has confirmed that MacRae told her about the alleged sexual abuse long before the NDA.

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

“People can’t heal if they’re still silenced about what happened to them,” MacRae said.

“We don’t want NDAs to be misused”

The movement is rapidly gaining momentum in Canada.

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

In British Columbia, representatives of the anti-NDA campaign Can’t Buy My Silence say they met regularly with government staff.

A spokesperson for the attorney general’s office told CBC in an email that the department was monitoring developments in other provinces to see if any changes were needed to British Columbia’s law.

“We know that non-disclosure agreements and confidentiality agreements can play a useful role when used appropriately. But we don’t want NDAs to be misused to silence victims of harassment, of abuse and discrimination,” the email reads.

Julie Macfarlane is one of the co-founders of the Can’t Buy My Silence campaign to strictly limit the use of NDAs around the world. (Radio Canada)

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

Both have personal experience with NDAs.

Perkins broke hers to talk about what she’s been through and seen working for Weinstein.

Macfarlane sued the Anglican Church for his 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 were increasingly common in academia and industrial disputes, becoming ubiquitous and normalized over the past decade. Those who signed them in cases of abuse and harassment told CBC they were made to believe it was the only way to resolve their complaints.

Macfarlane’s campaign goal is to ensure that these agreements are only used for their original purpose – to protect the trade secrets of competitors in the business world.

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

“If you end up signing an NDA, which results in huge proportions of these cases… you really haven’t achieved anything. The person who did the wrongdoing is free to continue, perhaps in a different workplace , and more often than not, the person who filed the original complaint will be out of a job with a small payment that will only last for a while,” Macfarlane said.

“It’s absurd that they are legal at all”

She pointed out that victims who sign NDAs related to their work are often barred from future employment because they cannot explain why they left their last job.

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

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

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

“I cried a whole lot. I don’t trust anyone. I definitely don’t trust institutions. It got me thinking, why does society hate women so much?” she says.

“This is not a process intended to solve a problem or solve a problem. It is only intended to silence the victims and protect the reputation of the institutions.”

A BC woman who signed an NDA to settle a sexual harassment complaint against her boss says the process has left her feeling disillusioned. (Shutterstock)

She said she filed her original lawsuit in hopes of receiving a public apology and protecting other women, but her attorney advised her the best-case scenario would be a financial settlement with a confidentiality clause.

“I think it’s absurd that they’re legal. It keeps us in the dark ages. Institutions can’t grow. Society can’t change or evolve when nobody knows there’s a problem. “, she said.

The alleged abuse victim was sued for violating the NDA

According to Macfarlane, many NDAs are unlikely to be enforceable in Canadian courts, but trying to challenge them can be daunting and costly.

In 2016, an Ontarian named Sherri Thomson was sued by her mother, Eileen Wilkethen a village councilor in Lions Bay, British Columbia, and her stepfather Ronald Wilke for publicly sharing details of his 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 his mother was running for mayor.

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

Eileen Wilke resigned from the board after the Vancouver Sun reported on his trial against Thomson, and the case never went to trial or was ever settled.

Susan MacRae, a blonde woman wearing a wide-brimmed hat, is pictured in Vancouver's West End on Monday, July 18, 2022. MacRae is shown in profile, leaning against a brown-painted pole in front of an apartment building, and is dressed light pants, a white denim jacket, a turquoise shirt and a pink scarf.
Susan MacRae says she has hope for the first time in many years. (Ben Nelms/CBC)

The anti-NDA movement is global.

In the UK, two private members’ bills were tabled based on model legislation developed by Can’t Buy My Silence, and 67 universities signed the campaign’s pledge never to use non-disclosure agreements. No Canadian university has signed the pledge.

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

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

For Susan MacCrae, the momentum of the movement has potentially saved lives.

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

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

Support is available for anyone who has experienced sexual assault. You can access crisis lines and local support services through this Government of Canada website or the Canadian Association for the Elimination of Violence Database. If you are in immediate danger or fear for your safety or the safety of those around you, please call 911.