Dr. Julie Macfarlane is Emerita Distinguished Professor of Law at the University of Windsor, and co-founder of Can’t Buy My Silence.
The Hockey Canada scandal is back in the headlines after five players were charged over an alleged group sexual assault that took place in a London, Ont., hotel room in 2018. The arrests follow the 2022 revelation that Hockey Canada used player registration fees to pay off victims of sexual assaults and quiet them with non-disclosure agreements, or NDAs.
London police chief Thai Truong was repeatedly asked in the press conference, “Why did it take so long to bring charges?” Chief Truong made a remarkable acknowledgment: “I want to extend … my sincerest apology to the victim, to her family, for the amount of time that it has taken to reach this point.”
While Hockey Canada has faced intense public backlash, they aren’t the only ones covering up alleged abuses. What many don’t realize is the same pattern is playing out again and again in hundreds of workplaces, clubs and institutions across Canada – largely because of the prolific use of NDAs.
Research indicates that one in three workers have signed NDAs, often without fully understanding the future implications. We also know from data collected by the non-profit Speak Out Revolution that most victims of sexual abuse, discrimination and other harms choose not to complain because they worry about the damage to their careers or don’t believe anything will be done, and one in three are deterred because they anticipate being asked to sign an NDA.
Those victims are right. If they do proceed, the next step will usually be a workplace investigation and many employers or organizations require the complainant to sign an indefinite NDA first. Next, when the investigation is completed, the complainant is typically told they cannot access the investigator’s report without – you guessed it – signing another NDA. (The results of the Hockey Canada investigation, we are told, might never be released).
Complainants are then expected to settle, which almost always comes with an NDA; lawyers estimate they are used in 95 per cent of settlements. If they resist, they face dragged-out negotiations designed to wear them down and get them to sign. Interestingly, we have also observed that those who resist usually get a settlement without an NDA because the last thing the other side wants is a public trial like the Hockey Canada case.
If they do sign, the case disappears – literally. Often part of the agreement is to erase complaints from perpetrators’ human resource records, and to provide a letter of reference. New employers – or sports clubs, churches, schools, or universities – never learn of the perpetrator’s history, even after they reoffend. Meanwhile, victims are unable to speak out – even to friends or therapists – causing immense emotional and psychological damage to them, and endangering future victims.
NDAs were originally created in the 1970s to protect trade secrets in the Silicon Valley tech explosion; now every type of embarrassing revelation is treated as a “trade secret.” The Hockey Canada scandal demonstrates the creeping use of NDAs, which is that they have grown into a beast in the last 20 years.
Over the past year, we have seen legislation tabled across Canada, including at the federal level, that would put an end to the use of NDAs in cases of sexual abuse, discrimination and other misconduct. The federal bill sponsored by Sen. Marilou McPhedran “follows the money” and would ban the federal government and federally funded organizations from creating or enforcing NDAs with public funds. Four provinces have a private member’s bill on the books, and Prince Edward Island has already passed legislation. This reform has also been undertaken in almost 20 U.S. states.
Some argue that if NDAs are banned, settlement rates will drop, which is bad for victims. However, in U.S. states that have enacted restrictions on NDAs, settlement rates have actually gone up, not down.
The Hockey Canada case reconfirms that if we allow organizations to make complaints and accountability systems secondary to their desperate need to guard their reputations, we only enable perpetrators and further traumatize victims. Now, instead of only playing defence when scandals erupt, we need leaders in sports, government, business and other institutions to finally change the game.
Editor’s note: A previous version of this article incorrectly stated Hockey Canada used taxpayer dollars to settle sexual assault claims. The funds came from player registration fees. The previous version incorrectly stated that London Police Service sent the complainant back to Hockey Canada for its own internal investigation. Hockey Canada had opened its own investigation in June 2018 and the police closed their investigation in Feb. 2019. The previous version incorrectly implied that Hockey Canada’s NDA was responsible for the delay in police charges. This version has been corrected.