Julie Macfarlane
Our final episode for this season focuses on the campaign to ban the misuse of non-disclosure agreements (NDAs) being led by Dr. Julie Macfarlane and Zelda Perkins.
Named “Can’t Buy My Silence,” Julie and Zelda’s campaign aims to bring new law into effect in both Canada and the UK to stop victims being forced to exchange their own privacy for protecting their abuser in cases of harassment, discrimination, and bullying, and to stop employers (including schools, universities, and churches as well as both unionized and non-unionized workplaces) using NDAs to secretly “pass-the-trash” to other employers.
Julie talks with Dayna about how she and Zelda met and planned the campaign, both motivated by their personal experiences of NDAs: Zelda with the notorious Harvey Weinstein, and Julie who saw a colleague terminated for harassment protected by an NDA (and a letter of recommendation) from the University of Windsor.
Stacey Buchholzer
Stacey Buchholzer, the campaign coordinator, closes out the podcast by reading from a selection of the many stories that have been submitted to the campaign, illustrating the trauma experienced from being first subjected to unfairness and misconduct, and then permanently silenced.
The campaign website includes a lot of public legal information about NDAs. You can also listen here if you missed it to Julie’s conversation with Zelda from last season, before they launched their campaign, in which Zelda describes how she broke her NDA with Weinstein and brought this issue into public discussion, which she has continued ever since.
In Other News
Charlotte Sullivan
This week our In Other News Correspondent is Research Assistant Charlotte Sullivan. Charlotte discusses: a Toronto-based legal clinic’s recent challenge against caps on damages awarded in claims involving the Canadian Human Rights Act; and Chief Justice Jacques Fournier of the Québec Superior Court’s recent decision to step down from the bench at the age of 71, and some interesting comments he made regarding access to justice in the COVID-19 pandemic context.
“Legal clinic challenging damages caps in Canadian Human Rights Act” (Canadian Lawyer)
Jumping Off the Ivory Tower is produced and hosted by Julie Macfarlane and Dayna Cornwall; production and editing by Brauntë Petric; Other News produced and hosted by Charlotte Sullivan; promotion by Moya McAlister and the NSRLP team.
“Just settle”, they said, but without ordering disclosure of documents of opposing parties.
“It’s a simple case”, they said.
“You need to make an offer to settle,” they said…but settlements fall under non-disclosure agreements as do closed proceedings, I believe.
Did you know that lawyers are not required to search land titles beyond 40 years? How many peeps out there have parents who owned their homes for over 40 years? How many of you may become an estate trustee (executor) required to handle real and other property?
How many would question the potential liability of terms in historic land development mortgages such as”heirs”, and “successors and assigns” written in historic mortgages that may show in the land registry as “discharged” or “discharged off of this property”? But were they ever fully “CLOSED” 60 years prior? What affect does a Crown Patent or terms of a First Nations Treaty still potentially have to this day on your home in the burbs? Is anyone recycling those $1.5m indentures from 1958?
How would one know they were a revocable trust “successor” trustee vice an estate trustee/executor, if not disclosed? (*hint – what’s the difference between Registry Act land registries vice Land Titles Conversion Qualified (“LTCQ”) electronric registries?) What can you find beyond 40 years???
One lawyer said “words matter in law”.
A non-disclosure settlement agreement may have left one in serious liability with difficult recourse. #JustMyThoughtsOnly
Oh yes, and what about those Med/Arb agreements? Where one party may have believed their matrimonial mortgage was closed out simply by the word “discharged” or “discharged off of this property” and “deleted” from the land registry?
But was that matrimonial mortgage fully CLOSED? Or was that previously approved credit recyclable? How was that credit product actually used? Was it’s use fully disclosed in those non-disclosure agreement closed proceedings where they strongly encouraged you to sign a settlement agreement without legal advice allegedly? Who bares the liability if they weren’t closed and payments go into arrears after a NDA settlement was signed? (Please don’t paper over the issue with Titles Insurance, btw.)
Sure there may be remedies, but at what costs and for how much longer to resolve the elephant potentially swept under the rug?
I can’t say that I know much about the topic of non-disclosure agreements. I was once offered the paltry sum of $7500 – over the phone – if I would agree to the cancellation of a legal proceeding. I don’t know if I would have been forced to sign something about keeping quiet if I had agreed to accept that money. I didn’t agree, the hearing – held in private – went ahead, and thus began a long journey. Another goal I now have is to see those types of hearing made subject to the open court principle. I anticipate going back to court on that mission – for which I will have to be granted public interest standing.
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So, it is of great interest to me that earlier this year we started to hear a little bit from the media about “secret trials”, two of them, one in Quebec and one in B.C. They are both very strange stories. My feeling is that if the media had been doing its job, they and we wouldn’t now be blindsided by such stories. The latest article I found today is this one – https://vancouversun.com/news/local-news/postmedia-appeals-judges-refusal-to-release-information-about-secret-b-c-trial .
All too often Nondisclosure Agreements – NDRs, are benign forced upon a party and there is no consideration of silence on that party for the interests of public safety or the need for ongoing care for that victim.
Often, we hear of repeat sex offenders, child abusers, and big corporations being able to avoid any real responsibility or even justice because of NDRs. Only then to openly allow them to repeatedly re-offend, creating even more victims.
To me it should go without question that in a case where public safety is of concern, NDRs should be declared of no force and/or effect.
I agree that a law must be created to ensure the public interest of all Canadians, where public safety NDRs should be declared of no force or effect by law.
I would also add that for those victims seeking therapy, if speaking openly about the crime against them, that too should void an NDR.
Sadly, let’s be honest that in most cases where cases are settle it is because the victim is low or lower income, and the aggressor or protector of the aggressor has unlimited resources. In most cases causing the victim to agree to a settlement and forcibly signing an NDR.
To me, that is the real crime!