Hockey Canada reopening investigation into alleged 2018 sexual assault

In May 2022, Hockey Canada quietly settled a lawsuit after a woman claimed she was sexually assaulted by eight players, including members of Canada’s 2018 gold-medal junior team. After coming under public scrutiny, the sports federation has recently reopened its investigation into the handling of the allegations.

As part of those investigations, the Standing Committee on Canadian Heritage has requested a copy of the non-disclosure agreement entered into by the parties to the May 2022 settlement, raising issues over the effect that the non-disclosure agreement will have on the ability of the interested parties to investigate the matter. This has Canadians wondering about how non-disclosure agreements may affect their own rights as employees.

What is a Non-Disclosure Agreement?

Non-Disclosure Agreements (NDAs) are legally binding contracts between at least two parties that require the individuals involved to keep certain information confidential. NDAs are more widespread than you might think. They are commonly found as clauses in employment agreements, in settlement documents, or as standalone contracts.

In employment agreements, NDAs can provide employers with protections regarding the use of proprietary information that has been disclosed to employees through the course of their employment to maintain competitive advantages, both during employment and after the employment relationship comes to an end.

In settlement documents, an NDA or confidentiality provision typically prevents a terminated employee from discussing the circumstances or amounts of a settlement. These types of clauses are extremely common.

NDAs, Harassment and Discrimination in The Workplace

Employees in Canada have the right to a workplace free from bullying, inappropriate and unwelcome actions and comments, sexual harassment, and discrimination. This means that employers have an obligation to provide an environment that prevents this type of unwanted behaviour from taking place and must respond quickly to harassment when it happens. Employers must have specific policies in place to address workplace harassment and investigate all claims brought forward by employees. After an investigation, a report must be produced, and the issue must be properly resolved.

NDAs are common in settling sexual harassment and discrimination claims, as employers seek to limit the exposure of their failure to prevent this behaviour. By entering an NDA, employees are often unable to continue sharing their experiences. NDAs can allow repeat harassers to continue their mistreatment of others.

Recently, with the rise of the #MeToo movement, NDAs have come under scrutiny, since employees who are victims of harassment are silenced. Ultimately, whether an employee agrees to sign an NDA depends on their goals. If an employee wants to bring more attention to issues of harassment in the workplace, they could refuse to agree to an NDA. However, refusing to sign an NDA is typically a “deal-breaker” for employers in reaching a settlement, so can interfere with obtaining compensation through a mutually agreeable resolution.

What is the Consequence of Breaching an NDA?

The consequences of breaching an NDA or confidentiality clause depend on the language of the agreement and the effect of the breach. Some NDAs are silent on the consequences of a breach, but can none the less form the basis of a court action against the party in breach. Other NDAs may specifically contemplate the return of settlement funds if the obligations are breach. Several years ago, former Globe and Mail writer Jan Wong was ordered to repay settlement funds after she breached a confidentiality clause with the newspaper.

Therefore, it is extremely important that you get legal advice before signing an NDA or any document containing a confidentiality provision. It is important that you contact our team in either Toronto, Vancouver, Ottawa, or Calgary to discover what your workplace rights are, and how the employment lawyers at Samfiru Tumarkin LLP can help you enforce them before signing.