Limits NDAs in Federal Harassment Cases

Summary#

The Can’t Buy Silence Act (Bill S-261) limits when federal bodies can use non-disclosure agreements (NDAs) in harassment, violence, and discrimination cases. It also stops the use of public money to enforce NDAs against complainants, and requires public reporting on the use of NDAs. Non-government recipients of federal grants and contributions must report their NDA use. The Act takes effect 60 days after royal assent and will be reviewed every two years (Bill: Coming into Force; Parliamentary Review).

• Federal departments and Crown corporations may only use an NDA if the complainant asks for it in writing after having a chance to get independent legal advice (Bill: Restriction — non-disclosure agreements (1), Clause 5).
• Public money may not be used to litigate NDAs against complainants (Bill: Restriction — public money (3), Clause 5; Parliament of Canada Act amendments, Clauses 7–10).
• Grants and contributions must be managed to prevent using public funds to pay settlements that include NDAs, or to litigate NDAs against complainants (Bill: Restrictions — grants and contributions (1), Clause added after FAA s.25).
• The President of the Treasury Board must publish, each year, the number of NDAs and the total dollar amount of agreements containing NDAs across the federal public sector, plus similar data from grant recipients (Bill: Annual Report — Public Sector (1)-(2)).
• NDAs cannot block certain disclosures, including communications with law enforcement, lawyers, health providers, counsellors, victim services, or friends/family, and some non-identifying artistic expression (Bill: Permitted disclosures (2), Clause 5; parallel clauses for parliamentary entities).
• Data must be anonymized; privilege is waived only to provide the required information for the report (Bill: Anonymous data (4); Privilege (5); Certainty (6)).

What it means for you#

• Households and complainants

  • If you allege harassment, violence, or discrimination in a federal workplace, an NDA can only be used if you ask for it in writing after a chance to get independent legal advice, including advice on other ways to protect your privacy (Bill: Restriction — non-disclosure agreements (1), Clause 5).
  • Even if you sign an NDA, you may still talk to law enforcement, a lawyer, a culturally specific counsellor, health providers, a social worker, victim services, and friends or family. You may also engage in artistic expression that does not identify the other party or the NDA terms (Bill: Permitted disclosures (2), Clause 5).
  • The government cannot use public money to enforce an NDA against you (Bill: Restriction — public money (3), Clause 5; Parliament of Canada Act amendments, Clauses 7–10).

• Federal workers and managers

  • Your organization may not enter an NDA in these cases unless the complainant requests it after legal advice. Standard NDAs are no longer allowed by default (Bill: Restriction — non-disclosure agreements (1), Clause 5).
  • Your entity will be included in an annual public report showing the number of NDAs and total dollar amount of agreements containing NDAs, in anonymized form (Bill: Annual Report — Public Sector (1), (4)).

• Non-government recipients of federal grants or contributions (e.g., municipalities, universities, NGOs, businesses)

  • You must include in grant or contribution agreements a clause to report each year to the President of the Treasury Board: the number of NDAs and the total dollar amount of agreements containing NDAs (Bill: Report to President of Treasury Board (2), Clause added after FAA s.25).
  • You must prevent the use of federal funds to pay settlements that include an NDA, or to litigate NDAs against complainants. This applies to the public funds portion (Bill: Restrictions — grants and contributions (1)(a)-(b), Clause added after FAA s.25).
  • The required data must be anonymized (Bill: Anonymous data (3), Clause added after FAA s.25).

• Parliament-related entities (Senate, House of Commons, Library of Parliament, Parliamentary Protective Service)

  • The same limits apply: NDAs only at the complainant’s written request after legal advice; no public money to litigate NDAs against complainants; specified disclosures remain allowed (Bill: Parliament of Canada Act amendments, Clauses 7–10).

• General public

  • You will see an annual, anonymized report on the use of NDAs in the federal public sector and among recipients of federal grants and contributions. The report is due within 45 days after each fiscal year ends, starting the first year after royal assent (Bill: Annual Report — Public Sector (1)-(2)).

• Timing

  • The Act takes effect 60 days after royal assent. The first annual report covers the first full fiscal year after that date (Bill: Coming into Force; Annual Report — Public Sector (1)).

Expenses#

• Estimated net cost: Data unavailable.

• Key points

  • No direct appropriations are stated in the bill (Data based on bill text).
  • New administrative duties include annual reporting by the President of the Treasury Board and data collection/reporting by federal grant and contribution recipients (Bill: Annual Report — Public Sector (1)-(2); Report to President of Treasury Board (2)).
  • The bill restricts certain uses of public money but does not set out new revenue sources or fees (Bill: Restrictions — grants and contributions (1); Restriction — public money (3)).
  • No publicly available fiscal note.

Proponents' View#

• It stops misuse of public money to silence complainants. Public funds cannot pay settlements that include NDAs, and cannot be used to enforce NDAs against complainants (Bill: Restrictions — grants and contributions (1)(a)-(b); Restriction — public money (3)).
• It centers complainant choice. An NDA is allowed only if the complainant requests it after independent legal advice, including advice on other privacy tools (Bill: Restriction — non-disclosure agreements (1)).
• It increases transparency. Annual public reporting of the number of NDAs and total dollar amounts helps track trends across the federal public sector and funded entities (Bill: Annual Report — Public Sector (1)-(2)).
• It protects privacy. All reported data must be anonymized, and privilege is waived only for providing the required information (Bill: Anonymous data (4); Privilege (5); Certainty (6)).
• It preserves access to support and justice. Even with an NDA, communications with authorities, legal counsel, health providers, counsellors, and close supporters remain permitted, as does non-identifying artistic expression (Bill: Permitted disclosures (2)).
• It builds in oversight. Parliament must review the Act every two years (Bill: Parliamentary Review).

Opponents' View#

• It may reduce flexibility to settle cases. Because settlements that include NDAs cannot use public funds, parties may face fewer options or longer timelines to reach agreement. This assumes NDAs are often key to settlement speed (Bill: Restrictions — grants and contributions (1)(a); assumption noted).
• It imposes new reporting tasks on many grant recipients, including small NGOs and municipalities. Administrative costs are possible; Data unavailable on scale (Bill: Report to President of Treasury Board (2)).
• The waiver to provide information despite solicitor-client or parliamentary privilege could face legal challenges or create disclosure risks, even though the waiver is limited to reporting (Bill: Privilege (5); Certainty (6)).
• Even when a complainant requests an NDA, the broad list of permitted disclosures may weaken confidentiality and deter settlement. This assumes parties place high value on strict confidentiality (Bill: Permitted disclosures (2); assumption noted).
• The bill sets restrictions but does not specify penalties or detailed enforcement mechanisms for non-compliance by recipients, which could limit effectiveness. Data unavailable (Bill: Restrictions — grants and contributions (1)-(2)).