Manitoba Law Reform Commission comes out against NDA legislation

On June 29th, the Manitoba Law Reform Commission issued its final report on its study of the use of non-disclosure agreements in the settlement of misconduct claims. The Commission “strongly recommended” that legislation governing the the content and use of NDAs in claims of misconduct should not be enacted in Manitoba at this time because such legislation “could cause serious, unintended consequences and negatively impact complainants.”

The Commission is established under a Manitoba statute to “inquire into and consider any matter relating to law in Manitoba with a view to making recommendations for the improvement, modernization and reform of law.” The Commission is currently comprised of two judges, two law professors and three practitioners, five of whom are female. It reached its conclusion after issuing a consultation paper last year and engaging in public consultation.

The Commission acknowledged that the issue is complex and subject to divergent views. It concluded that the model of legislation first implemented in Prince Edward Island and now reflected in numerous Canadian bills amounts to a virtual prohibition on the use of NDAs. The Prince Edward Island Non Disclosure Agreements Act, for example, deems an NDA to be unenforceable if it adversely affects the health and safety of a third-party or the public interest, a provision a reform advocate argued to the Commission rendered all NDAs unenforceable. Likewise, the Commission concluded that a requirement that permits survivors to walk away from a previously agreed to undertaking of confidentiality would preclude the use of NDAs altogether.

This effective ban, according to the Commission, goes too far given NDAs can serve the public interest and the interests of survivors. It underscored its position by presenting a lengthy quote from a childhood sexual abuse survivor, a quote also worthy of including here in full:

Given my past, I tend to focus first on the victim, on what’s best for the victim. That focus is so absolute that the only possible submission I could make here is that NDAs in these circumstances must be eliminated, right?

Wrong.

Because even though I live daily with my experience as a victim of the worst serial sexual abuse imaginable, I can’t shut down the other part of me that knows that I benefitted from an arrangement that involved an NDA that may not have been possible had there been a law preventing an NDA in my circumstances.

In short, there is no right answer, for as strong as all of the reasons why NDAs can be harmful and dangerous for victims are, things just might end up even worse for victims if NDAs are not allowed in these circumstances.

My submission would undoubtedly be different if we lived in a world where as much money and other resources is dedicated to rehabilitating victims as is made available for incarcerating and attempting to rehabilitate those who commit the crimes against these victims. But we don’t live in that world. Things are getting better, but we still don’t focus enough on making sure victims are rehabilitated. That can leave a victim desperate for whatever help and support he or she can get, financial or otherwise.

Unfortunately, NDAs are one side of a commercial transaction. It’s ugly to think of them that way, but that’s what is most often taking place. Silence is being traded for money. It’s awful, it’s disgusting. But it’s the reality. And, it’s an undeniable fact that without an NDA and the corresponding secrecy parties would have less incentive to enter into agreements with victims.

As bad as being constrained by an NDA might be, it isn’t for me to ever say that a victim would be better off being free from that burden if it meant having to give up a financial settlement that could possibly provide life-sustaining support. The unfortunate reality is that there would be fewer settlements available for victims if NDAs were not permitted in these instances.

I know what I want to write. I know what people want to hear from a victim like me. I want to be able to write that NDAs in these circumstances are reprehensible and should be precluded. And they are reprehensible. But just because they are reprehensible doesn’t mean that the alternative wouldn’t be worse. Eliminating NDAs would skew incentives in a way that would likely have an even worse impact on victims. And, I don’t think there is any meaningful way to legislate a way out of this basic conundrum.

We want to do good things, we want to better our world. We are angry that bad things happen to good people, that bad people get away with bad things. We want to change that. We are motivated for all of the right reasons. So we try to do something, anything, to try to make things better. NDAs seem bad, they feel bad, so they must be bad, we must enact a new law precluding them or limiting them.

But NDAs can facilitate what a victim needs. NDAs, as abhorrent as they may be, actually develop out of a process that tries to make things better for the victim. So I urge caution before any steps are taken that would potentially interfere with this unpalatable yet important part of our legal system involving victims.

Currently, aside from PEI, Ontario has enacted legislation meant to protect students at post-secondary educational instructions. There is now a broader private members bill at first reading in Ontario and bills before the legislatures British Columbia and Nova Scotia and before Federal Parliament. The Commission’s report is important because it features a view that is not popular and very difficult to convey, though it also raises a critical concern about the clear legislative trend.

Arbitrator orders $3,000 in privacy damages

On April 27th, Arbitrator Knopf ordered that $3,000 in damages be paid to a grievor for breach of privacy and harassment because:

the grievor’s personnel file contained an inexplicable notation that the grievor advised his supervisor that he injured his penis while cooking nude at home; and
the employer contacted the grievor’s doctor to confirm the doctor’s signature without justification and without consent.

Ms. Knopf said that these claims were “serious enough to warrant damages, buy they were not profoundly damaging to [the grievor’s] reputation or harmful to his privacy, nor did they have a negative impact on his benefit claims, status in the workplace or reputation in general.”

York (Regional Municipality) v Canadian Union of Public Employees, Local 905, 2017 CanLII 56454 (ON LA).

Arbitrator awards privacy damages for implying an employee suffered from mental distress

On December 4th, Arbitrator Andrew Sims ordered the Edmonton Police Service to pay a grievor $5,000 in damages for breach of privacy.

The case arises out of the Service’s handling of an intense interpersonal conflict between the grievor, a police detective, and his staff sergeant. The conflict led to a formal review in which the reviewing investigator recommended the grievor’s transfer to a new unit due to interpersonal problems, the responsibility for which was borne by the grievor and others. Before the Service addressed the recommendation, however, the grievor and his staff sergeant had an altercation.

The altercation invited an immediate decision to pursue the recommended transfer. Although the formal review had raised no concerns about the grievor’s mental health, when a superintendent met with the grievor to advise him of the transfer she became concerned about his mental health on account of his reaction.

The superintendent raised the need for a psychological assessment, which the grievor undertook grudgingly but voluntarily. While this assessment was pending the superintendent met with the department and implied that the grievor was mentally unwell, in essence conveying the same opinion that was the basis for the pending assessment. In the end, a psychologist determined the grievor was “psychologically intact and functional.”

Based on the following analysis, Arbitrator Sims ordered the Service to pay $5,000 in damages:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information. To anticipate a diagnosis, based only on personal observations, however genuine the concerns,and to discuss that in public, is just as serious a breach of privacy. Arrangements were underway to get the grievor assessed. Implying anything as to his state of health pending that assessment was inappropriate and unnecessary. The decision was made to transfer the grievor based on the problems he was having with his Staff Sergeant and the Unit Review. This was decided before the health concerns arose from the interview. Given that, there was really no need to go into whether the grievor had health issues at all. The emphasis on the grievors “H.R. issues” had the effect of adding undue emphasis to the suggestion that the broader issues in the unit, which were serious in themselves, were due to the grievor’s health issues. That too was unjustified given the more balanced assessment in the unit review itself. The grievor’s reputation amongst his peers, his need and ability to interact with them in future, and his sense of employment security were all impacted by the excessive commentary during this meeting. While I accept that the comments were made out of genuine (although to a significant degree unfounded) concern, they amounted to a breach of privacy and caused harm to the grievor’s privacy interests. Police officers are particularly dependent upon their reputation amongst their peers. Any suggestion of mental problems or unreliability can seriously hurt their working relationships and their careers. I find these breaches of privacy sufficiently serious to justify financial compensation which, based on a review of the authorities discussed above, I award at $5,000.

Edmonton Police Service v Edmonton Police Association, 2014 CanLII 73072 (AB GAA).

Complaint challenging timidity of employer response to attack blog dismissed

On January 22nd, the Ontario Grievance Settlement Board dismissed a group complaint alleging that an employer failed to respond appropriately to a union blog that attacked members of management.

Vice-Chair O’Neil heard the complaint. The following is her description of the content of the blog:

The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

Some, but not all of the blog’s authors were identifiable. Nonetheless, the employer chose to take a measured approach to dealing with the blog and did not discipline any perpetrators. Instead, it authored a joint memo with the local union president that encouraged respectful conduct and issued its own warning letter to those responsible for the blog. The blog then became password-protected, which members of the targeted management group did not feel was an adequate resolution. They complained.

In dismissing the complaint, Vice-Chair O’Neil said the following about an employer’s duty to respond to workplace harassment:

In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

Vice-Chair O’Neil held that the employer did not fail to meet any specific requirement of the applicable policy and otherwise acted within its discretion.

Lee v Ontario (Ministry of CommunitySafety and Correctional Services), [2013] O.P.S.G.B.A. No. 1 (G.S.B.).