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TRU investigation: Waiving NDAs a victory for complainants

The board’s decision to waive NDAs means their existence could be disclosed and the allegations could be discussed

Thompson Rivers University law professor Charis Kamphuis said she is aware of more than one non-disparagement agreement connected to one of the complainants.

The law professor explained such agreements are typically used by the private sector to protect company trade secrets when employees leave to go to competitor organizations.

However, Kamphuis noted, NDAs are problematic in holding people to account because they intimidate individuals and prevent them from speaking out about what happened.

University of Windsor law professor Julie Macfarlane has launched a campaign called “Can’t buy my silence” to ban NDAs in the context of discrimination and harassment allegations and legislation has been tabled in Prince Edward Island to prohibit or limit agreements in that context.

The goal is to put forward similar legislation in every province in Canada. 

NDAs have been criticized amidst the #MeToo movement since stories broke about disgraced film mogul Harvey Weinstein, who had for years been rumoured to be abusing women trying to make it in Hollywood and used NDAs as a tool behind which to hide.

Since the allegations came to light, via reporting in the New York Times and the New Yorker, including through the breaking of NDAs, Weinstein has been convicted of rape and is in prison.

Kamphuis called NDAs a “problematic legal device” — even more so when it comes to public institutions. 

“It’s student tuition and taxpayer money that is being used to finance these agreements,” Kamphuis said.

“In my view, the fact that we know that this practice has occurred at TRU raises a very serious duty on the board of governors to review the practice and to enact a policy to prohibit it.”

One major victory for the complainants in the TRU investigation was the board’s decision to waive NDAs, which meant their existence could be disclosed and the allegations could be discussed.

Without that waiver, those individuals would not have been able to participate in the investigation.

Nine months after the first complaint was lodged, however, Kamphuis said she wonders how many others have since been silenced and what potential harm has been done to those who continue to work at TRU.