For several years now, advocates in the legal profession have been calling for the B.C. government to create new rules restricting the use of non-disclosure agreements in cases of sexual assaults, harassment or abuse.
In 2024, the Canadian Bar Association’s B.C. Division sent Attorney General Niki Sharma a letter urging changes.
Sharma responded at the time, saying that B.C. is monitoring other jurisdictions while participating in a working group on the subject, “all in the aid of determining if any legislative changes should be made in British Columbia.” She said non-disclosure agreements (NDAs) “can serve a role” when used appropriately, but agreed their misuse to silence survivors is wrong.
But the B.C. government withdrew from that Uniform Law Conference of Canada working group.
And then a highly publicized incident involving allegations of sexual assault against a Vancouver Symphony Orchestra employee propelled the issue into the spotlight when the accuser broke an NDA to speak out publicly, forcing the organization to back down in the face of public outrage.
Still, the government says it is working on the best way to stop this type of abuse of non-disclosure agreements.
“We are actively engaging with survivors, the organizations supporting them, legal experts, and Indigenous partners to do that,” the Ministry of Attorney General said in a Tuesday statement. “We expect to be able to share an update on this work in fall 2026.”
B.C.’s Community Legal Assistance Society wants action now and issued a new report on Monday that uses case studies and lawyer surveys to illustrate the need for new rules to stop what the organization sees as the growing use of these documents to protect perpetrators.
The report finds that restricting NDA use in these types of cases is key to reducing gender-based violence in the workplace.
“This is a no-cost change,” said Jennifer Khor, a supervising lawyer at the society and the project manager for the report. She also chairs the working group.
Khor’s organization provides free legal advice to anyone who has experienced sexual harassment and helps draft demand letters. In recent years, she has seen an increase in people reporting they’ve been asked to sign an NDA when trying to negotiate a settlement, or that they signed one that is now negatively impacting them.
Some of these are very restrictive, preventing people from sharing their experience with anyone, even therapists.
“They can’t tell their family member or close friend, or they can’t seek counselling, depending on how the NDA is worded, or they can’t explain a gap in their employment with new employers,” Khor said.
She thinks the use, or in her perspective, the misuse, of NDAs is on the rise because of social media and the efforts of companies and those in powerful positions to prevent people from spreading negative information.
“The purpose is definitely often to protect their reputation and the reputation of the person who did the harassment, the perpetrator,” Khor said. “Who usually is someone in a position of power and more senior.”
Many people are pressured to sign these NDAs for an investigation to even begin, according to Khor’s report. In the orchestra case, the victim signed, then began to lose playing time, eventually ending up with none. Rumours swirled that she and the alleged perpetrator were both fired because of a consensual relationship.
In another case study from a different organization, a woman signed only to have a human resources employee dismiss her complaint. She resigned, but couldn’t explain to prospective employers why, and had to take a more junior position elsewhere.
After she left, she said a former colleague told her she was now being harassed, but decided not to complain after what had happened before.
Khor’s organization is part of an international effort to convince governments to restrict NDAs from being used in harassment, abuse and discrimination cases. Spearheading this effort is the advocacy group Can’t Buy My Silence, which says legislation is being passed around the world, and that Canada must catch up.
So far, the only jurisdiction in Canada that has developed broad NDA restrictions is Prince Edward Island, which passed legislation in 2022 to make NDAs enforceable only when they do not adversely affect the “health or safety of a third party” or the “public interest.”
NDAs are not only used in human resource complaints. Many businesses, organizations and governments also use them for purposes ranging from protecting trade secrets to targeted government consultations.
The B.C. government uses these extensively to consult with First Nations and other stakeholders on legislative and regulatory changes, such as recently proposed changes to the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
While Khor is primarily concerned with cases involving harm to an individual, she does not think these uses are appropriate in a democratic society that practices free speech.
When the B.C. government was a member of the working group, it endorsed recommendations that included restricting all pre-emptive NDAs to the “purposes of protecting trade secrets, intellectual property, and other similar confidential business information.”
The Ministry of Attorney General says officials “valued the opportunity” to contribute to the working group, but are now “focusing on the next phase” to stop NDA abuse.
Khor said she was told the government “had other priorities.”