The province has yet to announce legislative changes or protections related to the topic. Prince Edward Island is the only province to have a law limiting NDAs in such cases. That province’s Non-Disclosure Agreements Act was passed on Nov. 17, 2021.
A recent report by Statistics Canada shows that workplace harassment, including sexual assault, is experienced by 31 per cent of men and 47 per cent of women in Canada.
In order to gain some perspective on the topic, we spoke with Dan Balkaran, partner and B.C. employment law practice lead at Samfiru Tumarkin LLP, who is not associated with Hwang’s case.
According to Balkaran, an NDA is simply a contract or binding agreement.
The presence of an NDA, he notes, is made slightly more complicated given the fact that it typically involves “silence in exchange for money.”
“If there was money exchanged for silence, then the agreement is valid, enforceable, subject to what’s in the four corners of the document,” Balkaran said.
In general, an NDA is a voluntary process where a signee is getting something in exchange for their agreement to sign.
“An NDA is usually sort of invoked when there’s some type of settlement,” Balkaran says, adding there can be cases in “emotionally fraught situations,” where someone chooses to sign because of pressures of time or aggressive bargaining.
“There’s no requirement to sign an NDA. It is a bargain that the two sides reach. And the bargain is money for silence, generally speaking,” he says. “Now, in...
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