Two Nova Scotia-based universities have become the first Canadian postsecondary institutions to sign on to the “Can’t Buy My Silence” campaign, which aims to eradicate the use of non-disclosure agreements (NDAs) in cases involving sexual harassment, abuse, or other forms of misconduct or bullying.
Acadia University and the University of King’s College made the joint announcement on Dec. 7, 2023.
“We’ve been through an experience recently of having established an independent review for allegations of sexual assault against a retired professor,” said William Lahey, president and vice-chancellor at the University of King’s College, referring to the case of professor Wayne Hankey, who faced charges of sexual assault, gross indecency and indecent assault involving three male complainants dating back to the 1970’s and 1980’s. Hankey died on Feb. 5, 2022, a month before the first trial was scheduled to begin.
“Part of that story is the way in which a previous complaint against that professor in the early 1990s was dealt with in a way that was surrounded by secrecy, which allowed a false narrative about the true nature of that individual’s wrongdoing to be perpetuated over more than three decades,” said Lahey. “We have no desire to ever do that in the future, and therefore we thought the right thing to do was to, in a sense, codify our now-existing practice by signing onto this pledge.”
The “Can’t Buy My Silence” campaign was co-founded in 2021 by Zelda Perkins, the first person to break her non-disclosure agreement with convicted sex offender Harvey Weinstein in 2017 and Julie Macfarlane, a law professor emerita at the University of Windsor who resigned in protest when she discovered the university had allowed a colleague with a history of sexual predation to move to another employer with help of an NDA.
The campaign argues that NDAs are now commonly used to allow perpetrators to move on unscathed, and that victims of bullying or harassment are often silenced using NDAs, even though the agreements were initially created as tools to protect corporate trade secrets.
“Universities have been frequent users of NDAs,” said Ms. Macfarlane. “We know how often students – especially graduate students working closely with faculty – are bullied or harassed … We consider all students everywhere to be deserving of this protection.”
Acadia signed on after a small team that included Allison Smith, the university’s sexualized violence response and education coordinator, and student Elisabeth Dobson brought a proposal to president and vice-chancellor, Jeff Hennessy, who then took it to the board of governors.
“The fact that this young student, Elisabeth Dobson, wrote an article in their student paper and had the hope that our administration would adopt this pledge, I think that that was very compelling to the administration,” said Ms. Smith.
Ms. Dobson, an undergraduate student in her final semester of business administration at Acadia said, “I think it’s an awesome precedent for other schools in Nova Scotia and across Canada, because it’s such an important thing for sexual violence and equity policies to be policies and not just statements. Actionable policy creates change, in my opinion, and I’m glad to see that Acadia took those steps.”
Jordan Roberts, sexual health and safety officer at King’s, said the initiative will help reduce the barriers to disclosure. “The more that we can say to people, ‘We’re not going to limit how you share your experience; we’re not going to limit how you talk about what’s happened to you,’ …it is providing a transparency that can help people reduce those barriers in their considerations of coming forward.”
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Public awareness of the scourge of NDAs has increased recently. But not as much attention has been given to the practice of routinely dispersing public funds in the form of buyouts or settlements as a means of handling a work performance or interpersonal issue.
I’ve heard enough stories from former employees of the university sector in recent years to know that circumstances for buyouts differ widely. Those related to workplace abuse or legitimate cases of redundancy are one thing. Other cases seem to fall into a more nebulous category: when a supervisor believes someone is incompetent but hasn’t followed HR protocol to provide warnings to the employee and/or to offer coaching; when a new-boss-same-as-the-old-boss is out to make room for his own loyalists; or when an institution wants to avoid publicity and culpability for hiring an incompetent or corrupt employee.
Wanting more light shone on the subject, I submitted a request for information from Queen’s University under Ontario’s Freedom of Information and Protection of Privacy law. I asked how much Queen’s has spent over the past ten years on settlements and buyouts. I wasn’t seeking any personal or identifying information, only information in the form of financial summaries and statistics.
After twice asking for deadline extensions to prepare a response to our request for information, Queen’s Privacy Office in December provided some limited data: According to files they could locate, the university spent about $3 million on 24 cases related to settlements involving sexual assault, harassment, or bullying in the past ten years. But, the privacy office informed us, the university had no tally of how much money has gone into other more common types of buyouts. Such a search is beyond Queen’s current capacity, the privacy office informed me earlier this month, and the FIPPA legislation does not require the university to “create a record that does not exist.”
I was surprised to learn that Queen’s doesn’t track how much money it has spent or continues to spend annually on buy outs and settlements. Perhaps they think the financial outlay isn’t significant enough to warrant the attention of senior administration or governing trustees as a budget line item or personnel management indicator.
Buyouts by corporations and institutions are nothing new, and certainly not restricted to Queen’s. Some see employment termination settlements as the price of doing business. But surely, when public funds are involved, taxpayers should expect a degree of accountability. How many staff and faculty depart Queen’s through a type of buy-out? And what is the cumulative financial impact of buy-out settlements on publicly funded institutions obliged to count every penny?
I hope any employee who loses a job through no fault of their own is fairly and generously compensated as required by law. As a taxpayer, I would also like to know that buyouts and NDAs aren’t a substitute for sound workforce management practices, a means of concealing unprofessional or abusive behaviour or just another tool for managing egos.
If Queen‘s and other public institutions are using buyouts and NDAs for managerial rather than proprietary purposes, and can’t live up to assertions of transparency, will taxpayers ever really know what employment mysteries lurk within these public corporations?
Anne Kershaw is a national award-winning Kingston writer and former reporter and editor for Kingston’s Whig-Standard.