Could the UPEI harassment report help make NDAS a thing of the past?

Swearing people to secrecy ended up putting the University of Prince Edward Island in an unpleasant spotlight this week. 

There's an argument that if senior staff had handled harassment complaints more openly over the past decade, a wide-ranging review of the campus's problems and policies wouldn't have been commissioned.

An 18-month-long investigation wouldn't have been necessary, and an independent consultant wouldn't have issued a scathing report about harassment, discrimination and a toxic work environment at Prince Edward Island's only university.   

Certainly the province's premier wouldn't have been telling the legislature that he would now hesitate to advise his own children to attend UPEI. 

And it all started with non-disclosure agreements, or NDAs.

'Buying survivors' silence'

According to the Rubin Thomlinson report issued Wednesday, UPEI has long used NDAs to silence people who came forward with human rights complaints — and not just those who alleged sexual harassment by the former president, Alaa Abd-El-Aziz. 

UPEI entered into 29 non-disclosure agreements between 2011 and 2021, when the report was commissioned. Most involved an employee who was being dismissed, but at least six cases involved a human rights complaint, or a complaint under the university's fair treatment policy.

In at least some of the cases, the complainants agreed to withdraw their human rights complaints, apparently in exchange for payment from the university, and sign non-disclosure agreements in which they pledged not to talk about what had happened.  

"It is entirely inappropriate for anyone, and in particular, an institution of higher learning, to insist upon the use of an NDA in relation to the facts underlying a claim of harassment, discrimination, or sexual violence…," the Rubin Thomlinson report said. 

"The institution, in making a settlement, is compensating the individual for the harm they have suffered. It should not be buying survivors' silence."

No new NDAs, says university

In response to questions from CBC News, interim UPEI president Greg Keefe sent an email Friday afternoon. 

"There have been no NDAs signed between the university and any individuals regarding personnel matters since I began my term, and we have confirmed that our policies are in line with provincial legislation on the matter," said Keefe, the former dean of the UPEI-affiliated Atlantic Veterinary College, who took over from Abd-El-Aziz in mid-December of 2021.  

As for the review process, he said: "The university took all steps within its control to allow anyone who had signed an NDA with UPEI to participate fully in the Rubin Thomlinson review, including the complainants of a 2013 Human Rights Commission case involving the former president. 

"Individuals with whom the university had a non-disclosure agreement were released from the terms of their agreement for the purposes of participating in the review process. The only case where a release agreement could not be secured involved three parties: the complainants from 2013, the university, and the former president. The former president did not agree to the release." 

Keefe's email said the university offered to indemnify the two 2013 complainants against liability if they were sued for talking to Rubin Thomlinson, but the women eventually decided not to participate.  

'This is just plainly wrong'

Julie Macfarlane is co-founder of Can't Buy My Silence, an international campaign to end the use of non-disclosure agreements in cases of sexual violence, abuse and harassment. 

The professor emerita at the University of Windsor says the report into UPEI includes the strongest condemnation yet against the use of NDAs for those purposes on campuses in Canada.

"An awful lot of people's lives have been really messed up over the things that we are reading about in this report," she said in an interview with CBC News on Friday. 

"I am thrilled that there is a recognition of reality here." 

Of NDAs, Macfarlane said they can be appropriate for protecting trade secrets or other commercial information in cases where people are leaving jobs for new ones. Harassment, discrimination and bullying complaints are very different, she said.

"We've had this myth that they are appropriate ways to protect people, particularly victims, who are involved in these unpleasant incidents. But what this report really lays bare is that the only purpose of the NDA — and this is said right in the report — is to protect the perpetrator and the institution … This is just plainly wrong."

Macfarlane said she is concerned that "extremely brave" people with NDAs who were allowed to speak to investigators for the purposes of the report are now once again vulnerable to a lawsuit for speaking to anyone about their experience.  

That's because now that the investigation is over, those people return to being bound, under threat of a lawsuit, to maintain their silence.

"They come forward, they talk about all these upsetting events again, and then they are told they have to be silent again forever," she said. 

"These aren't people who are going to be going for maximum publicity. They just want to talk to their family and friends and have this burden lifted." 

Continued risk? 

At least two of the UPEI non-disclosure agreements involved complaints not against Abd-El-Aziz but a different staff person, not named in the Rubin Thomlinson report. The allegations involved "concerning behaviour of assault and threats by the respondent towards them."

One of the complainants who was given clearance by the university to talk to investigators raised concerns that the use of NDAs in this case would prevent the complaints from entering the employee's personnel file, saying there was a "pattern of misconduct with this respondent" that would be hidden, leaving other individuals at risk.

Political prodding

P.E.I.'s Green Party says the province's Progressive Conservative government could step in to change that.

"We're still not guaranteed a safe learning environment when we've still got people who are committing these abuses and assaults and harassment, and it's allowed to be silenced and swept under the rug," said Green MLA Karla Bernard.

A year ago, P.E.I. became the first province in Canada to enact legislation restricting the use of NDAs in cases of harassment and discrimination, thanks to the adoption of a private member's bill put forward by then-MLA Lynne Lund.  

That law wasn't made retroactive, though, so earlier non-disclosure agreements like the ones at UPEI remain in force.

The Greens say the Dennis King government could have brought in regulations to allow everyone who signed NDAs to take part in the UPEI review without fear of legal reprisal. But in the absence of that measure, some people who would have been key witnesses couldn't take part.

The party wants King to do that now, saying it's not too late to try to hear from all the relevant voices.

Otherwise, they say, the UPEI report provides an incomplete picture of the harm that's been done to people on the campus over the past decade.