Will new NDA law break the silence on campus harassment?

When the Non-Disclosure Agreement Act (NDAA) takes effect in June, Prince Edward Island (PEI) will become Canada’s first province to set limits on the use of Non-Disclosure Agreements (NDAs), including at the University of Prince Edward Island (UPEI), which has been accused by one present and one former professor of using NDAs to shield harassers and protect the university’s reputation.

On 15 December 2021, when Member of the Legislative Assembly Lynne Lund’s private member’s bill, Bill 118, came up for a vote, she did not know whether she had convinced enough of the province’s governing Progressive Conservatives to join with the opposition Green Party for the bill to become law.

“I believe that if I was hearing stories, it would not come as a great shock that other people [that is, legislators] were hearing the same stories. Ultimately, there’s no good reason to side with predators,” she says about the fact that Bill 118 received unanimous consent.

Both Lund and David Robinson, executive director of the Canadian Association of University Teachers, told University World News that the number of NDAs used by Canadian universities is unknown.

“We don’t know how widespread NDAs are in the university and college sector because you don’t know what you don’t know. Because they are secret, we don’t know about them,” says Robinson.

Lund’s draft legislation included reporting requirements. After push-back from the government about the creation of a registry and criticism that there was no way to force people to self-report, which meant that whatever data was collected would be unreliable, she dropped the idea from the bill.

Between 2009 and 2018, while she taught at UPEI, Professor Kate Tilleczek, who held a Canada Research Chair or CRC (and now holds a new Tier 1 CRC in Young Lives, Education & Global Good and is a Professor at York University in Toronto), was aware of three NDAs involving the sexual harassment of women on campus.

She is also aware of other NDAs signed by staff who suddenly left the university.

UPEI’s Fair Treatment (internal investigative) process, allows the complainants to choose one person he or she can talk about the case with but then drops a curtain of silence over the investigation (that resembles that drawn by NDAs). One of Tilleczek’s graduate students and two of Tilleczek’s colleagues chose her. In no case did she learn the full details of the complaint.

“I stood by these women as a support person who believed them. I knew they signed NDAs, but I did not read them. And they had to be extremely careful in what they were able to share with me.

“I still don’t know the details of what happened to these women other than that they were harassed, suffered an indignity and had to leave their jobs and ultimately the province. The process of living under these NDAs seemed to be another form of harassment itself for these women.”

Nor does Tilleczek know what the NDAs stipulated. If, for example, there was a financial settlement, that information is also locked away within the NDA itself. One of the lawyers I spoke to about NDAs told me, on the condition of anonymity, that if the parties want it to be so, NDAs can be perpetual, though such clauses, too, remain secret.

Most known NDA

The Canadian university NDA about which the most is known was signed by a professor who taught at University of Windsor (UW) law school. In late 2013, he was accused of intimidating and harassing a number of students and building a cult of favouritism.

A number of students and five faculty members, including Julie Macfarlane, Distinguished University Professor and professor of law at the UW, met with the university’s administration about the professor, whom UWN refers to in this article as ‘Professor X’.

After a year-long investigation, UW terminated his employment for “misconduct including sexual harassment,” wrote Macfarlane in “How a Good Idea Became a Bad Idea: Universities and the use of non-disclosure agreements in termination for sexual misconduct” published in the Cardoza Journal of Conflict Resolution in 2020.

Rather than fight the grievance that Professor X brought to challenge his dismissal, which would likely have involved having the students testify (thus forcing them to relive the trauma of the harassment), the university offered him a settlement, which included an NDA, which kept the reasons for his leaving UW secret and the university agreed to remove all complaints from his file.

Among those who study such NDAs, this process, which recalls both the Catholic and Anglican churches’ practice of moving priests accused of sexual assault from parish to parish, is sometimes described as ‘pass-the-trash’.

All this would have stayed secret but for the fact that one of the two universities at which Professor X applied to teach contacted Macfarlane.

“I have as much moral responsibility to warn people at another university,” she says “about someone who is, I know from firsthand experience, dangerous to students as I would if they were my own students.”

Accordingly, Macfarlane told the first school what she knew about the circumstance that precipitated Professor X’s departure from the UW. Later, she found out that the second school Professor X applied to teach at contacted the UW administration but had not heard back from them and went ahead with hiring him to teach at the University of the West Indies.

In February 2019, Macfarlane was served with legal papers saying she was being sued for defamation in Trinidad, where Professor X lived.

UW refused to provide Macfarlane with a copy of Professor X’s termination letter. In the absence of this letter, she could not use the argument of “absolute defence of truth” against the defamation charge.

Nor did UW’s insurer agree to pay for Macfarlane’s defence, claiming, that she was not “acting in the course of [her] employment”, which prompted the law professor to sue Canadian Universities Reciprocal Insurance Exchange (CURIE), the consortium that insures all Canadian universities.

In July 2019, Justice Jessica Kimmel of the Ontario Superior Court ruled in Macfarlane’s favour – and, in doing so, created one of the first significant pieces of case law limiting NDAs in Canada.

The decision took note of several American state courts’ rulings, including a 1999 California case. In it, the court voided an NDA because, as Macfarlane wrote in her article, “the writer of a letter of recommendation owes to the third persons a duty to not misrepresent the facts in describing the qualifications and character of a former employee”.

The court declared: “All persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct.”

Turning specifically to Macfarlane’s suit, Kimmel disagreed with CURIE’s assertion that the law professor could be indemnified only if she was acting under direction of the university and, further, could not be indemnified because she was “taking a position critical” of (ie, different from) her employer.

UW may have an official position, the judge said, but “that does not mean that others within the institution no longer speak on its behalf just because they have a different view or perspective. ‘Acting on behalf’ does not require that the specific act be authorised, instructed, permitted or approved by the UW.”

Kimmel went further, declaring: “A university is not an institution with a single voice or single set of interests – the interests of a university will be broad and diverse and may even be in conflict with one another from time to time.”

(Kimmel’s words could, incidentally, serve as template for the Florida court that is presently hearing the case brought by seven professors against the University of Florida last November after it tried to deny them the right to appear in court and elsewhere to criticise the university’s ultimate administrator, Republican Governor Ron DeSantis, for his anti-mask policies and for the recently passed voter suppression laws.)

The Ontario judge dismissed CURIE’s argument that it did not indemnify Macfarlane’s actions, even if they had been motivated by “personal reasons”, since she was “acting in her capacity as a [UW] professor”.

Justice Kimmel’s most sweeping paragraphs asserted that, while UW signed the NDA and may have an interest in upholding it, the university has “an interest in protecting itself and its reputation by endorsing the practices of its professors [to provide] honest and truthful . . . off-list references.”

The NDA notwithstanding, UW may “have an interest in protecting itself against claims by students at other universities to whom it may be found to have owed a legal and moral duty”.

“There is at least a possibility that Professor Macfarlane was acting in the interests of the [university] where the disclosures she made may protect it from reputational damage or exposure to further third-party tort liability,” Kimmel wrote, underscoring the probity of MacFarlane’s decision to answer the requests for references honestly.

UW required to cooperate

Justice Kimmel’s ruling required CURIE to pay for her defence and for UW to cooperate with Macfarlane on her defence. “Which, to be honest, it [UW] barely did,” she told University World News, “Nor did the decision void the NDA, and, thus, force the university to release the termination letter, which would have established the ‘absolute truth’ of what I said to the other universities.”

Since the case was brought in Trinidad, Macfarlane was unable to petition the court to order UW to release documents, because the West Indian court lacked jurisdiction in Ontario.

Accordingly, she says, “I was found to have defamed him.” CURIE paid the award adjudged by the Trinidadian court.

Less than hopeful

Back in PEI, psychology professor Colleen MacQuarrie, who has taught at UPEI since 1989, is less than hopeful that the new law respecting NDAs or the abrupt departure of president Alaa Abd-El-Aziz will change much.

Citing health reasons Abd-El-Aziz unexpectedly resigned on Tuesday 7 December. His resignation came three days after he had been reappointed to his third five-year term, and several days after the UPEI board of governors announced that it had been informed of allegations of harassment against Abd-El-Aziz.

In 2013, UPEI settled two sexual harrassment complaints against Abd-El-Azzis that had been filed with the province’s Human Rights Commission.

Tilleczek recalls hearing rumours at the time that one member of the board of governors responded to allegations that the president had harassed a staff member with the words, “Well, at least he didn’t steal money.”

“The recent quote reported by CBC from the faculty member of the board of governors also suggests that some people were aware of the situation of harassment but treated it as ‘one character flaw’ to be balanced when they were making the decision to extend the contract of the president,” Tilleczek says.

(On 13 December, UPEI announced that Janice Rubin would examine the allegations against Abd-El-Aziz; Rubin achieved fame in 2015 for her investigation and her finding that Jian Ghomeshi, the host of Q, one of the Canadian Broadcasting Corporation’s most highly regarded radio shows, fostered a culture of disrespect and abusive behaviour.)

During her years at UPEI, Tilleczek had first-hand experience with the administrative culture of “silence and fear and complicity and retaliation” presided over by Abd-El-Aziz and at least one other senior administrator.

For her troubles helping women who made accusations of harassment at UPEI, and who ultimately signed NDAs, Tilleczek told University World News, she was retaliated against.

She was twice threatened that her Canadian Foundation for Innovation funded CRC Lab and all its staff (Young Lives Research Lab) was to be moved to one or another basement on the campus.

“It’s just so textbook, I mean, honestly, the basement had actually flooded,” she says.

Colleagues in nursing were carrying their wet boxes on the day that she was to examine the space and one told her: ‘They’re not putting you here . . . No, that’s not on. We won’t be having our new Canada Research Chair there.”

A few years later, her project manager rushed into her office and said: “I’ve just bumped into the vice-president, and they’re going to try to move you to another basement space.”

“It, too, was dreadful – so much so that the IT folks had just moved out of there,” she recalls.

MacQuarrie characterises the culture at UPEI as “heteropatriarchal and white supremacist”, meaning it is a system of intersecting oppressions of homophobia, misogyny, and racism.

In the spring of 2021, after UPEI’s administration ignored her request for it to intervene in what had become a “toxic environment for a student who was being harmed by students and leadership” in her department, MacQuarrie filed a third-party complaint.

Immediately after telling me this, referring to the Fair Treatment rules (which can be seen as a cousin of the NDA rules), MacQuarrie asked: “What the heck can I say. Can I tell you which programme it is in? Or do I immediately fall under restraints,” before adding: “See how hard it is for me to even talk about these issues.”

Under the rules of the third-party complaint, MacQuarrie has withdrawn from teaching in the specific programme in question and will no longer supervise new students in that programme. While she is allowed to speak with one other person, MacQuarrie is prevented from having conversations with anyone, including the student who had been harassed that she had been supporting.

“Both the university and the outside lawyers they hired to investigate pushed for an informal process,” MacQuarrie reflected.

“The problem with that is that, when you move to an informal process, all that ever comes out of it is a letter somewhere that disappears. It’s not part of the formal record of a programme.”

Nevertheless, MacQuarrie persisted in her request for a fully formalised process. The investigators elected to split the complaint into two separate processes. Even though she had filed the complaint and submitted an 11-page evidentiary document, MacQuarrie was not included in the final decision because the investigators shifted the complaint about harassment of the student to an informal process.

In September 2021, the formal findings were sent to the university administration for review about the programme. The programme was found to be non-compliant in its fair treatment of the student. Accordingly, MacQuarrie was successful in using the fair treatment process to protect this one student this one time.

“The programme stopped its unfair treatment of this student,” says MacQuarrie.

The peer harassment process, which had been moved to an informal resolution, has had a much less satisfactory ending: there is only a confidential letter on file about that aspect of the harassment and it is not part of any official record, says MacQuarrie.

“By all appearances,” she told University World News, “the programme has not apologised to the student for the harassment nor have they offered any tangible recognition of how to ensure programmatic harassment does not happen again.”

Huge power imbalance

Each of the three professors I spoke to while researching this story made the same point that Lund did about the huge power imbalance between a complainant and the universities that quickly lawyer up.

Despite the fact that she doubts NDAs that shield harassers or abusers would stand up in court (they cannot shield illegal behaviour), Lund said: “We’re assuming that people have a high level of legal literacy, and they don’t.”

Most of the people she had spoken to while working on Bill 118 had not taken independent legal advice.

“Before they signed their agreements, they were told they had 24 or 36 hours to make a decision or the money is off the table. They are under duress which, again, means the NDAs would not be upheld by most courts.

“But the individual had no awareness of that. They find what they believed in the agreement that is entirely unenforceable,” she says.

Rarely made point

At the end of our discussion, MacQuarrie made a point that I had not seen before in discussion of workplace and college or university harassment and then addressed the situation at UPEI, which, because it is in the province best known for Anne of Green Gables, in Canada’s social imaginary seems a long way from being a place where harassment is rife.

When I asked her if “everybody knew” but stayed silent, she answered that, instead of knowing, there were rumours. “And, to be quite blunt, rumours actually deflect from the seriousness of harassment. What can you do with a rumour? Nothing.

“People sort of knew on the gossip level, but we should view gossip as being akin to intimate partner violence. People who know the violent man always say: ‘He was such a fine, upstanding citizen’.”

MacQuarrie’s second point was, perhaps, less surprising than it might have been a week earlier.

A few days before we spoke, the Canadian Broadcasting Corporation (CBC) reported that, for more than a decade, the police of the picturesque city of Charlottetown, the province’s capital city of 34,000, had been more or less ignoring women who reported to the police that they believed they had been drugged.

Shawna Perry told the CBC that she had come forward 12 years ago but, despite the medical examiner and rape kit finding both foreign DNA (the tell-tale sign of semen) and drugs in her body, the police closed her case.

Looking back at the investigations that have been kept secret and the NDAs, MacQuarrie says that it’s hard to not to think that the system was designed to prevent seeing linkages between events. The harassment policy and the NDAs are functioning precisely as they are intended to.

“Their only purpose is to protect the façade that the university does not have any problems, so they [the administration and board of governors] do not have to make any changes, even when a formal report comes back.”

This story was updated on 18 January 2022