The Canadian Bar Association
Personal Injury

Public employers should avoid gag orders

Public employers should steer clear of “gag orders”, Toronto personal injury lawyer Elizabeth Grace tells the CBC's Go Public after a B.C. woman accused Correctional Service Canada (CSC) of trying to buy her silence.

According to the article, the woman took part in a controversial three-week emergency response training program for correctional officers but was forced to leave early when managers said they couldn’t guarantee her safety.

She complained to the Canadian Human Rights Commission about her treatment during the course, alleging she was “insulted, degraded, harassed and discriminated against,” the story says.  

Following an internal investigation, the woman says she was sent a letter of apology and asked to sign an agreement that would make her a parole officer in her community, but only so long as she agreed not to take action over the incidents and kept the terms confidential.  

"I think they're trying to silence me," the woman says in the story. "But they're not taking away my ability to speak about this, and tell people, if you experience this, it's not right. I'm not signing it."

Grace, a partner with Lerners LLP who was not involved with the case, tells the network’s Go Public segment that she has often seen women pressured into signing confidentiality agreements during her two decades acting for victims of sexual abuse.

"Very few people have the courage that she has to say, 'I'm not taking an offer that would potentially improve my situation because of these greater principles — being able to talk about this,'" Grace says.

In an interview with AdvocateDaily.com, Grace says that in her experience, the vast majority of sexual abuse and harassment survivors “want to make sure others do not go through what they did."

"They want to see some good come out of their bad experiences,” she adds.

However, Grace says victims are often made to choose between accepting a settlement from which they and family members will benefit, and fighting on.

"Among other things, settlement offers certainty, finality, compensation and a possibility of some closure," she explains.

"On the other hand, continuing on with an adversarial claim is risky, uncertain, involves delay and consumes emotional and financial resources," Grace says.

Faced with this choice, she says most will understandably opt for the settlement option, even though it will usually prevent them from disclosing the fact and terms of settlement, and sometimes even more.

Grace says rare cases involve what she calls “the brave crusaders;” individuals who refuse to enter into a settlement agreement because the principle of freedom of expression is so important to them.

“These people want the freedom to choose whether or not and how to speak about what has happened to them,” she says.

But, as Grace tells the CBC, the public should demand a higher level of transparency from government employers, adding they should not be in the business of making employees "keep their mouths shut" in return for justice.

"The employer wants these [confidentiality agreements] not only for closure," Grace says. "But to limit the possibility of others finding out and coming forward."

In more recent years, Grace tells AdvocateDaily.com that she has seen confidentiality agreements become gradually less sweeping.

“It used to be that they would not allow claimants to say anything about what had happened to them or how their case had been addressed - a true 'gag order,'" she says.

"Over time, non-disclosure requirements have generally been narrowed to simply preventing a claimant from talking about the settlement, but leaving them free to speak about the underlying events and their effects."

But it's not always the case, she adds:

“Individuals – especially high profile ones – and also private companies often make it a condition of settlement that there be broad non-disclosure,” Grace says.

A CSC spokesperson responded to the CBC by claiming the confidentiality clause was meant “to protect the interests of ALL parties.”

“The interests in preserving the confidence regarding the contents of a memorandum of agreement allow those who are impacted by the situation to come to mutual understanding without the influence of external pressures and constraints," the statement added.

Grace tells AdvocateDaily.com she's skeptical of the CSC's position. Noting that no two cases are the same and may require different treatment, she argues that taxpayer-funded governments and public bodies need to be held “to a much higher standard of transparency.”

"It is also particularly important that they, as public entities, uphold the principle of freedom of expression and speech that is so fundamental in Canadian law,” Grace says.

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