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Bill 124, Stopping the Misuse of Non-Disclosure Agreements Act, 2023

Wong-Tam, Kristyn

Karpoche, Bhutila

Pasma, Chandra

Sattler, Peggy

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Status

Debates

Original

Bill 124 Original (PDF)

EXPLANATORY

NOTE

The

Bill enacts the Stopping the Misuse of Non-Disclosure

Agreements Act, 2023 . The Act prohibits any party responsible, defined

in the Act as the person who has an obligation in the law to take reasonable

steps to prevent discrimination, harassment, sexual harassment or sexual

assault in the place where one or more of these happened or is alleged to have

happened, from entering into a non-disclosure agreement with a relevant person,

defined in the Act as the person who has experienced or made an allegation of

one of the underlying acts, if the non-disclosure agreement has the purpose or

effect of concealing the details of the incident.

The

Act includes an exception for situations in which the relevant person expressly

wishes to enter into the agreement. The Act sets out requirements for such an

agreement to be enforceable as well as limits on such an agreement.

Section

3 of the Act prohibits non-disclosure agreements between the party responsible

and the person who committed or is alleged to have committed the underlying act

if the purpose of that non-disclosure agreement is preventing a lawful

investigation into a complaint of harassment or discrimination.

Bill 124 2023

Act to regulate the use of non-disclosure agreements relating to

discrimination, harassment, sexual harassment and sexual assault

His

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

Definitions

this Act,

“party

responsible” means a person who has an obligation in law to take reasonable

steps to prevent discrimination, harassment, sexual harassment or sexual

assault in the place where the discrimination, harassment, sexual harassment or

sexual assault occurred or is alleged to have occurred; (“partie responsable”)

“relevant

person” means a person who has experienced or made allegations of discrimination,

harassment, sexual harassment or sexual assault. (“personne concernée”)

Limits

on non-disclosure agreements

(1) No

party responsible or person who committed or who is alleged to have committed discrimination,

harassment, sexual harassment or sexual assault shall enter into a

non-disclosure agreement with a relevant person if the non-disclosure agreement

has the purpose or effect of concealing the details relating to a complaint of discrimination,

harassment, sexual harassment or sexual assault.

Exception

(2) Despite

subsection (1), a party responsible or person who committed or who is alleged

to have committed discrimination, harassment, sexual harassment or sexual

assault may enter into a non-disclosure agreement with a relevant person if the

agreement is the expressed wish and preference of the relevant person concerned.

Enforceability

(3) A

non-disclosure agreement made under subsection (2) is not enforceable unless

the following requirements are satisfied with respect to the agreement:

1. The

relevant person has had a reasonable opportunity to receive independent legal advice.

2. There

have been no undue attempts to influence the relevant person in respect of the

decision to include a requirement not to disclose any material information.

3. The

agreement does not adversely affect,

i. the

health or safety of a third party, or

ii. the

public interest.

4. The

agreement includes an opportunity for the relevant person to decide to waive

their own confidentiality in the future and the process for doing so.

5. The

agreement is of a set and limited duration.

Limits

re agreement

(4) An

agreement made in accordance with subsection (2) shall not apply to,

(

a) any

disclosure of information protected or required under,

(

i) the

Employment Standards Act, 2000 ,

(ii) the

Human Rights Code ,

(iii) the

Occupational Health and Safety Act ,

(iv) any

other Act of the Legislative Assembly of Ontario, or

(

v) an

Act of the Parliament of Canada;

(

b) artistic

expression by the relevant person that does not identify,

(

i) the

party responsible or the person who committed or is alleged to have committed

the discrimination, harassment, sexual harassment or sexual assault, or

(ii) the

terms of the non-disclosure agreement; or

(

c) any

communication relating to the discrimination, harassment, sexual harassment or

sexual assault between the relevant person and,

(

i) a

person whose duties include the enforcement of an enactment or Act of the

Parliament of Canada, with respect to a matter within the person’s power to

investigate,

(ii) a

person authorized to practise law in Ontario,

(iii) a

legally qualified medical practitioner,

(iv) a

psychologist or psychological associate, within the meaning of the Psychology Act, 1991 ,

(

v) a

registered nurse or nurse practitioner,

(vi) a

social worker,

(vii) a

person who provides victim services,

(viii) a

community elder, spiritual counsellor or counsellor who is providing culturally

specific services to the relevant person,

(ix) the

Office of the Ombudsman,

(

x) a

friend, family member or other personal supporter, or

(xi) a

prescribed person or class of persons.

Non-application,

hiring

(5) An

agreement made in accordance with subsection (2) that relates to a previous

employment relationship does not apply to a relevant person’s communication

with a prospective employer for the purposes of obtaining employment and

providing information about the relevant person’s employment history if the

communication does not state the particulars of the discrimination, harassment,

sexual harassment or sexual assault that occurred or is alleged to have

occurred.

Plain

language

(6) An

agreement made under subsection (2) shall, insofar as is possible, be written

in plain language.

Separate

agreement prohibited

party responsible shall not enter into a separate non-disclosure agreement with

the person who committed or is alleged to have committed the discrimination,

harassment, sexual harassment or sexual assault for the purpose of preventing a

lawful investigation into a complaint of harassment or discrimination.

Effect

of non-compliance

A non-disclosure

agreement respecting an allegation or incident of discrimination, harassment,

sexual harassment or sexual assault that does not comply with

section 2 or 3 is

of no legal effect.

Non-disparagement

agreement

this Act, all references to a non-disclosure agreement shall be taken to also

refer to a non-disparagement agreement if the non-disparagement agreement has

the effect or purpose of concealing details relating to an allegation or

incident of discrimination, harassment, sexual harassment or sexual assault.

Non-disclosure

of amount paid

For

greater certainty, nothing in this Act prohibits the inclusion or enforcement

of a provision in a settlement agreement that precludes the disclosure of the

amount paid in the settlement of a claim.

Existing

agreements

non-disclosure agreement that was entered into before the day this

section came

into force is subject to subsections 2 (4) and (5), with any necessary

modifications.

Offence

party responsible or person who committed or is alleged to have committed discrimination,

harassment, sexual harassment or sexual assault who, after the coming into

force of this Act, enters into a non-disclosure agreement that is not made in

accordance with

section 2 or 3, is guilty of an offence and is liable on

summary conviction to a fine in accordance with the following:

1. If

the party responsible or person is an individual, $10,000.

2. If

the party responsible or person is a corporation, not less than $10,000 and not

more than $50,000.

Regulations

The

Lieutenant Governor in Council may make regulations,

(

a) defining

terms used but not defined in this Act;

(

b) respecting

any matter that the Lieutenant Governor in Council considers necessary or

advisable to carry out the intent and purpose of this Act;

(

c) prescribing

persons or classes of persons for the purposes of subclause 2 (4) (c) (xi).

Commencement

This Act comes into force on the day it receives Royal Assent.

Short

title

The

short title of this Act is the Stopping the Misuse of

Non-Disclosure Agreements Act, 2023 .

Date Bill stage Event Outcome Committee

June 6, 2023

First Reading

Ordered for Second Reading

June 6, 2023

First Reading

Vote

Carried

First Reading

June 6, 2023

Carried

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