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NDA expert bringing talk to Kamloops in wake of high-profile TRU misconduct investigation

NDA talk follows TRU probe

Non-disclosure agreements prevented some complainants in a recent high-profile misconduct probe at Thompson Rivers University from participating in the investigation, according to a law professor slated to give a talk this week in Kamloops on the misuse of NDAs.

Dr. Julie Macfarlane, who teaches in the law school at the University of Windsor, said she worked with some of the TRU complainants before the misconduct investigation was launched.

“I know that faculty members signed NDAs and were told they had to, to get their severance,” Macfarlane told Castanet Kamloops.

“I was contacted by a faculty member when they were still at the point of trying to get the university to determine there would be an investigation."

The investigation examined a total of 55 allegations. Ten allegations from four complainants were substantiated against former TRU human resources boss Larry Phillips. Twenty-two allegations against the other administrator, Matt Milovick, the university's vice-president of administration and finance, weren't substantiated.

The NDAs were also detailed in an anonymous letter the complainants wrote to the independent investigators on Sep. 16, 2020, included in TRU’s redacted report of the investigation.

“As a condition of receiving a severance payment, several complainants had no choice but to sign a non-disparagement agreement that prevents them from speaking about the misconduct they observed and experienced,” the letter reads.

The letter asked TRU not to enforce the terms of the NDAs so that the complainants could participate in the investigation.

In response, TRU released parties from their confidentiality obligations to allow them to speak freely during the investigation.

Macfarlane said that process took one year. In that time, she said, some complainants dropped out and did not participate.

“They just didn’t want to be part of any of this any longer,” she said.

Following the closure of the investigation, the confidentiality obligations were reinstated, according to Macfarlane.

Macfarlane is a co-founder of Can’t Buy My Silence, a group seeking to create legislation that protects victims of harassment and discrimination from being silenced by NDAs.

“We have all these anonymized testimonies on our website,” said Macfarlane.

“And you'll see it's exactly that story over and over again — ‘I was told that unless I signed the NDA, I wouldn't get any severance, I wouldn't get any compensation.’

“Legally, this is all a total bluff. ... In the culture of legal negotiations, that I spent a lot of time in, it will be seen as hard bargaining."

Macfarlane said that in most cases the NDA will state that the complainant cannot speak of their experience or identify their abuser.

“And they won't tell anybody, including any family or friends or therapists, or prospective employers they might go to for their next job," she said.

"They won't say anything at all about what happened at that workplace."

Often, she said, victims won’t report workplace harassment knowing that they'll be asked to sign an NDA.

“Twenty-nine per cent of people say that they didn't make a formal complaint in the end because they knew they would get pressed to sign an NDA, and they didn’t want to,” Macfarlane said.

Macfarlane is speaking in Kamloops on the heels of the Ontario government passing a law that prohibits universities from using NDAs to cover up sexual misconduct.

“So we've gotten the Ontario legislation done," she said.

"Hopefully, Manitoba [and] Nova Scotia sometime in the next session will go through. There are two other provinces, which I can't tell you because they’re confidential, where the bill is about to be tabled."

Macfarlane has also recently submitted motion to the Canadian Bar Association to strongly discourage members from using NDAs in cases of harassment and discrimination, and to advocate for governments to limit their use.

“That passed last month by 94 per cent — much to my amazement but I was thrilled,” she said.

Macfarlane will be speaking about NDA abuse at a free event at Desert Gardens on Thursday from 4 to 5 p.m.

Milovick has filed a lawsuit against his accusers. The complainants have since launched an online fundraiser to raise money for their legal defence.

TRU has said it is seeking the permission of the complainants to release a more fulsome public report on the entire incident.



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