First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
SENATE OF CANADA |
An Act respecting non-disclosure agreements
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FIRST READING, May 9, 2023
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THE HONOURABLE SENATOR McPHEDRAN |
This enactment requires the President of the Treasury Board to report on the use of certain non-disclosure agreements in the federal public sector. It also requires Parliament to undertake a review of the Act every two years after it enters into force.
It amends the Financial Administration Act and the Parliament of Canada Act in respect of the use of public money to enter into non-disclosure agreements and to litigate non-disclosure agreements against complainants.
It amends the Financial Administration Act to require federal officials empowered to make grants and contributions to take measures to ensure that public money is not used to
(a) pay for settlements in relation to harassment and violence or discrimination if the settlement is to include a non-disclosure agreement; or
(b) litigate non-disclosure agreements against complainants.
Finally, it amends the Financial Administration Act to require non-government entities receiving a grant or contribution of federal funds to report to the President of the Treasury Board on their use of non-disclosure agreements.
Available on the Senate of Canada website at the following address: www.sencanada.ca/en |
Can’t Buy Silence Act
Definitions
Information
Parliamentary review
Sixty days after royal assent
1st Session, 44th Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
SENATE OF CANADA |
BILL S-261 |
An Act respecting non-disclosure agreements |
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1 This Act may be cited as the Can’t Buy Silence Act.
2 The following definitions apply in this Act.
complainant has the meaning assigned by subsection 25.1(4) of the Financial Administration Act. (plaignant)
non-disclosure agreement has the meaning assigned by subsection 25.1(4) of the Financial Administration Act. (accord de non-divulgation)
3 (1) Beginning in the first year after this Act receives royal assent, the President of the Treasury Board must cause to be tabled, in both Houses of Parliament, not later than 45 days after the fiscal year ends, a report containing the following information about the previous fiscal year for each entity whose financial information is included in the Public Accounts prepared under the Financial Administration Act:
(a) the number of non-disclosure agreements entered into; and
(b) the total dollar amount of agreements containing non-disclosure agreements.
(2) The report referred to in subsection (1) must also contain the information provided to the President of the Treasury Board under subsection 25.1(2) of the Financial Administration Act.
(3) In the report, the President of the Treasury Board must certify that they are satisfied that the entities whose financial information is included in the Public Accounts prepared under the Financial Administration Act have provided accurate information for the purposes of the report.
(4) The information in subsection (1) must be provided in a manner that is not likely to reveal a person’s identity.
(5) The information in subsection (1) must be provided regardless of whether it is
(a) subject to any privilege, including parliamentary privilege, solicitor-client privilege or the professional secrecy of advocates and notaries, or litigation privilege; or
(b) a confidence of the King’s Privy Council for Canada to which subsection 39(1) of the Canada Evidence Act applies.
(6) For greater certainty, parliamentary privilege is expressly waived to provide the information required under this section, but it is not waived in respect of that information for any other purpose.
4 As soon as feasible after the second anniversary of the day on which this Act comes into force and every two years after that, a review of this Act and of its administration and operation is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.
R.S., ch. F-11
(a) pay for settlements in relation to harassment and violence or discrimination based on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act if the settlement is to include a non-disclosure agreement; or
(b) litigate non-disclosure agreements against complainants.
End of inserted block(a) the number of non-disclosure agreements entered into; and
(b) the total dollar amount of agreements containing non-disclosure agreements.
End of inserted blockcomplainant means any person who alleges having been the subject of harassment and violence or discrimination. (plaignant)
harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment. (harcèlement et violence)
non-disclosure agreement means a provision of a written agreement, however called, that is entered into after this section comes into force and is between a complainant and an entity whose financial information is included in the Public Accounts prepared under this Act, under which a complainant agrees not to disclose any material information regarding any of the following:
(a) a circumstance of harassment and violence or discrimination based on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act experienced or alleged by the complainant;
(b) the resolution of a complaint, including the details of any formal or informal process to address the allegation; or
(c) the monetary value of a written settlement insofar as it relates to the allegation.
For greater certainty, it includes a non-disparagement agreement if its purpose or effect is to require a complainant not to disclose information described in paragraphs (a) to (c). (accord de non-divulgation)
End of inserted block(a) any information disclosure that is protected or required under an Act of Parliament or the laws of a province or territory;
(b) artistic expression by the complainant that does not identify
(i) the party responsible or the person who committed or is alleged to have committed the harassment and violence or discrimination, or
(ii) the terms of the non-disclosure agreement; or
(c) any communication relating to the harassment and violence or discrimination between the complainant and
(i) a person whose duties include the enforcement of an Act of Parliament or the laws of a province or territory if the communication is in respect of a matter within the person’s official duties,
(ii) a person entitled to practise law by the law society of a province or territory,
(iii) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(iv) a medical practitioner or nurse practitioner as defined in section 241.1 of the Criminal Code,
(v) a psychologist or psychological associate authorized to practise as such under the laws of a province or territory,
(vi) a registered nurse authorized to practise as such under the laws of a province or territory,
(vii) a social worker authorized to practise as such under the laws of a province or territory,
(viii) a person who provides victim services pursuant to the laws of a province or territory, or
(ix) a friend, family member or other personal supporter.
End of inserted blockR.S., ch. P-1
(a) enter into a non-disclosure agreement as defined in subsection 25.1(4) of the Financial Administration Act unless the complainant, after having had the opportunity to obtain independent legal advice that includes advice on alternative means to protect the confidentiality of their personal information, makes a specific and voluntary written request for a non-disclosure agreement before the agreement is entered into; or
(b) litigate non-disclosure agreements against complainants.
End of inserted block(a) any information disclosure that is protected or required under an Act of Parliament or the laws of a province or territory;
(b) artistic expression by the complainant that does not identify
(i) the party responsible or the person who committed or is alleged to have committed the harassment and violence or discrimination, or
(ii) the terms of the non-disclosure agreement; or
(c) any communication relating to the harassment and violence or discrimination between the complainant and
(i) a person whose duties include the enforcement of an Act of Parliament or the laws of a province or territory if the communication is in respect of a matter within the person’s official duties,
(ii) a person entitled to practise law by the law society of a province or territory,
(iii) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(iv) a medical practitioner or nurse practitioner as defined in section 241.1 of the Criminal Code,
(v) a psychologist or psychological associate authorized to practise as such under the laws of a province or territory,
(vi) a registered nurse authorized to practise as such under the laws of a province or territory,
(vii) a social worker authorized to practise as such under the laws of a province or territory,
(viii) a person who provides victim services pursuant to the laws of a province or territory, or
(ix) a friend, family member or other personal supporter.
End of inserted block(a) enter into a non-disclosure agreement as defined in subsection 25.1(4) of the Financial Administration Act unless the complainant, after having had the opportunity to obtain independent legal advice that includes advice on alternative means to protect the confidentiality of their personal information, makes a specific and voluntary written request for a non-disclosure agreement before the agreement is entered into; or
(b) litigate non-disclosure agreements against complainants.
End of inserted block(a) any information disclosure that is protected or required under an Act of Parliament or the laws of a province or territory;
(b) artistic expression by the complainant that does not identify
(i) the party responsible or the person who committed or is alleged to have committed the harassment and violence or discrimination, or
(ii) the terms of the non-disclosure agreement; or
(c) any communication relating to the harassment and violence or discrimination between the complainant and
(i) a person whose duties include the enforcement of an Act of Parliament or the laws of a province or territory if the communication is in respect of a matter within the person’s official duties,
(ii) a person entitled to practise law by the law society of a province or territory,
(iii) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(iv) a medical practitioner or nurse practitioner as defined in section 241.1 of the Criminal Code,
(v) a psychologist or psychological associate authorized to practise as such under the laws of a province or territory,
(vi) a registered nurse authorized to practise as such under the laws of a province or territory,
(vii) a social worker authorized to practise as such under the laws of a province or territory,
(viii) a person who provides victim services pursuant to the laws of a province or territory, or
(ix) a friend, family member or other personal supporter.
End of inserted block(a) enter into a non-disclosure agreement as defined in subsection 25.1(4) of the Financial Administration Act unless the complainant, after having had the opportunity to obtain independent legal advice that includes advice on alternative means to protect the confidentiality of their personal information, makes a specific and voluntary written request for a non-disclosure agreement in writing before the agreement is entered into; or
(b) litigate non-disclosure agreements against complainants.
End of inserted block(a) any information disclosure that is protected or required under an Act of Parliament or the laws of a province or territory;
(b) artistic expression by the complainant that does not identify
(i) the party responsible or the person who committed or is alleged to have committed the harassment and violence or discrimination, or
(ii) the terms of the non-disclosure agreement; or
(c) any communication relating to the harassment and violence or discrimination between the complainant and
(i) a person whose duties include the enforcement of an Act of Parliament or the laws of a province or territory if the communication is in respect of a matter within the person’s official duties,
(ii) a person entitled to practise law by the law society of a province or territory,
(iii) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(iv) a medical practitioner or nurse practitioner as defined in section 241.1 of the Criminal Code,
(v) a psychologist or psychological associate authorized to practise as such under the laws of a province or territory,
(vi) a registered nurse authorized to practise as such under the laws of a province or territory,
(vii) a social worker authorized to practise as such under the laws of a province or territory,
(viii) a person who provides victim services pursuant to the laws of a province or territory, or
(ix) a friend, family member or other personal supporter.
End of inserted block(a) enter into a non-disclosure agreement as defined in subsection 25.1(4) of the Financial Administration Act unless the complainant, after having had the opportunity to obtain independent legal advice that includes advice on alternative means to protect the confidentiality of their personal information, makes a specific and voluntary written request for a non-disclosure agreement before the agreement is entered into; or
(b) litigate non-disclosure agreements against complainants.
End of inserted block(a) any information disclosure that is protected or required under an Act of Parliament or the laws of a province or territory;
(b) artistic expression by the complainant that does not identify
(i) the party responsible or the person who committed or is alleged to have committed the harassment and violence or discrimination, or
(ii) the terms of the non-disclosure agreement; or
(c) any communication relating to the harassment and violence or discrimination between the complainant and
(i) a person whose duties include the enforcement of an Act of Parliament or the laws of a province or territory if the communication is in respect of a matter within the person’s official duties,
(ii) a person entitled to practise law by the law society of a province or territory,
(iii) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(iv) a medical practitioner or nurse practitioner as defined in section 241.1 of the Criminal Code,
(v) a psychologist or psychological associate authorized to practise as such under the laws of a province or territory,
(vi) a registered nurse authorized to practise as such under the laws of a province or territory,
(vii) a social worker authorized to practise as such under the laws of a province or territory,
(viii) a person who provides victim services pursuant to the laws of a province or territory, or
(ix) a friend, family member or other personal supporter.
End of inserted block11 This Act comes into force 60 days after the day on which it receives royal assent.
Published under authority of the Senate of Canada
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