Human Rights: Harassment
The Non-Disclosure Agreements Act came into force effective May 17, 2022.
IMPORTANT: While harassment is not specifically addressed in the Code, the PEI Human Rights Tribunal has provided an information sheet that states it considers harassment to be discrimination under the Act if the unwelcome behaviour can be linked to a prohibited ground of discrimination. It also states that under human rights law, sexual harassment is considered discrimination based on sex.
You should contact a lawyer for further advice.
Note: these requirements also apply to non-disparagement agreements where the non-disparagement agreement has the effect or purpose of concealing details relating to an allegation or incident or harassment or discrimination.
Non-Disclosure Agreements Prohibited
A person who is responsible for preventing harassment and discrimination and a person who committed or is alleged to have committed harassment or discrimination cannot enter into a nondisclosure agreement with the person who has experienced or alleged harassment or discrimination if:
- the person has experienced or made allegations of harassment or
discrimination; and - the non-disclosure agreement has the purpose or effect of concealing the details relating to a complaint of harassment or discrimination.
Exception
A non-disclosure agreement can only be entered into if the agreement is the expressed wish and preference of the person who experienced or alleged harassment or discrimination, in which case, the agreement is only enforceable if:
- the person who experienced or alleged harassment or discrimination has had a reasonable opportunity to receive independent legal advice;
- there have been no undue attempts to influence that person in respect of the decision to include a requirement not to disclose any material information;
- the agreement does not adversely affect:
- the health or safety of a third party, or
- the public interest;
- the agreement includes an opportunity for the person to decide to waive their own confidentiality in the future and the process for doing so; and
- the agreement is of a set and limited duration.
Any such agreement must be written, as much as possible, in plain language.
A person who is responsible for preventing harassment and discrimination cannot enter into a separate non-disclosure agreement with the person
who committed or is alleged to have committed the harassment or discrimination for the purpose of preventing a lawful investigation into a complaint of harassment or discrimination.
A non-disclosure agreement that is made following an allegation or incident of harassment or discrimination and that does not comply with requirements above is null and void.
Non-Application
Permitted Disclosures
An agreement that is made in accordance with the Exception above does not apply to:
- any disclosure of information protected or required under the Employment Standards Act, the Human Rights Act, the Occupational Health and
Safety Act, or any disclosure protected or required under another enactment or Act of the Parliament of Canada; - artistic expression by the relevant person that does not identify:
- the party responsible or the person who committed or is alleged to have committed the harassment or discrimination, or
- the terms of the non-disclosure agreement;
- any communication relating to the harassment or discrimination between the relevant person and:
- 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;
- a person authorized to practise law in the province;
- a medical practitioner;
- a psychologist or psychological associate;
- a registered nurse or nurse practitioner;
- a social worker;
- a person who provides victim services pursuant to the Victims of Crime Act;
- a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the person who experienced or alleged harassment or discrimination;
- the Office of the Ombudsperson; and
- a friend, a family member or personal supporter as specified or approved in the non-disclosure agreement.
Subject to the above, nothing 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.
Hiring
A non-disclosure agreement made under the Exception that relates to a previous employment relationship does not apply to the person’s communication with a prospective employer for the purpose of obtaining employment and providing information about the relevant person’s employment history, including:
- disclosure of the fact that a settlement agreement was reached with the party responsible or the person who committed or is alleged to have committed the harassment or discrimination; and
- that the settlement agreement includes a non-disclosure agreement
if the communication does not state the particulars of the harassment or discrimination that occurred or is alleged to have occurred.
Regardless of the provisions in a non-disclosure agreement that was entered into before this Act came into force, no such agreement shall apply to permitted disclosures and hiring (above).
Offence
A person who is responsible for preventing harassment or discrimination or a person who committed or is alleged to have committed harassment or discrimination who:
- enters into a non-disclosure agreement after this Act is in force; and
- the agreement is not made in accordance with the requirements for non-disclosure agreements
is guilty of an offence and is liable on summary conviction to a fine of not less than $2,000 or more than $10,000.
See also: PEI Occupational Health and Safety