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.

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Restrictions — grants and contributions

25.‍1 (1) Any statutory authority that allows for the making of a grant or a contribution of public money to an entity whose financial information is not included in the Public Accounts prepared under this Act must be exercised in a way that prevents public money from being used to

• (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

Report to President of Treasury Board

(2) An agreement that provides for a grant or contribution of public money to an entity whose financial information is not included in the Public Accounts must include a provision requiring the entity to report to the President of the Treasury Board, on an annual basis, information on

• (a) the number of non-disclosure agreements entered into; and

• (b) the total dollar amount of agreements containing non-disclosure agreements.

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Anonymous data

(3) The information in subsection (2) must be provided in a manner that is not likely to reveal a person’s identity.

Definitions

(4) The following definitions apply in this section and in section 40.‍01.

complainant 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)

Restriction — non-disclosure agreements

40.‍01 (1) No department, departmental corporation or Crown corporation may enter into a non-disclosure agreement 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.

Permitted disclosures

(2) A non-disclosure agreement entered into in accordance with subsection (1) does not apply to

• (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

Restriction — public money

(3) No department, departmental corporation or Crown corporation may use public money to litigate a non-disclosure agreement against a complainant.

Restriction — non-disclosure agreement

(3) Despite subsection (1), the Committee may not permit public money to be used to

• (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

Permitted disclosures

(4) A non-disclosure agreement entered into in accordance with subsection (3) does not apply to

• (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

Restriction — non-disclosure agreement

(3) Despite subsection (1), the Board may not permit public money to be used to

• (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

Permitted disclosures

(4) A non-disclosure agreement entered into in accordance with subsection (3) does not apply to

• (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

Restriction — non-disclosure agreement

(2.‍1) Despite anything in this Act, the Parliamentary Librarian may not

• (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

Permitted disclosures

(2.‍2) A non-disclosure agreement entered into in accordance with subsection (2.‍1) does not apply to

• (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

Restriction — non-disclosure agreement

(4) Despite anything in this Act, the Service may not

• (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

Permitted disclosures

(2) A non-disclosure agreement entered into in accordance with subsection (4) does not apply to

• (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