BILL NO. 144

(as introduced)

1st Session, 64th General Assembly
Nova Scotia
71 Elizabeth II, 2022

Private Member's Bill

Non-disclosure Agreements Act

Claudia Chender
Dartmouth South

First Reading: April 7, 2022

Second Reading:

Third Reading:

An Act Respecting Non-disclosure Agreements

Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Non-disclosure Agreements Act.

2 In this Act,

(a) "discrimination" means discrimination as described in Section 4 of the Human Rights Act;

(b) "harassment" means any action, conduct or comment that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to a person and, without limiting the generality of the foregoing, includes actions, conduct or comments of a sexual nature, including but not limited to

(ii) sexually suggestive remarks, jokes or gestures,

(iii) circulating or sharing inappropriate images,

(iv) unwanted physical contact,

(v) any action, conduct or comment that might reasonably be perceived as placing a condition of a sexual nature on employment, an opportunity for training or a promotion, and

(vi) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance;

(c) "Minister" means the member of the Executive Council charged by order of the Governor in Council with the administration of this Act;

(d) "non-disclosure agreement" means a provision in writing in a settlement agreement, however described, between a relevant person and

(ii) the person who committed or is alleged to have committed the harassment or discrimination, whereby the relevant person agrees not to disclose any material information about the circumstances of a dispute between them concerning allegations of harassment or discrimination that are unlawful under an enactment or an Act of the Parliament of Canada;

(e) "party responsible" means a person who has an obligation in law to take reasonable steps to prevent harassment and discrimination in the place where the harassment or discrimination occurred or is alleged to have occurred;

(f) "relevant person" means the person who has experienced or made allegations about harassment or discrimination;

(g) "settlement agreement" means an agreement between two or more parties that disposes of one or more issues in dispute between the parties in relation to allegations of harassment or discrimination.

3 The Minister is responsible for the administration of this Act.

4 The purpose of this Act is to regulate the content and use of non-disclosure agreements.

5 (1) Other than in accordance with subsection (2), no party responsible or person who committed or who is alleged to have committed harassment or discrimination shall enter into a non-disclosure agreement with a relevant person if

(a) the relevant person has experienced or made allegations of harassment or discrimination; and

(b) the non-disclosure agreement has the purpose or effect of concealing the details relating to a complaint of harassment or discrimination.

(2) A party responsible or person who committed or who is alleged to have committed harassment or discrimination may only enter into a non-disclosure agreement with a relevant person in accordance with this Section if such an agreement is the expressed wish and preference of the relevant person concerned.

(3) Where a non-disclosure agreement is made under subsection (2), the agreement is only enforceable if

(a) the relevant person has had a reasonable opportunity to receive independent legal advice;

(b) 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;

(ii) the public interest;

(d) the agreement includes an opportunity for the relevant person to decide to waive the relevant person's own confidentiality in the future and the process for doing so; and

(e) the agreement is of a set and limited duration.

(4) Where a non-disclosure agreement following an allegation or incident of harassment or discrimination is made that does not comply with subsection (3), that non-disclosure agreement is void.

(5) A party responsible shall not 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.

(6) An agreement made in accordance with subsection (2) does not apply to

(a) any disclosure of information protected or required under the Labour Standards Act, the Human Rights Act, the Occupational Health and Safety Act or any disclosure protected or required under another enactment or an Act of the Parliament of Canada;

(b) artistic expression by the relevant person that does not identify

(ii) the terms of the non-disclosure agreement;

(ii) a person authorized to practise law in the Province under the Legal Profession Act,

(iii) a medical practitioner as defined in the Medical Act,

(iv) a registered psychologist as defined in the Psychologists Act,

(v) a registered nurse or nurse practitioner as defined in the Nursing Act,

(vi) a social worker as defined in the Social Workers Act,

(vii) a person who provides victim services pursuant to the Victims' Rights and Services Act,

(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, a family member or personal supporter as specified or approved in the non-disclosure agreement, or

(7) 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 purpose of obtaining employment and providing information about the relevant person's employment history, including disclosure of the fact that

(a) 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

(b) 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.

(8) A non-disclosure agreement made under subsection (2) must, in so far as is possible, be written in plain language.

(9) In this Section, all references to a non-disclosure agreement also apply to a non-disparagement agreement where the non-disparagement agreement has the effect or purpose of concealing details relating to an allegation or incident of harassment or discrimination.

(10) Subject to subsection (6), nothing in this Section 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.

6 Notwithstanding the provisions of a non-disclosure agreement entered into before the coming into force of this Act, no such agreement applies to disclosures permitted under subsections 5(6) and (7).

7 A party responsible or person who committed or is alleged to have committed harassment or discrimination who, after the coming into force of this Act, enters into a non-disclosure agreement that is not made in accordance with Section 4, 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.

8 (1) The Governor in Council may make regulations

(a) prescribing persons or classes of persons to whom a non-disclosure agreement does not apply under subsection 4(6);

(b) defining terms used but not defined in this Act;

(c) respecting any matter that the Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.

9 The money required for the purpose of this Act must be paid out of money appropriated for that purpose by the Legislature.

10 This Act has effect on the day six months after the date of Royal Assent or on a date to be proclaimed by the Governor in Council, whichever is earlier.

This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2022 Crown in right of Nova Scotia. Created April 7, 2022. Send comments to legc.office@novascotia.ca.

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BILL NO. 144

(as introduced)

Non-disclosure Agreements Act

An Act Respecting Non-disclosure Agreements

More Information