2 women who signed NDAs unable to testify in UPEI review into sexual harassment: lawyer

Two girls who got here ahead in 2012 with allegations of sexual harassment on the College of Prince Edward Island have been unable to supply testimony in an ongoing assessment as a result of they signed non-disclosure agreements (NDAs), in line with the lawyer representing them.

That assessment, by the Toronto-based regulation agency Rubin Thomlinson, is supposed to take a look at how the college has handled complaints of sexual harassment on campus, and its follow of signing NDAs with complainants who got here ahead.

Lawyer Ron Pink spoke concerning the state of affairs dealing with his purchasers throughout a RisePEI panel dialogue on NDAs organized by the group Cannot Purchase My Silence, which is campaigning for an finish to the usage of the paperwork to silence victims.

Pink stated UPEI agreed to waive the situations of the NDAs his purchasers had signed in order that they may take part within the assessment, however he stated the state of affairs was sophisticated by the truth that the particular person being accused of harassment had additionally signed the settlement.

As a result of they could not get the [alleged] harasser to forgo the NDA, they could not testify or communicate to the investigator.— Ron Pink

“As a result of they could not get the [alleged] harasser to forgo the NDA, they could not testify or communicate to the investigator,” Pink stated of the 2 girls. 

“And there is no manner round it legally, besides with an actual battle and an costly battle [so] that they are saying, ‘What do I need to try this for?'”

Pink didn’t identify his purchasers or the particular person accused of sexual harassment by his purchasers.

The circumstances and timelines all correspond with what CBC Information has beforehand reported relating to allegations of sexual harassment made in opposition to the previous president of UPEI, Alaa Abd-El-Aziz.

CBC Information tried a number of instances to contact Abd-El-Aziz however didn’t obtain a response.

CBC Information additionally reached out to Pink, who declined to substantiate additional particulars from his presentation. He additionally declined a request for an interview.

UPEI says it waived confidentiality

Within the phrases of reference for the assessment, UPEI stated it was “dedicated to making an attempt to make sure that all those that are considering taking part within the assessment could have a possibility to take action,” even when that they had signed non-disclosure agreements as a part of their settlements with the establishment.

“The college has waived the confidentiality necessities for everybody who has contacted counsel, in order that they’ll overtly take part within the assessment,” a college spokesperson informed CBC by e mail.

However UPEI didn’t deal with questions on whether or not Abd-El-Aziz had additionally signed NDAs and whether or not he had refused to waive these situations to permit these folks to talk.

Neither did the college reply to a request to supply a spokesperson from the board of governors for an interview.

Basic and particular damages ‘and different issues’ 

As a part of the panel dialogue, Pink went into particulars on what his purchasers skilled after coming ahead. 

He described how they took their complaints to the P.E.I. Human Rights Fee, then agreed to attempt to settle their circumstances.

“We spent a pair days in mediation and we got here to a resolve,” Pink stated. “The resolve was cash being paid to the complainants — normal damages, particular damages and different issues to cowl their losses. And it had an NDA.”

On the time, Pink stated, NDAs have been commonplace in a lot of these settlements. On the panel dialogue he took accountability himself for negotiating one for his purchasers, and described the lasting affect it has had on them.

They lived this hurt for the final 10 years, and the lack to precise it to anyone is what’s killing them, actually making them sick.— Ron Pink

“They lived this hurt for the final 10 years, and the lack to precise it to anyone is what’s killing them, actually making them sick,” he stated.

“Simply the lack to even focus on it with a pal, or a colleague, or to write down about it in some educational journal indirectly, to precise the hurt that is prompted — not by the sexual harassment however by the dampening impact of the NDA.”

Pink stated his purchasers ended up again in remedy on account of their failed try to participate within the UPEI assessment.

“All of the dangerous recollections, all of the dangerous emotions, all of the sicknesses… it introduced all of it again up once more.”

New complainant got here ahead in 2021

Pink stated after the settlement, his purchasers felt compelled to maneuver away to restart their careers, however the alleged perpetrator stayed in place — and he stated allegations of sexual misconduct continued.

In December of 2021, he stated he obtained a name from one other girl saying she was additionally a sufferer.

“And I inform the college, I inform the employer, and lo and behold, they acted in a short time. And he was gone.

“So the employer says, ‘We’ll do an inquiry.'”

UPEI introduced its assessment on Dec. 8 of that yr, someday after the college introduced Abd-El-Aziz’s early retirement, citing well being causes.

In saying the assessment, the college stated it had obtained a recent allegation of “office misconduct” involving the previous president. As a part of the assessment, Rubin Thomlinson can be investigating that allegation.

NDA regulation ‘terrific,’ however not retroactive

In Might of this yr, P.E.I. turned the primary jurisdiction in Canada to enact a regulation limiting the usage of NDAs in circumstances of harassment, discrimination and sexual misconduct.

Pink descried the regulation as “a terrific piece of laws,” however one that did not defend his purchasers as a result of most of its restrictions weren’t made retroactive. Which means they cannot be utilized to NDAs signed earlier than the regulation got here into impact.

The invoice’s sponsor, Opposition MLA Lynne Lund, stated she did not intend that, however the province’s justice minister on the time made it clear “there was not going to be any assist for retroactive provisions. And within the curiosity of getting it handed, that was one of many issues we needed to be ready to let go of.”

One provision within the regulation makes an NDA unenforceable if it will have an opposed impact on the well being or security of a 3rd get together or the general public curiosity.

Lund stated that was meant to permit victims to talk out with a purpose to stop circumstances of serial abuse. 

“There are so few examples the place there’s one case of misconduct and one case solely,” she stated.

Time and time once more, what we noticed is that when a company used an NDA to cover sexual misconduct, the accused was emboldened to do it once more as a result of, frankly, they knew they may get away with it.— MLA Lynne Lund

“Time and time once more, what we noticed is that when a company used an NDA to cover sexual misconduct, the accused was emboldened to do it once more as a result of, frankly, they knew they may get away with it.”

However Lund admitted anybody making an attempt to make use of the third-party clause in P.E.I.’s regulation to nullify an NDA would possible face a prolonged and expensive authorized battle.

UPEI may have ‘main downside’

Lund additionally questioned the effectiveness of UPEI’s assessment if individuals who needs to be key witnesses should not allowed to participate.

“We could have a serious downside with restoring the general public’s confidence in UPEI and their potential to deal with allegations of sexual misconduct nicely, if there’s not a pathway that enables the people who find themselves most severely impacted to share their tales.”

Janice Rubin, one among two lead investigators within the assessment, stated Rubin Thomlinson wouldn’t touch upon the investigation whereas it’s ongoing. UPEI has not supplied a timeline for completion of the assessment.

“Rubin Thomlinson has indicated that conducting a assessment of this nature is time consuming,” a spokesperson informed CBC through e mail. 

“The College is assured they’re working diligently to finish their assessment and that the outcomes will likely be thorough.”