5th Session, 42nd Legislature
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THE NON-DISCLOSURE AGREEMENTS ACT
|Table of Contents||Bilingual version (PDF)||Explanatory Note|
(Assented to )
HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
1 The purpose of this Act is to restrict or prohibit the use of non-disclosure agreements as they relate to claims of harassment and discrimination.
2(1) The following definitions apply in this Act.
"complainant" means a person who has, or alleges to have, experienced harassment or discrimination. (« plaignant »)
"discrimination" means discrimination as defined in The Human Rights Code. (« discrimination »)
(a) a course of abusive or unwelcome conduct or comment that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to a person;
(b) a series of objectionable and unwelcome sexual solicitations or advances;
(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance. (« harcèlement »)
"non-disclosure agreement" means an agreement between a complainant and a respondent that prohibits or restricts a complainant from disclosing information concerning harassment or discrimination, or alleged harassment or discrimination, that the complainant experienced. (« accord de confidentialité »)
"respondent" means, as the case may be,
(a) a person who committed or is alleged to have committed harassment or discrimination against the complainant; or
(b) a responsible party. (« intimé »)
"responsible party" means a person who has a legal obligation to take reasonable steps to terminate harassment and discrimination in the place where harassment or discrimination occurred or is alleged to have occurred. (« partie responsable »)
2(2) For certainty, "non-disclosure agreement" includes a non-disparagement agreement if the purpose or effect of the agreement is to conceal details about harassment or discrimination, or alleged harassment or discrimination, that a complainant experienced.
VALIDITY AND ENFORCEABILITY OF NON-DISCLOSURE AGREEMENTS
Requirements for validity and enforceability
3(1) To the extent that a provision of a non-disclosure agreement prohibits or restricts a complainant from disclosing information concerning harassment or discrimination, or alleged harassment or discrimination, the provision is invalid and unenforceable unless
(a) it was the expressed wish and preference of the complainant to enter into a non-disclosure agreement;
(b) the complainant had a reasonable opportunity to receive independent legal advice, including advice about
(i) entering into the agreement, and
(ii) the terms and conditions of the agreement;
(c) there were no undue attempts to influence the complainant in respect of the decision to enter into the agreement;
(d) the complainant's compliance with the agreement will not adversely affect
(i) the health or safety of a third party, or
(ii) the public interest;
(e) the agreement includes an opportunity for the complainant to waive, by following a process set out in the agreement, the provisions of the agreement that prohibit or restrict the disclosure of information about harassment or discrimination or alleged harassment or discrimination; and
(f) the agreement is of a set and limited duration.
Non-application — previous agreements
3(2) Subsection (1) does not apply to a non-disclosure agreement that was entered into before this Act comes into force.
Invalid and unenforceable provisions — communication
4 A provision of a non-disclosure agreement is invalid and unenforceable to the extent that it prohibits or restricts
(a) a party to the agreement from disclosing information protected or required under The Employment Standards Code, The Human Rights Code, The Workplace Safety and Health Act, or any disclosure protected or required under another enactment or an Act of Parliament;
(b) the complainant from engaging in artistic expression that does not identify
(i) another party to the agreement, or
(ii) the terms of the agreement; or
(c) the complainant from communicating information concerning the harassment or discrimination, or the alleged harassment or discrimination, to
(i) a person whose duties include the enforcement of an enactment or an Act of Parliament, with respect to a matter within the person's power to investigate,
(ii) a person authorized to practise law in Canada,
(iii) a physician, psychologist or psychological associate, registered nurse or nurse practitioner, or registered social worker, authorized to practise in Canada,
(iv) a person who provides victim services under The Victims' Bill of Rights,
(v) a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the complainant,
(vi) the Ombudsman,
(vii) the Advocate for Children and Youth,
(viii) a friend, a family member or personal supporter as specified or approved in the non-disclosure agreement, or
(ix) a person or class of persons specified in the regulations.
Invalid and unenforceable provisions — employment history
5 A provision of a non-disclosure agreement arising from a complainant's previous employment is invalid and unenforceable to the extent that it prohibits or restricts the complainant from disclosing that they entered a non-disclosure agreement in respect of their previous employment if the complainant
(a) does not disclose the particulars of the harassment or discrimination that occurred or is alleged to have occurred during their previous employment; and
(b) makes the disclosure as part of providing information about their employment history for the purposes of obtaining new employment.
Prohibition on entering non-compliant agreement
6 A respondent must not enter into an agreement that does not comply with sections 3, 4 and 5.
Disclosure of amount may be prohibited or restricted
7(1) Except as provided in subsection (2), this Act does not apply to a provision in a non-disclosure agreement prohibiting or restricting the disclosure of an amount paid to the complainant.
Exception — permitted disclosures
7(2) Despite any of its terms, a non-disclosure agreement does not prohibit a complainant from disclosing the amount they were paid to a person identified in section 4.
AGREEMENTS PREVENTING INVESTIGATION
8(1) A responsible party must not enter into an agreement with a person who committed or is alleged to have committed harassment or discrimination for the purpose of preventing or interfering with a lawful investigation into a complaint of harassment or discrimination.
Agreement invalid and unenforceable
8(2) If a responsible party enters into an agreement contrary to subsection (1), any provision of the agreement that has the effect of preventing or interfering with a lawful investigation into a complaint of harassment or discrimination is invalid and unenforceable.
9 A non-disclosure agreement must use language that is clear and understandable.
10 A respondent who contravenes this Act is guilty of an offence and is liable on conviction to a fine of not more than $10,000.
11 The Lieutenant Governor in Council may make regulations specifying persons or classes of persons for the purpose of subclause 4(c)(ix).
C.C.S.M. REFERENCE AND COMING INTO FORCE
12 This Act may be referred to as chapter N91 of the Continuing Consolidation of the Statutes of Manitoba.
13 This Act comes into force 90 days after it receives royal assent.