NDAs: How a legal document designed to protect trade secrets has morphed into a tool to silence survivors

KELOWNA -

Susan MacRae never thought that at the age of 55, she would have to rely on her mother to be her voice: “As an adult …I can't believe that I'm at this age and I still cannot say all of my experiences,” she told W5.

Sitting in her mother’s home in Kelowna, B.C., Susan is legally barred from sharing details about what happened to her as a child. She signed away her voice 25 years ago when she put her signature on a non-disclosure agreement as part of a settlement in a civil suit against her own father.

A non-disclosure agreement is a legal document that limits the sharing of allegations in the public realm. In Susan’s case, her NDA legally prevents her from sharing any of her alleged experiences in public.

When Susan’s father passed away in 2015, she thought her NDA would die with him, but she was wrong. Susan went to 23 different lawyers to try to have the legal document lifted, to no avail.

Susan Macrae, who put her signature on a non-disclosure agreement as part of a settlement in a civil suit against her own father, speaks with W5. “It's kind of the legal system now keeping me silent, which makes no sense. It feels like I can't move forward…and it feels a bit frozen like a part of me is frozen,” she said.

Susan shared her traumatic experience with her 83-year-old mother Marie, well before the NDA was signed. Now Marie is sharing that family secret, speaking out on behalf of her daughter, exposing not only Susan’s allegations of sexual abuse, but also lobbying members of parliament across the country to legislate an end to the so called “hush money” agreements.

“I'm doing this not just for my daughter, but for people; victims who do not have the support,” Marie told W5.

Non-disclosure agreements were first used in the 1980s to prevent employees from taking trade secrets from one business to another. Now they’ve become ubiquitous in civil cases across North America and are standard conditions of settlement in cases ranging from workplace terminations, product liability, and sexual abuse or harassment allegations, even in racial or gender discrimination cases.

NDAs are the secret weapon that have protected disgraced movie mogul Harvey Wienstein and convicted sex offender Jeffery Epstein. But there is a growing movement to end the overuse of NDAs. Canadian lawyer Julie Macfarlane is one of the founders of an advocacy group called Can't Buy My Silence - A Global Campaign.

“NDAs began in the 1980s with the tech bubble,” she told W5. “Now apparently every form of misconduct is a trade secret…and it's just become a gradual creep…and we are seeing non-disclosure agreements, some lawyers estimate in around 95 per cent of all civil settlement agreements.”

Julie Macfarlane helped draft groundbreaking legislation that puts Canada on the world stage when it comes to limiting the use of NDAs (W5)Macfarlane helped draft groundbreaking legislation that puts Canada on the world stage when it comes to limiting the use of NDAs.

“We now see the first piece of legislation banning NDAs in Canada being passed in Prince Edward Island, Canada's smallest province. But small is mighty in this case,” she said. Macfarlane says B.C., Manitoba and Nova Scotia are now studying the groundbreaking legislation.

Susan MacRae felt silenced by childhood trauma, and then coerced into silence as an adult when she signed the NDA 25 years ago.

“The whole process would have ended right there if I hadn't signed that document. Even as a child, I knew that there was never going to be any justice. That's why I stayed silent as a child.”

“Hush Money” airs Saturday at 7pm local on CTV