Non-Disclosure Agreements Exploit Litigants
Plus: Library Project Final Report
And: more on "Struggling for Accommodation"

Buying Silence With a Bluff
How NDAs Exploit Litigants, With and Without Counsel

Written by NSRLP Director Dr. Julie Macfarlane; originally published on Slaw, Canada’s online legal magazine.

The ever-growing use of non-disclosure agreements (NDAs) prevents those who sign from being able to “disclose” their experiences of reprehensible workplace discrimination. NDAs routinely silence the victims of sexual harassment, racism, bullying, and discrimination (among many other examples: for being pregnant, or requiring mental health leave, etc.).

Of questionable legality, NDAs are routinely demanded by defence lawyers in settlement negotiations. A gag on the victim is an obvious, albeit immoral, “ask” for legal representatives of alleged or actual perpetrators. They don’t want their reputation as a racist or a sexual harasser or a bully following them around, do they?

If your initial reaction is, “Why would employers want an NDA that gags both sides?” think “scandal,” and “image management.” And, of course, the reality that anyone leaving after complaints of this nature has very likely been doing this for years with earlier complaints falling on deaf management ears.

[...]

Self-represented litigants and NDAs  

Many of those who have been victimized in their workplaces have no access to affordable counsel. Trade unions could help here, but are still trying to figure out what they should do when both victim and harasser/abuser are members. This left me as an SRL for a while when my union and my employer both refused to offer me assistance. In my personal experience and that of other women in sex abuse/harassment cases these situations have been resolved by siding with the male member – leaving many victims of harassment and discrimination without assistance...

Read the full article

Final Report for "Family Law at the Library"

From summer 2018 to fall 2020 we had the opportunity to run a pilot project, Family Law at the Library: Mobilizing the Potential of Public Libraries to Serve Self-Represented Litigants, generously funded by the Law Foundation of Ontario.

We partnered with local (Southwestern Ontario) public libraries to provide support, workspace, curated and custom-made resources, and educational programming for family SRLs. This was underpinned by training for library staff on the challenges faced by family SRLs and the types of assistance and resources that can help them; the entire project was promoted by marketing efforts aimed at family SRLs, to encourage them to make use of public libraries for support and legal information. Although we faced the unexpected challenge of the COVID-19 pandemic, we were able to adapt the project (with the support and flexibility of the LFO), and are very pleased with the success of our various initiatives. Our “Lawyer in the Library” program was a particular success. We used this pilot period to develop best practices in the delivery of these initiatives, which have been gathered into a final report, in the hopes that this can be used to duplicate the project at other public library systems across Canada.

We were able to generate, in the two-year pilot period, an excitement about and growing commitment among library staff and the local community to the project. Our vision continues to be that family SRLs will be welcomed at their local library, that they can find assistance from trained librarians who understand their challenges, access useful resources, and utilize workspace and equipment. We hope to move forward with these initiatives in the future in other public library systems in Ontario and Canada.

Read the Final Report Here

Update on our work advocating for
SRLs with cognitive disabilities

Struggling for Accommodation

NSRLP research assistants Silvia Battaglia and Shannon Meikle recently conducted interviews with Ontario SRLs who have cognitive disabilities (brain injuries, PTSD, information processing challenges, etc.), sometimes described as "invisible disabilities."
We knew from our original 2013 SRL Study, as well as our work since, that members of this population face even greater challenges compared to other SRLs, yet are often forced to proceed without assistance or accommodation, and continually confront ignorance and lack of empathy around their condition. 

There is widespread lack of knowledge about court accommodations processes, which are intended to provide privacy and pre-determine necessary accommodations for individual litigants (explained in our recently updated Primer for Persons with Disabilities). Since the pandemic closed the courthouses, we have been hearing from persons with cognitive disabilities who have described having to bring a motion asking for accommodation, share private medical information in open court, and then be forced into an adversarial process to argue for help.  

The interviews Silvia and Shannon conducted reveal that almost all SRLs seeking accommodation for cognitive disabilities are not aware of the accommodations process in Ontario, and instead bring motions (usually unsuccessfully). Last week this data was presented by NSRLP Director Julie Macfarlane to the Ontario Courts Accessibility Committee, who have agreed to speak with the Ministry of the Attorney General about more effective public messaging and signposting, both now and when courthouses reopen. The full data set is being written into a report by Silvia and Shannon, and will be available in the fall. 

Finally, our podcast released last week featuring clips from the interviews (recorded with permission) gives fascinating and shocking insight into the experiences of people with cognitive disabilities in our courts.