Bill 5 - Non-disclosure Agreements Act

BILL 5

Non-disclosure Agreements Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“abusive behaviour” means behaviour occurring on either a one-time or repeated basis that causes or that could reasonably be expected to cause physical, emotional or psychological harm to a person and includes the attempted, threatened or actual use of force against a person. (comportement de maltraitance)

“discrimination” means discrimination based on a prohibited ground within the meaning of the Human Rights Act. (discrimination)

“employer” means a person who employs an employee. (employeur)

“employee” includes (salarié)

(a) a partner,

(b) a director,

(d) an apprentice,

(e) a student, and

(f) a volunteer.

“harassment” means any objectionable or offensive behaviour occurring on either a one-time or repeated basis that is known or ought reasonably to be known to be unwelcome and includes sexual harassment, bullying, intimidation and any other conduct or comment that threatens the health or safety of a person. (harcèlement)

“legally responsible person” means a person who is or was under a legal duty to prevent or to respond to wrongful conduct or to respond to allegations of wrongful conduct. (personne légalement responsable)

“non-disclosure provision” means a provision that prevents a party (clause de non-divulgation)

(a) from disclosing information, or

(b) from making disparaging or negative remarks about another party.

“person” includes an unincorporated association and a trade union. (personne)

“person who has experienced wrongful conduct” means the person who has experienced, or who claims to have experienced, the wrongful conduct to which an agreement that contains a non-disclosure provision relates. (personne qui a subi une conduite transgressive)

“sexual harassment” means to engage in conduct set out the definition “sexually harass” in the Human Rights Act. (harcèlement sexuel)

“sexual violence” includes (violence sexuelle)

(a) abuse, assault or exploitation of a sexual nature,

(b) a sexualized threat or sexualized intimidation, and

(c) the distribution or threatened distribution of an intimate image as defined in the Intimate Images Unlawful Distribution Act, in relation to which a person has a reasonable expectation of privacy.

“terms of settlement” means, in relation to an agreement that contains a non-disclosure provision, (conditions de règlement)

(a) the amount of a payment made or payable under the agreement, and

(b) any other obligation undertaken under the agreement by

( i) a person who has engaged in or is alleged to have engaged in wrongful conduct, or

( ii) a legally responsible person.

Application

2 This Act applies to an agreement that contains a non-disclosure provision that is entered into, in whole or in part, in respect of wrongful conduct or an allegation of wrongful conduct.

This Act binds the Crown in right of the Province

3 This Act binds the Crown in right of the Province.

Wrongful conduct

4( 1) For the purposes of this Act, wrongful conduct consists of the following:

(a) abusive behaviour;

(b) discrimination;

(d) intimate partner violence;

(e) sexual violence;

(f) any other conduct prescribed by regulation; and

(g) a reprisal taken against a person for rejecting, objecting to, reporting or making a complaint about any conduct referred to in paragraph (a), (b), (c), (d), (e) or (f).

4( 2) Wrongful conduct may occur in person, by electronic means or by any other means.

Requirements for valid non-disclosure provision

5( 1) A non-disclosure provision is void unless it and the agreement containing the non-disclosure provision meet the requirements of this section and section 6.

5( 2) A non-disclosure provision applies only in respect of wrongful conduct that has occurred or is alleged to have occurred before the parties entered into the agreement.

5( 3) A non-disclosure provision must clearly set out the information that a party to the agreement is required to keep confidential.

5( 4) An agreement that contains a non-disclosure provision must be written in plain language and must specify the date the non-disclosure provision ceases to have effect.

5( 5) A person must not use undue pressure to persuade a person who has experienced wrongful conduct to enter into an agreement that contains a non-disclosure provision.

5( 6) A copy of this Act and the regulations, if any, must be attached to an agreement that contains a non-disclosure provision before it is entered into.

5( 7) Each party to an agreement that contains a non-disclosure provision must be provided with a signed copy of the agreement.

5( 8) If a person who has experienced wrongful conduct is not a party to an agreement that contains a non-disclosure provision but is required to keep information confidential under the agreement, the person must be provided with a signed copy of the agreement.

Review period

6( 1) This section does not apply to an agreement that contains a non-disclosure provision that only restricts the disclosure of the terms of settlement.

6( 2) Subject to subsection (3), a person to whom an agreement that contains a non-disclosure provision is presented is entitled to a review period of 30 days after the day the agreement is presented to the person to consider whether to enter into the agreement and to obtain independent legal advice about the effect of the non-disclosure provision, including advice on alternative means to protect the person’s confidentiality.

6( 3) If, before the end of the review period in subsection (2), the person to whom the agreement is presented notifies the person who presented it that more time is required to consider whether to enter into the agreement and to obtain independent legal advice, the review period is extended by 15 days.

6( 4) If a proceeding concerning the matter to which an agreement that contains a non-disclosure provision relates is before a mediator, arbitrator, court or tribunal that sets a time for the parties to consider whether to enter into the agreement and to obtain independent legal advice, that time replaces the review period in subsection (2) or the extended review period in subsection (3), as the case may be.

Waiver of review period

7( 1) A person to whom an agreement that contains a non-disclosure provision is presented may waive the review period referred to in section 6 if

(a) the person has received independent legal advice about the effect of the non-disclosure provision, including advice on alternative means to protect the person’s confidentiality, and a statement to that effect signed by the lawyer who provided the advice is included in or attached to the agreement or accompanies it,

(b) the agreement is in respect of a matter that is the subject of a proceeding before a court or tribunal, the person is represented in the proceeding by a lawyer or by another person who is authorized by law to represent the person in the proceeding and the lawyer or other person has advised the person about the effect of the non-disclosure provision, including advice on alternative means to protect the person’s confidentiality, or

(c) the agreement is in respect of a matter that is the subject of a complaint or proceeding under the Human Rights Act and the New Brunswick Human Rights Commission or the Labour and Employment Board, as the case may be, has assisted in entering into the agreement or has approved it.

7( 2) If a person waives the review period, the person’s review period ends on the day on which the waiver is made.

Certain provisions void

8 The following provisions of an agreement that contains a non-disclosure provision are void:

(a) a provision that requires a party to pay a sum of money to another party as a penalty or as liquidated damages for a breach or alleged breach of a non-disclosure provision;

(b) a provision that requires a party, immediately or automatically for a breach or alleged breach of a non-disclosure provision, to forfeit or repay all or part of the money paid or payable to the party under the agreement;

( i) provides that a party is entitled, or is presumed to be entitled, to an injunction or other equitable relief,

( ii) purports to remove or limit the discretion of a court to refuse to grant an injunction or other equitable relief, or

( iii) provides that a party waives the right to oppose an application for an injunction or other equitable relief;

(d) a provision that requires a party to pay, immediately or automatically, the costs and expenses, including legal fees, incurred by another party in enforcing or attempting to enforce a non-disclosure provision; and

(e) a provision that purports to make the law of a jurisdiction other than New Brunswick applicable to the agreement in circumstances in which the law of New Brunswick would otherwise apply.

Effect of void provisions

9( 1) The fact that a non-disclosure provision in an agreement is void under section 5 does not affect the validity or enforceability of a provision in the agreement that protects the confidentiality, including the identity, of a person who has experienced wrongful conduct.

9( 2) A non-disclosure provision that is void under section 5 or another provision that is void under section 8 does not affect the validity or enforceability of the other provisions of an agreement that contains a non-disclosure provision.

Permitted disclosures

10( 1) In this section, “party” includes a person who has experienced wrongful conduct even if the person did not sign the agreement that contains a non-disclosure provision.

10( 2) This section does not apply to a legally responsible person.

10( 3) Despite any provision of an agreement that contains a non-disclosure provision, a party to the agreement may disclose information that the party would otherwise be prohibited from disclosing under the agreement if the disclosure is made

(a) in circumstances in which the disclosure is required, protected or authorized by law,

(b) in the course of an investigation,

(d) for the purpose of obtaining health services or support, including mental health services or support and counselling services,

(e) for the purpose of obtaining social services, including victim support services,

(f) for the purpose of obtaining personal support or culturally specific services from any of the following persons if the party advises the person to whom the disclosure is made to keep the information confidential:

( i) a family member or close personal friend;

( ii) a religious or spiritual adviser; or

( iii) a community elder, leader or adviser,

(g) to a current or prospective employer of the party for the purpose of obtaining or maintaining employment, obtaining a workplace accommodation or explaining workplace behaviour or performance if the particulars of the wrongful conduct are not disclosed,

(h) to a person with whom the party has a relationship other than an employment relationship or with whom the party is seeking to enter into a relationship other than an employment relationship for the purpose of explaining behaviour, circumstances or performance relevant to that relationship if the particulars of the wrongful conduct are not disclosed,

(i) for the purpose of artistic expression if no other party to the agreement can be identified from the resulting work,

(j) to a person conducting research, for the purposes of the research, if the person agrees to keep the information confidential and no party to the agreement can be identified from the published results of the research, or

(k) for a purpose prescribed by regulation or to a person prescribed by regulation or a member of a class of persons prescribed by regulation for a purpose prescribed by regulation.

10( 4) Despite any provision of an agreement that contains a non-disclosure provision, a party to the agreement may disclose information related to a payment made or payable under the agreement, including, if necessary, the source of the funds, that the party would otherwise be prohibited from disclosing under the agreement if the disclosure is made

(a) for the purpose of obtaining legal, financial, accounting or investment advice and the person to whom the disclosure is made is required or agrees to keep the information confidential, or

(b) for the purpose of tax reporting or similar reporting.

Disclosure of terms of settlement

11 Subject to section 10, an agreement that contains a non-disclosure provision may include a provision that prohibits the disclosure of the terms of settlement.

No agreement after substantiated allegations

12( 1) A legally responsible person must not enter into an agreement that contains a non-disclosure provision with a person if an investigation into the allegation of wrongful conduct by the person to which the agreement would relate has already been carried out and the investigation has found the allegation to be substantiated.

12( 2) A non-disclosure provision in an agreement entered into in contravention of subsection (1) is void.

Disclosures by legally responsible person

13( 1) Despite any provision of an agreement that contains a non-disclosure provision, a legally responsible person is not prevented from

(a) reporting an allegation of wrongful conduct to a law enforcement agency,

(b) complying with a legal obligation under any act,

( i) an allegation, complaint or occurrence of wrongful conduct related to the legally responsible person, or

( ii) the legally responsible person’s policies and practices for preventing and responding to wrongful conduct,

(d) disclosing information respecting an allegation of wrongful conduct if the disclosure is reasonably necessary to provide an accurate response, made in good faith, to a request for information made

( i) by a current or prospective employer of the person who is alleged to have engaged in wrongful conduct for the purpose of determining or verifying whether that person is eligible or suitable for continuing or prospective employment with the employer, or

( ii) by another person for the purpose of determining or verifying whether the person who is alleged to have engaged in wrongful conduct is eligible or suitable to enter into a relationship with that person that is similar to the relationship that the person who is alleged to have engaged in wrongful conduct has or had with the legally responsible person, or

(e) disclosing information respecting an allegation of wrongful conduct if the legally responsible person reasonably believes that the disclosure is necessary to protect the mental or physical health or the safety of a person or a group of persons.

13( 2) A legally responsible person who discloses information under paragraph (1)(d) or (e) must inform the person to whom the information is disclosed

(a) of whether an investigation was carried out in respect of the allegation, and

(b) if an investigation was carried out, of the findings of the investigation.

13( 3) A legally responsible person who discloses information under subsection (1) must not disclose the identity of a person who has experienced wrongful conduct unless the person consents or the disclosure is required by law.

Rights, remedies and obligations preserved

14( 1) The rights and remedies under this Act are in addition to, and do not replace, another right or remedy available to a person, whether under another act, at common law or in equity.

14( 2) Nothing in this Act

(a) relieves a person, including a legally responsible person, from a legal obligation, or

(b) limits any right or remedy available to a person who has experienced wrongful conduct.

Regulations

15 The Lieutenant-Governor in Council may make regulations

(a) prescribing conduct for the purposes of paragraph 4(1)(f);

(b) prescribing purposes, persons or classes of persons for the purposes of paragraph 10(3)(k);

(c) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

(d) respecting any other matter that may be necessary for the proper administration of this Act.

Limited application to agreements that contain non-disclosure provisions entered into before commencement

16( 1) Subject to subsections (2) and (3), this Act does not apply to an agreement that contains a non-disclosure provision that was entered into before the commencement of this section.

16( 2) A non-disclosure provision in an agreement entered into before the commencement of this section does not apply in respect of wrongful conduct that is alleged to have occurred on or after the commencement of this section.

16( 3) Sections 10, 11 and 13 of this Act apply in respect of an agreement that contains a non-disclosure provision that was entered into before the commencement of this section as if the agreement had been entered into after the commencement of this section.