APTN's Unmuted Shows How NDAs are Used to Punish and Cover Up for Workplace Abuse

Government Departments and Public Sector Unions in Manitoba have both used NDAs to punish and silence people who faced campaigns of abuse after standing up for the right thing.

This investigative news documentary aired on Saturday, May 3 on APTN, the Aboriginal People’s Television Network.

I’m in it, talking about what happened to Dennis Smith - a conscientious inspector who worked at the City of Winnipeg Commercial Inspection department.

In a department where 20 people lost their jobs after a scandal where people were found to be slacking on the job, Dennis was one of the honest ones, and he paid a price for it: he was mobbed, abused, threatened, demoted, and targeted over his race.

When he fought back and had multiple grievances confirmed by third parties, he was told he would only get decent compensation if he agreed to lose his job and sign an NDA so he could never speak about it.

Being fired and silenced was the settlement the City and the Union offered him, when he had done nothing wrong. The union defended the people who were fired or who quit and took their cases to arbitration, but refused to do so for Dennis.

I had been working on Dennis’ case when I was still elected, but I was no longer an MLA when Dennis called me in July 2024 and asked me to go with him to attend a meeting with the City. He had been offered another settlement. CUPE 500 had cut a deal with the City, and Dennis was just going to have to accept it.

I attended the meeting. The union failed to show up. We told City officials we did not accept the offer. More nonsense ensued.

This has all been incredibly hard on Dennis, because he is a good man who takes his job seriously. He understands that commercial inspections are a matter of public safety, up to an including the safety of the public, firefighters or police in an emergency.

It has to be said, one of the worst things you can experience is the kind of corruption and moral bankruptcy where people in a position of authority who have been entrusted with public safety betray that trust.

These are all very legalistic, formal words, that don’t capture the brutality of these betrayals and harm that comes with them when they do the opposite of the whole reason they exist.

That’s true for police and the courts, but it’s also true of other areas of dispute resolution and justice.

A union’s purpose is to protect workers in conflicts with management: but there is a serious lack of effective, independent venues for workers in serious conflict with other workers. Even when there are not direct conflicts of interest, there are conflicts of loyalty.

Human beings are not just social, we are tribal, and organizations, to be organizations, have to have some shared code of solidarity. With unions, it is a core value, because solidarity is the source of their strength.

I was an elected official for five years, and was also the leader of the third party in Manitoba, the Manitoba Liberal Party.

One of the aspects of political work that people don’t know or hear about is “case work”. As a politician, you represent the people in your constituency, but you are also often approached by people from across the province because they could not get a hearing or help from their own MLAs or other parties.

Aside from “routine” cases where assisting people with applications, writing a letter or connecting them with the right department, there were also many cases that were incredibly difficult: the common thread was that people who had done nothing wrong and who were harmed were unable to get justice.

Some of these included people with disabilities and seniors who could not work and were in poverty, people whose families suffered or died due to medical errors. There were also victims of violent crime - assaults, sexual assaults, and the families who had lost loved ones. There were cases of harrassment and abuse that broke people, or left them scarred, while the perpetrators were protected or promoted.

That is why I knew Dennis and Marcel Williamson’s cases were not isolated.

When I first started encountering these cases, I struggled to understand how these things could have happened even once, only to discover that they had happened over and over again.

It turned out that organizations have developed a well-oiled systemic response to people who spoke up. It was like a production line - with the person who had been harmed facing the same treatment over and over.

Part of that treatment is “DARVO” - Deny, Attack, Reverse Victim and Offender.

It’s arguably the dominant mode of political expression in the world right now - Trumpism, combining MMA Trash talk with the callous life destroying smears of Roy Cohn.

However, it’s also practiced in a much less flamboyant fashion behind closed doors in many organizations, including unions.

When a someone, in good faith, reports an issue for investigation, instead of things proceeding as you would expect, if you were to file a complaint.

• Denial: The individual or the investigators deny that anything wrong happened

• Attack: The tables are turned on the person reporting the problem, and they are accused of wrongdoing and subjected to a campaign of harrassment and abuse

• Reverse Victim and Offender: The person who was doing the right thing is punished, and the perpetrator is protected, rewarded, or promoted.

What compounded these horrific injustices is that the people who had experienced them had often been pressured into signing a non-disclosure agreement (NDA).

No matter what scandal you have heard of, especially involving women and girls being sexually assaulted by powerful men, NDAs are involved. Sex abuse scandals where rape is covered up in every type of organization - entertainment, government, media, political parties, unions and every profession represented by a union, religious institutions, police and military and business.

No organization is immune, because these are all human organizations and all humans are fallible, therefore all human organizations are susceptible to corruption.

There are always conspiracy theories about who must have known - as if there is always a massive network of people who are in on the secret, when none of that is necessary when you have NDAs.

NDAs are why it is so hard to get these horrific stories to light.

If you can think of a high-profile predatory serial sex criminal working in a position of authority, and ask “how did they get away with that for so long?” the answer invariably involved NDAs.

That includes individuals like Harvey Weinstein, Jeffrey Epstein, Peter Nygard.

And in a world where people are very clearly worried about freedom of speech, freedom of the press and the ability to speak truth to power or expose corruption NDA’s are used routinely used for that purpose and many others.

The restrictions imposed by NDAs and non-disparagement agreements are incredible. They permanently restrict people’s capacity to make true statements about what happened to them to anyone except a police officer or a court. They can’t tell their employer, therapist or spiritual advisor.

After speaking with and collaborating with Julie McFarlane, I introduced a private member’s bill that would reform NDAs and restrict their use for their original purpose, which is the preservation of trade secrets and proprietary corporate knowledge.

The bill managed to make it through to committee stage, though the government clearly had no intention of passing it. They pushed it until the end of session, past the point it could be voted on by the house, ensuring it would die on the order paper.

One of the reasons why we pushed hard for the committee hearing was that we had determined that, because a legislative committee is considered a court of competent jurisdiction, that presenters on the bill would be able to break their NDAs.

Not only that, but because the person is being a witness during an official proceeding of government, they have the total freedom of speech that is known as parliamentary privilege: they can’t be sued for what they say. This “parliamentary privilege” is in Canada’s constitution and dates back to Britain in 1688.

I had a hunch that privilege applied at committee, but couldn’t remember why until many months later. Alan Cutler, the federal government bureaucrat who blew the whistle on what was called AdScam had told me about it.

This is the committee hearing - it’s five hours long, and every witness has something important to say. It was overwhelming to hear some of the heartbreaking and shocking stories.

It also felt like an incredible opportunity to make it possible for so many people who had been silenced and punished be free to speak without fear.

We re-introduced the bill with amendments the next year, but with an election, the goverment had no interest in passing it, stalling instead by asking the Manitoba Law Review Commission, who consulted with stakeholders - who happened to be some of the firms who represent unions in these matters.

The Canadian Bar Association has recommended these NDA reforms.

There are 20 witnesses who testified. One resulted in the Dean of the University of Manitoba Law School facing consequences for his rampant misuse of funds.

There were people from Manitoba, across Canada and the United States testifying at committee.

They included former Globe and Mail Journalist Jan Wong, who spoke about Peter Nygard’s use of NDAs; a former Fox News employee who spoke about Roger Ailes; A woman police officer from Ontario who had faced retaliation for raising the issue that her male colleagues appeared to be showing favour to their fellow officers who had allegedly assaulted their wives or partners; An Indigenous IT employee who worked in health care who was assaulted and abused at work; a teacher with severe allergies who warned a principal about the risks to her health, was disregarded and ended up being hospitalized. A woman whose entire career was derailed after she accurately reported that her manager had propositioned her; an executive from a national union who signed a one-sided non-disparagement contract, so that when she was falsely accused of stealing, she could not defend herself.

NDAs have enabled, and are currently enabling systemic corruption. They are being abused in ways that allow them to be used as a tool in punishing and silence people who have been doing right, while protecting those who have done wrong.

Signing an NDA as part of a settlement is often tied to a higher payout. It’s a pressure tactic, with a more generous offer if people agree to sign away their ability to speak about it.

The issue, right there, is the people paying up are doing so because they are making up for the real harm, financial and otherwise, for which they are responsible.

It’s not an exchange: the responsible party is not buying silence, they are paying a penalty.

The abuse of NDAs to support DARVO is endemic: the fact that it happens in unions just hows how far it has spread and how entrenched it has become.

What happened to Dennis at the City of Winnipeg is terrible. I applaud him for his courage in doing this. Marcel was brave too, and I have to say, they are not alone.

What has to happen is not complicated. People need to do the right thing. Take responsibility. Hold people to account. Make amends. Make up for the harm you’ve done.

For Dennis, I hope he’s made whole, as he deserves to be. Winnipeg City Hall has had plenty of embarassing scandals that have taken more than a decade for anyone to stary looking into. The Commercial Inspectors at the City of Winnipeg should be part of the inquiry looking into bribes over the construction of the Police HQ - the troubles in the commercial inspections department overlapped with the time when a series of scandalous payments were being made.

Of course, there is still a need for confidentiality around trade secrets and privacy, but not for concealing admitted wrongdoing.

We live at a time when there is real concern about free speech, about two-tier justice, about democracy, about a free press and about accurate information.

NDAs have been able to create a massive societal blind spot.

NDAs mean that people who know the truth can’t go public with their story. They cannot tell anyone. It cannot be shared on any media, mainstream, legacy, or new. They also cannot tell their own elected representatives.

As a consequence, nothing can change, and the people who’ve been hurt suffer in silence, because the rest of the world doesn’t know what’s going on.

Because the only people who really know the truth aren’t allowed to speak it.

There is no justification for using NDAs this way. We didn’t used to have them: they only really started to be used in the 1980s.

If we are all serious about restoring democracy, freedom and order, one of the ways we could do so is by ending what has become an odious practice, and a tool to silence people who have done nothing wrong.

This is compelled silence, backed up with a credible threat of sanction.

Passing NDA reform legislation should be a priority for every party. Institutionalizing cover-ups benefits no one.

If you agree, please consider sharing this article with others, writing your newspaper or radio station, or contacting elected your elected representative to consider NDA reform. They are a global scourge.

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