Women who signed NDAs with UPEI 10 years ago break their silence, call for permanent release

Two women who signed non-disclosure agreements with the University of Prince Edward Island a decade ago are speaking out, asking that the institution permanently release them from the threat of a lawsuit for speaking about their experiences.

CBCNews isn't naming the two women because of the confidentiality agreements, commonly referred to as NDAs.

Both came forward with complaints of sexual harassment against the university's former president in 2012. Eventually they took those complaints to the P.E.I. Human Rights Commission before reaching agreementon settlements and signing NDAs with the university in June 2013.

This week a lawyer representing the two women provided CBCNews with a written statement on their behalf. The lawyer said the women are not prepared to take part in an interview at this time.

In the statement, the two women said the university offered them temporary releases from their NDAs to take part in the recent review of UPEI conducted by the firm Rubin Thomlinson.

"We were completely willing to participate in the review and investigation process and to provide evidence," the statement says. "But we were only prepared to do this if we were given permanent release from our NDAs."

The temporary release the university offered, the statement continues, "does not give silenced victims their voice; rather, a temporary release gives the victim's voice to those who ultimately control and shape the report.

"The temporary release then re-silences victims who have no opportunity to speak to the way their story might be represented or excerpted or redacted in the report."

Toronto-based law firm did investigation

UPEI engaged theRubin ThomlinsonLLP the same Toronto-based law firm that conducted a workplace investigation at CBCNews after the firing of radio host Jian Ghomeshi to conduct a review of harassment, discrimination and fair treatment processes at the university after a fresh allegationof misconduct was brought forward against former president Alaa Abd-El-Aziz in 2021.

In the terms of reference for the review, UPEI also asked the firm to consider "whether the university can and should take steps to have individual complainants released from their obligations under NDAs entered in respect of allegations of harassment or discrimination."

There's no specific recommendation in the redacted version of the report that was released to the public specifying whether UPEI should permanently release those with whom the university has signed NDAs.

But Rubin Thomlinson made it clear in its report its belief that "in 2023, it is entirely inappropriate for anyone, and in particular, an institution of higher learning, to insist upon the use of an NDA in relation to the facts underlying a claim of harassment, discrimination, or sexual violence."

The report continues: "The events that happened to the survivor[s] are their story and it is part of their personal agency to be able to control when, or if, they disclose the facts of their abuse to anyone else."

UPEI saysit has already released complainants

In a statement sent to CBCNewson Friday, UPEI said "individuals with whom the university had a non-disclosure agreement were released from the terms of their agreement for the purposes of participating in the review process. The only case where a release agreement could not be secured involved three parties: the complainants from 2013, the university, and the former president. The former president did not agree to the release."

UPEI said it offered legal protection to the complainants to indemnify them against the possibility of being sued by Abd-El-Aziz but on a temporary basis, "for the sole purpose of allowing them to participate in the investigation and the review process."

In the statement sent Friday, UPEI didn't respond to questions from CBC on whether it had released anyone on a permanent basis from their NDAs, and if not, why.

But in another statement sent Tuesday, UPEI said it had released the two women from their NDAs, and said "this was not limited only to their participation in the investigation and review."

However, the university again said its offer to indemnify the complainants against a potential suit from Abd-El-Azizwas on a limited basis, "so that they could participate in the investigation and review."

Emma Phillips, counsel to one of the two complainants, said UPEI's suggestion it had released the women from their NDAs "is simply inaccurate."

Phillips said there was an offer from the university to that effect, but it was never followed up.

"Even when the complainants then brought a legal action seeking to be released from their NDAs, the university took the position that they should only be released for the purposes of participation in the review," Phillips said via email.

"It is hard to understand how the university can now claim that they were willing to permanently release the complainants all along."

Had the university agreed to release us from the stranglehold of the NDAs, we believe this information would have been highly relevant...Statement from two 2012 complainants at UPEI

According to its report, Rubin Thomlinson received documentation from the university from 29 NDAs it entered into between 2012 and 2021, including six which mentioned a human rights complaint or a complaint filed through the university's fair treatment office.

On Tuesday, the university clarified that that number does not include the two complainants who issued the statement.

Investigators said they eventually were able to speakto 13 people who signed NDAs with the university.

Complainants take issue with board chair

In the statement sent by their lawyer this week, the two 2012 complainants also said they're "concerned" about a comment UPEIBoard of Governors chair Pat Sinnottmade ina June 12interview with CBCNews.

When asked how much he thought it might have undermined the findings in the Rubin Thomlinson review to not have the two women take part, Sinnott responded: "I don't think it impacted the broadly based review one iota."

"We disagree," the statement says.

The women suggest their experiences in bringing their complaints forward "including the lack of avenues for complaint, the denial of institutional accountability, and the deeply harmful retaliation are completely relevant to this review."

"Had the university agreed to release us from the stranglehold of the NDAs, we believe this information would have been highly relevant to [the investigator's] conclusions about the university's own institutional failures to better prevent and protect against sexual harassment."

In the statement sent by UPEITuesday, acting president Greg Keefehad this to say: "While the complainants' participation in the broader review had less of an impact on that process, given the high number of people who provided meaningful feedback, their decision not to participate in the investigation into the allegations of the former president was a loss."

In the report, the authors said they had been unable to determine whether Abd-El-Aziz engaged in repeated sexual misconduct because of the NDAs.

Couldn't insist promises kept

In the statement, the women also suggested their agreements with UPEI included "remedies that are intended to bring about changes in institutional policies and culture," but that because of the NDAs, "we weren't able to speak out and insist that the university keep its promises."

"After more than a decade of being silenced and of the university putting its own institutional interests ahead of ours and of the other members of the university community we believe that the university has an obligation to allow us to share our voices and our stories," the women said in their statement.