NDAs to hush up alleged sexual misconduct are under fire. 'I can't agree to this'

Ashley Chand spent more than a decade working her way up through the ranks of human resources and administration positions at some of Vancouver’s most prestigious law firms.

When she landed the job of director of administration at B.C.-based litigation firm Murphy Battista in November 2022, it was a dream come true, she says.

Until about a year later, when she was at the firm’s 2023 Christmas party. She says a senior lawyer approached her there and said, “You’re attractive, you’re young. You probably wouldn’t want to date a 58-year-old. Do you have any daddy issues?”

Chand complained to her bosses but says she was not satisfied with the firm’s handling of the matter. So she filed a lawsuit against the firm.

Murphy Battista offered to settle the matter with Chand if she signed what’s known as a non-disclosure agreement, or NDA. This kind of formal agreement usually offers benefits such as money and a positive letter of reference for another job in exchange for the complainant never discussing the matter with anyone. Sometimes the person is gagged from disclosing the existence of the settlement itself.

Chand refused to sign. She says she hasn’t worked in her profession since.

“I felt very strongly that it’s not OK to tell someone they can’t talk about this with their friends, family,” said Chand.

Chand’s story is part of a growing debate in Canadian legal circles over the use of non-disclosure agreements in cases of alleged sexual harassment and abuse.

NDAs are publicly discouraged by the country’s leading law association in harassment and abuse cases. Some provinces, as well as the federal government, have taken steps to remove NDAs as a bargaining tool in such disputes.

In Chand’s case, the firm investigated her complaint and concluded “the comments exchanged were not intended to be offensive or harassing,” said Gavin Marshall, a Vancouver lawyer representing Murphy Battista, in a written statement to the Investigative Journalism Bureau.

He said the firm later offered to hire an outside investigator but Chand took a leave of absence and eventually left the company.

As well, he said that “before Ms. Chand quit, the firm received a complaint from a different lawyer about her behaviour at the same Christmas Party.”

Chand says those allegations are “untrue” and “retaliatory.” And she calls her departure from the firm “constructive dismissal” — which refers to when an employer significantly alters working conditions, such as creating a hostile work environment, eventually forcing an employee to resign.

“I was scared to step back into that office,” she said. “They made it impossible for me to return to my position.”

Despite growing ethical and legal debate over NDAs, they remain widely used, leaving sexual harassment complainants like Chand with a stark choice: sign it in exchange for money and a reference letter or risk a high-stakes legal battle and potential career alienation.

“NDAs are rampant and victims, already traumatized, are highly pressured and coerced into signing NDAs in exchange for money,” said Toronto lawyer Kathryn Marshall, Chand’s current lawyer, who was hired after NDA negotiations failed in 2024. “They need to be banned … The only way we’re going to stop predators from abusing people is ensuring that their victims are not silent for life.”

Murphy Battista first responded to Chand’s complaint about the Christmas party incident in early January 2024.

In its statement to the IJB, Murphy Battista’s lawyer provided a different account of the Christmas party exchange.

It says the senior lawyer approached the DJ booth and said: “We want to play the song ‘I like Big Butts and I Cannot Lie.’ ” Overhearing this, Chand said to the lawyer: “Well, that would be inappropriate. I am HR, and if you play it, I could fire you,” the firm’s statement to the IJB reads.

In response, according to the firm’s statement, the senior lawyer said: “If you did fire me, could we date? I’m 55 and kind of too old.” Chand, who worked in a separate office from the lawyer and did not know him, laughed at that and both parties were joking, the firm’s lawyer says.

In a recent interview, Chand called that account of the incident false. “That’s not what happened. They seem to think that’s the truth. I don’t agree with his version.”

A February 2024 NDA draft agreement from Murphy Battista, obtained by the IJB, required Chand to keep the settlement terms in “strictest of confidence” from everyone “other than my legal and financial advisors and my spouse.”

When Chand pushed back on the NDA, emails from Murphy Battista’s lawyer said she was being “unhelpful,” that the situation was “utterly overblown” and that the firm has some of the province’s top trial lawyers who will “not back down from a lengthy and costly fight.”

The email made the firm’s position clear: “Release, confidentiality and non-disparagement is a term of any settlement that will be made.”

Chand says she was shocked at that response.

“This is a law firm that represents sex assault survivors. This is a law firm that has publicly posted about the harm NDAs cause … It is hypocrisy.”

Murphy Battista’s website does include criticism of NDAs in harassment settlements, including a 2022 column by one of its lawyers that called use of NDAs in the context of sexual cases “offensive.”

“Speaking publicly is important to some survivors because it gives them a chance to reclaim ownership and control over their own narrative,” the post reads. “Their stories help play an important role in shaping societal understanding and attitudes around sexual assault. They also help break down the isolation experienced by other survivors.”

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In March 2024, Chand demanded, through her lawyer, amendments to the draft NDA that would allow her to speak with her therapist and immediate family members.

A revised version of the NDA in October 2024 said Chand could only divulge details to her “legal and financial advisors, medical advisors, or such further persons as may be reasonably necessary for the sole purpose of applying for employment.”

“They were still restricting me from speaking to my family, the people who are my support network,” she said. “It was still so restrictive. That’s why I was like, ‘I can’t agree to this.’ ” And she never signed.

In the two years since leaving Murphy Battista, Chand says she has sent out dozens of résumés for positions she was qualified for in the legal industry. She’s only made it to the interview stage with three law firms. She is still looking for work, living on savings, she says.

“I feel the system is so broken where these institutions that you trust just have failed,” said Chand, whose lawsuit against Murphy Battista remains before the courts. “This is why women don’t speak up.”

Prince Edward Island is the only jurisdiction in Canada to fully restrict NDAs involving sexual misconduct allegations.

But there is growing debate in both the profession and provincial legislatures.

In 2023, the Canadian Bar Association passed a resolution opposing the use of NDAs in cases involving allegations of sexual misconduct, saying the agreements protect firms’ reputations at the expense of victims.

The B.C. arm of the Canadian Bar Association also recommended in 2024 that the provincial government adopt legislation banning the use of NDAs in all bullying and harassment complaints. B.C. is currently exploring what legislation it could put forward to educate the public as well as put in safeguards to prevent the misuse of NDAs.

Ontario has had a partial limitation on NDAs since December 2022 in cases of university faculty/student sexual misconduct. Corporations and other organizations, including law firms, remain free to use them in sexual misconduct settlements.

The Law Society of Ontario’s position on NDA use by legal institutions in sexual misconduct cases “engages considerations beyond the regulatory mandate of the Law Society,” it said in a statement.

The Senate is also currently debating a bill to prohibit any federal government entity from entering into an NDA in a harassment, violence or discrimination complaint unless it is at the request of the complainant.

Jennifer Mathers McHenry, a labour lawyer in Toronto, says a full ban on NDAs makes her uncomfortable. She prefers a “middle ground” that protects a victim’s right to choose an outcome that best serves their interests  — including the option of exchanging silence for money.

“I’ve seen [NDAs] protect predators more often than I would like, but I have also seen them give a victim of bad behaviour a way to move on,” said Mathers McHenry. “If they want to sign an NDA in exchange for X number of dollars because they need to pay their mortgage, that is a personal consideration.”

Speaking of persons accused of inappropriate behaviour, “A lawyer would be remiss to the point of neglectful of the interests of their client, to not negotiate terms of confidentiality in employment settings where unsubstantiated allegations of misconduct have been made,” said Gavin Marshall, the lawyer representing Murphy Battista in the Chand case.

Despite one in three female lawyers reporting sexual harassment at work, 75 per cent of incidents go unreported, according to a 2019 International Bar Association survey of nearly 7,000 respondents from 135 countries.

When female lawyers do file sexual harassment complaints, these remain largely unknown to the public.

Since 2023, IJB reporters have spoken with several female lawyers who signed NDAs and non-disparagement agreements after filing sexual impropriety complaints against colleagues. Most refused to go on the record, saying they feared reprisals for breaching the terms of those agreements.

“The legal profession itself is obviously one of the places where they are most polished and accustomed to hiding these kinds of behaviours in NDAs,” says Julie Macfarlane, a professor emeritus at the University of Windsor law school and cofounder of Can’t Buy My Silence , an organization dedicated to ending the use of NDAs in sexual misconduct complaints.

“The victim can’t speak about (what happened), but it also means that the perpetrator of the misconduct goes unknown, unidentified and can be passed to another workplace, which is what usually happens.”

The lawyer Chand complained about left Murphy Battista a few months after the 2023 Christmas party.

She says she remains concerned for women now working with him in his new position.

So, in addition to her civil claim against the firm, Chand also filed a complaint with the Law Society of B.C. (LSBC) in June 2025 against her former colleague that is still ongoing.

“I bring this complaint not only because of what happened to me, but because a lawyer engaged in inappropriate, sexualized conduct toward a senior employee faced no professional consequences,” wrote Chand to the LSBC in documents reviewed by the IJB.

“This is about professional accountability and protecting the public.”

Chand says she has no regrets about her decision to refuse the NDA Murphy Battista offered her.

“I have paid a heavy price,” said Chand.  “I can’t even put into words how this has affected me. But I stand by my decision.”

The Investigative Journalism Bureau (IJB) at the University of Toronto’s Dalla Lana School of Public Health is a collaborative investigative newsroom supported by Postmedia that partners with academics, researchers and journalists while training the next generation of investigative reporters.  

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