Good morning. When people hear “non-disclosure agreement,” they mostly think of cases of sexual harassment and discrimination, the #MeToo movement and the downfall of a certain Hollywood tycoon. But NDAs are also routinely used when settling consumer complaints, whether the dispute involves someone’s lifetime savings or trivial amounts. That’s in focus today, along with Manitoba’s unique style of fundraising.

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Hi, I’m Erica Alini, the personal economics reporter at The Globe, where I cover how the economy, regulations and corporate behaviour affect people’s finances.

I teamed up with my colleague, Mariya Postelnyak, The Globe’s consumer reporter, to look at the use of NDAs in a context that has received little attention so far: consumer disputes.

Companies in virtually every industry are regularly demanding that clients or customers sign confidentiality clauses as a condition of receiving compensation when reaching a settlement without going to court. With businesses eager to protect themselves from bad media coverage, negative social media posts or unflattering reviews, clauses that gag consumers have become part of the dispute-resolution template.

Our story features Canadians who’ve been asked to sign NDAs over complaints in which the stakes range from a few hundred dollars to hundreds of thousands.

For example, Kathleen Zimmerman from Brentwood Bay, B.C., was asked to sign an NDA over a little more than $400 after her then investment firm misplaced a charitable donation on her behalf. We also spoke to a woman in southwestern Ontario who was left with a crushing sense of injustice after she signed a confidentiality agreement to settle a case of financial mismanagement involving hundreds of thousands of dollars of her family’s savings.

The practice isn’t new, but transparency advocates say the use of NDAs in consumer matters has become too pervasive and expansive. For example, while clients used to be able to ask for extra compensation for agreeing to confidentiality, now a promise of silence is often a prerequisite to getting any money.

It’s also more common to see NDAs that attempt to impose confidentiality not only on an individual signatory but on their family and heirs.

And they are often now paired up with non-disparagement provisions, which prevent people from sharing anything that might damage a company’s reputation – even if it’s factually accurate. It’s a nebulous concept that can leave consumers vulnerable to firms’ subjective interpretation of what constitutes disparagement, some legal experts say.

Once a consumer signs an NDA, it is nearly impossible to legally challenge the terms. And there’s little recognition that some people are more vulnerable when it comes to “voluntary” contracts.

Critics say that, at worst, sweeping gag clauses allow companies to hide customer safety problems or other systemic issues from the public.

But there’s disagreement about how to handle the problem.

Jurisdictions in the United States and Canada have restricted the use of NDAs in cases of discrimination and sexual misconduct. When it comes to consumer issues, the U.S. introduced a federal ban in 2016 on gag clauses in standardized contracts that seek to prevent customers from sharing bad reviews.

In Canada, Alberta has a similar provision and British Columbia and Ontario have adopted comparable provisions, though those rules have yet to come into effect.

Some consumer advocates say consumer protection laws need to go much further in reining in gag clauses. Others, though, worry that blanket bans or overly restrictive limits on NDAs will make it harder for consumers to get compensation without turning to the courts, a lengthy and costly process that few people can afford and that often only makes financial sense when very large sums are at stake.

You’ll find more on that debate in our feature, along with the stories of four Canadians who signed or were presented with NDAs over consumer complaints. We also have a few tips about what to consider should you ever find yourself face to face with a confidentiality clause.

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