Sexual Misconduct Legislation for Ontario Colleges and Universities Carries on Second Reading

Summary

On November 14, 2022, Bill 26 – Strengthening Post-secondary Institutions and Students Act, 2022, passed second reading in the Ontario legislature. If passed, Bill 26 will be effective on July 1, 2023, and will transform how post-secondary institutions and private career colleges address sexual misconduct by faculty and staff.

Bill 26’s key changes will be:

• Sexual misconduct will be defined as: (a) physical sexual relations with a student, including touching of sexual nature or behaviour or remarks of a sexual nature toward a student, or (b) reprisals or threat of reprisal for rejection of sexual solicitation and advances. The definition of sexual misconduct also encompasses acts that constitute an offence under the Criminal Code, acts that infringe the right to be free from a sexual solicitation or advance under the Human Rights Code, and acts that contravene an institution’s sexual abuse and misconduct policies.
• It would allow an institution to discharge and discipline an employee for an act of sexual misconduct. Sexual misconduct will constitute just cause for all disciplinary purposes, and the employee would not be entitled to notice of termination, termination pay, or any other form of compensation or restitution. An adjudicator can’t substitute the penalty imposed by the institution.
• It would prevent an institution from rehiring an employee who was discharged or who resigned after they were found to have committed sexual misconduct.
• It would prevent institutions from entering into agreements, including collective agreements or settlement agreements, which preclude the institution from disclosing that an allegation has been made that an employee of the institution committed an act of sexual misconduct toward a student of the institution. The Bill’s latest version provides for an exception to this prohibition in cases where a student requests a non-disclosure agreement and: (a) the student had an opportunity to receive independent legal advice, (b) there have been no undue attempts to influence the student with respect to the request, (c) the agreement includes an opportunity for the student to waive their own confidentiality in the future and the process for doing so, and (d) the agreement is of a set and limited duration.
• It would require all institutions to have an employee sexual misconduct policy, whether a standalone policy or as part of another policy. This policy must specify the institution’s rules about sexual behavior between employees and students. It must also include examples of potential disciplinary measures. The policy may specify what kind of conduct amounts to sexual misconduct.

Major points

Bill 26 will have important implications for post-secondary institutions and private career colleges in Ontario. They will have to review and adjust their policies to ensure compliance with the new provisions. The Bill will also affect their approach to employee discipline and discharge for sexual misconduct, and how such cases are litigated. Following the proposed changes, the only issue in any ensuing litigation would be whether the institution has proven sexual misconduct.

If you have any questions, please contact a member of our team.

Special thanks to Anton Rizor for his assistance with this blog.