Most recently, Bill 26 – or the Strengthening Post-secondary Institutions and Students Act, 2022 – received royal assent. Besides effecting the legal name change of the former Ryerson University to the now Toronto Metropolitan University, Bill 26 makes several important amendments to existing post-secondary legislation as it relates to sexual misconduct toward students by employees. Post-secondary sector employers must take note of the legislative changes created by this Bill, as there are several new rules and requirements that will be coming into effect this summer.
Overview of Amendments
Bill 26 amends the Ministry of Training, Colleges and Universities Act primarily to add a new section setting out rules respecting sexual misconduct toward students by employees of publicly-assisted universities and colleges of applied arts and technology, and to address related matters.
Bill 26 similarly amends the Private Career Colleges Act, 2005 to add a new section setting out rules respecting sexual misconduct toward students by employees of private career colleges, and to address related matters.
What is Sexual Misconduct?
Bill 26 defines “sexual misconduct” as meaning, in relation to a student of an institution:
A. physical sexual relations with the student, touching of a sexual nature of the student or behaviour or remarks of a sexual nature toward the student by an employee of the institution where,
i. the act constitutes an offence under the Criminal Code of Canada,
ii. the act infringes the right of the student to be free from sexual solicitation or advance under the Ontario Human Rights Code, or
iii. the act constitutes sexual misconduct as defined by the institution’s employee sexual misconduct policy or contravenes the policy or any other policy, rule or other requirement of the institution regarding sexual relations between employees or students, or
B. any conduct by an employee of the institution that infringes the right of the student to be free from reprisal or threat of reprisal for the rejection of a sexual solicitation or advance under the Ontario Human Rights Code.
Discharge or Discipline for Sexual Misconduct
Bill 26 provides that if an employee of an institution commits an act of sexual misconduct toward a student, the institution may discharge or discipline the employee for that act. Bill 26 also provides that in such circumstances:
- the discharge or disciplinary measure will be deemed to be for just cause for all purposes,
- the employee will not be entitled to any notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure, and
- despite subsection 48(17) of the Labour Relations Act, 1995 and subsection 14(17) of the Colleges Collective Bargaining Act, 2008, and despite any provision of a collective agreement or employment contract specifying a penalty for the infraction, no arbitrator, arbitration board or other adjudicator will be permitted to substitute any other penalty for the discharge or disciplinary measure imposed by the institution.
This effectively limits employees’ right to appeal a discharge or other disciplinary measure imposed by the institution in response to sexual misconduct.
Re-Employment of Employees Who Have Committed Sexual Misconduct
Besides giving institutions the final say on the matter of discipline and discharge for sexual misconduct, Bill 26 states that employees who have committed an act of sexual misconduct toward a student and who have accordingly been discharged or resigned cannot subsequently be re-employed by the institution.
Furthermore, Bill 26 specifies that if an institution determines that it has re-hired an employee contrary to this prohibition on re-employment, it must discharge the employee and the amendments on discharge or discipline for sexual misconduct discussed above will apply to the discharge.
Bill 26 implements a new statutory prohibition on non-disclosure agreements (or “NDAs”) in the context of sexual misconduct in the post-secondary sector. More specifically, Bill 26 states that an agreement between an institution and any person, including a collective agreement or an agreement settling existing or contemplated litigation, that is entered into on or after July 1, 2023 must not contain any term that, directly or indirectly, prohibits the institution or any person related to the institution from disclosing that an allegation or complaint has been made that an employee of the institution committed an act of sexual misconduct toward a student of the institution, and that any such term that is included in an agreement is void.
That being said, Bill 26 does contain a limited exception to this prohibition in respect of student-requested NDAs; however, for the exception to apply, the student must have had a reasonable opportunity to receive independent legal advice, there must not have been any undue attempts to influence the student with respect to the request, the agreement must include an opportunity for the student to waive their own confidentiality in the future and the process for doing so, and the agreement must be of a set and limited duration.
Notably, Bill 26’s provisions on NDAs apply despite any contrary term in an employment contract or collective agreement, or any contrary rule or principle of common law or equity.
Sexual Misconduct Policy
As alluded to in the definition of “sexual misconduct” above, Bill 26 creates a new requirement for institutions to create a sexual misconduct policy. This policy may be a stand alone policy or may be included as part of another policy, such as the sexual violence policy already required under the applicable post-secondary legislation.
The sexual misconduct policy must include, at a minimum, the institution’s rules with respect to sexual behaviour that involves employees and students of the institution, and examples of disciplinary measures that may be imposed on employees who contravene the policy. Although it is not a requirement, the policy may also specify acts that constitute sexual misconduct for the purposes of the definition of “sexual misconduct”.
In Our View
Post-secondary sector employers must ensure that they are compliant with the amended rules and requirements of the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005 on sexual misconduct by no later than July 1, 2023, when these provisions are set to come into effect.
For more information, please contact Mélissa Lacroix at 613-940-2741.