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| Maciej Lipinski |
History, context
Post-secondary institutions in Ontario will already be familiar with other recent legislation establishing new requirements for addressing sexual misconduct on campus:
- In 2016, Ontario’s Sexual Violence and Harassment Plan Act required Ontario’s universities and colleges to put policies in place to address sexual violence involving students, including processes for responding to these incidents.
- In March 2022, new regulations required that when a student reports an incident of sexual violence in good faith, they should not be disciplined under a college or university’s drug and alcohol policies.
Bill 26 now turns the focus toward addressing sexual misconduct perpetrated by employees against students.
Though limited, the statistics on such incidents are concerning. According to one research report from the United States, one in 10 female graduate students at major research universities reported having experienced sexual harassment from a faculty member. This research also noted that even when incidents of such sexual misconduct by faculty toward students were reported and verified, the use of non-disclosure agreements and limited information-sharing between post-secondary institutions was known to result in harassers being rehired at a different institution and repeating the misconduct — characterized as “pass-the-harasser” incidents.
As stated by Ontario’s minister of colleges and universities on the occasion of the Ontario government’s third reading of Bill 26, “no student in Ontario can reach their full potential unless they are safe on campus and feel safe on campus. Our government believes that everyone should be able to pursue their studies on- or off-campus without having to worry about sexual violence, harassment or misconduct.”
New requirements coming into effect in July 2023
There are three key changes coming into effect for Ontario’s post-secondary institutions in July 2023:
1. Terminating employees: Staff members found to have engaged in sexual misconduct towards a student may be terminated for just cause without being entitled to notice of termination or pay in lieu of notice, and would be prohibited from being rehired by the same institution. “Sexual misconduct” is a defined term that includes offences under the Criminal Code (e.g., sexual exploitation of a minor), breaches of protections against sexual solicitation under the Ontario Human Rights Code and any other act that the post-secondary institution defines as “sexual misconduct” in its sexual misconduct policy.
2. Sexual misconduct policy: Post-secondary institutions must ensure they have a sexual misconduct policy in place that, at a minimum: (i) sets out rules with respect to sexual behaviour involving employees and students; and (ii) provides examples of disciplinary measures that may be taken toward employees who contravene the policy. As described above, such policies may also be used to broaden the definition of “sexual misconduct” that would justify the termination of employees for just cause.
3. Use of non-disclosure agreements: The ability to use non-disclosure agreements when addressing instances of sexual misconduct will now be limited to only those circumstances where a student requests such an agreement, the agreement has a limited duration, and measures are in place to ensure the student has legal advice, has not been unduly influenced, and can opt to waive their own confidentiality in the future.
Next steps for colleges, universities
With the July 2023 deadline quickly approaching, Ontario’s post-secondary institutions should be assessing their policies and processes now to ensure compliance.
Some key questions to consider include:
- Are there existing policies and processes in place that address sexual misconduct by staff?
- What forms of sexual misconduct will the institution prohibit under its policy?
- Does the institution have a practice of using non-disclosure agreements?
Compliance with Bill 26 calls for consideration of issues such as due process, good governance and employment and labour law obligations. For post-secondary institutions currently in the planning and review process, ensuring long-term compliance and obtaining sound advice are key to navigating these new requirements while reinforcing the values and mission of universities and colleges as safe and inclusive places to learn.
Maciej Lipinski is a senior associate, employment and labour, at KPMG Law LLP. He can be reached at maciejlipinski@kpmg.ca.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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