Ontario Addresses Staff Sexual Abuse Towards Students in Bill 26
On October 27, 2022, the Ontario government introduced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022 (“Bill 26”), which would amend the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005. Bill 26 will come into force on July 1, 2023 (if passed).
Bill 26 will provide measures for postsecondary institutions (“Institution”) to address sexual abuse of students by faculty and staff. Institutions are defined as publicly assisted universities or colleges of applied arts and technology. Bill 26 will also amend the Private Career Colleges Act, 2005, making similar amendments in relation to students enrolled at a career college.
Sexual Abuse by Employees
With respect to Bill 26’s amendments to the Ministry of Training, Colleges and Universities Act (the “Act”), there will be a new section called “sexual abuse by employees”, defining sexual abuse of a student by an employee of an Institution as physical sexual relations, and/or touching, behaviour or remarks of a sexual nature. Sexual abuse will include acts that are offenses under Canada’s Criminal Code, Human Rights Code, or acts of sexual abuse that are defined in the Institution’s sexual misconduct policy. Sexual abuse will also include any conduct by an employee that infringes on the student’s right to be free from a reprisal or threat of reprisal if the student rejects the employee’s sexual solicitation or advance. Sexual abuse under the Human Rights Code include unwelcome sexual solicitations or advancements made by a person in a position of authority who has the ability to grant or deny a benefit or advancement to the person.
Response to Sexual Abuse by Institution
If an employee of an Institution sexually abuses a student (as defined above), the Institution may discharge or discipline the employee for just cause and the employee will not be entitled to compensation as a result of the discharge or discipline, nor will they be permitted to be reemployed by the Institution. Arbitrators, arbitration boards or other adjudicators will be prohibited from substituting any other penalty for the discharge or disciplinary measure that was imposed by the Institution.
Institution’s Sexual Misconduct Policy
Institutions will be required to implement an employee sexual misconduct policy (the “Policy”) that complies with the amendments to the Act (and provisions in Bill 26). While Institutions may interpret and further define “physical sexual relations”, in the Policy, Institutions must (at a minimum) include their rules with respect to sexual behavior involving employees and students and provide examples of disciplinary measures the Institution may impose on employees who contravene the Policy. Institutions will also be expected to change how they approach discipline and discharge of employees as a result of sexual misconduct.
Conclusion
Bill 26 provides strong direction to Institutions to take steps to prevent sexual abuse of students by employees and address sexual abuse of students by employees. It is intended to provide protection to students and hold Institutions accountable for responding to sexual misconduct by its staff – a harm that continues to exist at universities or colleges in Ontario. By placing a positive (and proactive) obligation on Institutions to further define sexual abuse and list possible disciplinary action that will take place if it occurs, Bill 26 requires Institutions to recognize and address the power imbalance that is inherent in the employee/student relationship.
Institutions may require legal assistance or advice if staff and faculty are facing investigation or discipline for sexual abuse. Institutions may also require assistance in drafting policies and procedures that are fair and compliant with the new legislation. Contact us if you require legal assistance, advice or support.