By Barry W. Kwasniewski

Legislation has been tabled by the Ontario government to instruct post-secondary institutions on dealing with employment issues that stem from incidents of sexual abuse of students. On October 27, 2022, Bill 26, or the Strengthening Post-secondary Institutions and Students Act, 2022 (“Bill 26”) was introduced. Bill 26 aims to amend both the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005, by determining steps institutions that are governed by these acts can take when an employee is found to have committed sexual abuse towards a student.

Bill 26 would add a definition of sexual abuse, which includes sexual contact, behaviour or remarks towards a student that falls afoul of either the Criminal Code, the Human Rights Code (specifically, reprisals or retaliation for denial of sexual advances) or the specific institution’s sexual misconduct policy.

If an individual is found to have committed an act of sexual abuse under one of these codes, the employer institution can discharge or discipline them on the grounds of “just cause”. The employee does not receive the benefit of statutory or common law “notice of termination or termination pay or any other compensation or restitution”. Bill 26 would override the Labour Relations Act, 1995, the Colleges Collective Bargaining Act, 2008 and any relevant collective agreements or employment contracts in this regard. Further, labour arbitrators would be prohibited from substituting any other penalty for the discharge or disciplinary measure imposed by the employer institution.

If an employee were discharged under the amended legislation (or resigns as a consequence of sexual abuse committed against a student), they would not be eligible for reemployment with the institution which employed them when the abuse was committed. Institutions would have a positive duty to discharge employees if they have been wrongfully rehired.

Collective agreements, employment contracts, and agreements settling ongoing or prospective litigation that are entered into if Bill 26 comes into force will be barred from having provisions that would disallow the public disclosure of sexual misconduct by an employee and subsequent arbitration of the matter.

Post-secondary institutions would be required to have comprehensive sexual misconduct policies, which must include rules related to sexual behaviour between employees and students, and specified disciplinary measures to be taken in the event those rules are contravened. This misconduct policy could be a subset of a larger policy, such as a “sexual violence policy” which is mandated by the Ministry of Training, Colleges and Universities Act.

Bill 26 is in Second Reading in the legislature and has been ordered referred to the Standing Committee on Social Policy. As such, Bill 26 is not yet law. If it does pass, it would come into effect on July 1, 2023.

​Read the November 2022 Charity & NFP Law Update