ONTARIO POST-SECONDARY INSTITUTIONS – SILENCE IS NOT FOR SALE

Fall is upon us which means back-to-school, sweater weather and warm beverages.

This is also the time of year many will return to, or start, pursuing their career and educational goals at one of Ontario’s many post-secondary institutions. Ontario’s Colleges and Universities are a sanctuary for higher educational achievement, the honing of student minds and the forming of important lifelong relationships. While the vast majority of these on-campus relationships are meaningful and productive, it is no secret that colleges and universities have also historically been the location of inappropriate relationships between teaching staff and students.

When we consider the relationships between ambitious students and professors, teaching assistants or supervisors, post-secondary institutions are unfortunately ripe ground for the misuse of authority. This has resulted the Ontario legislature to recently pass Bill 26 – or the Strengthening Post-secondary Institutions and Students Act, 2022 (the “Act”).

The Act makes several important amendments that place new requirements on post-secondary institutions to address the issue sexual misconduct between teachers and students on campus.

A summary of some of the key changes are:

  • A requirement that each Ontario post-secondary institution institute a sexual misconduct policy;
  • Prohibits the use of non-disclosure agreements (NDA) that attempts to prohibit discussion of a student’s allegation or complaint of sexual misconduct to prohibit, subject to limited exceptions if the NDA is requested by the student;
  • Removes the possibility of an initial disciplinary measure for an employee’s sexual misconduct to be reversed or revised by an adjudicator (i.e. an employee suspended without pay, cannot be reversed); and
  • Removes the possibility of reinstatement if an employee is terminated for sexual misconduct.

Workplace sexual harassment and abuse have long been the subject of legal commentary reflecting upon the most appropriate means of justice for victims.

For example, advocates have long advocated for the banning of NDAs as it relates to workplace sexual misconduct and with the passing of the Act, there is now a real possibility that one day these changes may be reflected in all Ontario workplaces.

While the Act will not operate retroactively to void any NDAs entered into prior to July, 2023. The banning of NDAs in settling campus sexual misconduct claims is significant step towards gaining justice for victims and may be a sign of more changes to come.

For students on campus, take note and take heart, your silence is not for sale.

For general workplaces in Ontario, the best thing that employers can do is to be vigilant. That means having strong internal workplace policies in place, especially for reporting, investigating and addressing allegations of workplace harassment and misconduct.
Thanks for reading and enjoy this sweater weather season.

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