If an employee of one of Ontario’ publicly-assisted universities or colleges of applied arts and technology commits an act of sexual misconduct toward a student of an institution, what penalty should or must apply?
Owing to a recent change in the Ministry of Training, Colleges and Universities Act, the answer is entirely within the hands of the institution with some very serious consequences, including permanent exclusion from being re-employed by the dismissing institution.
Moreover, the law provides that, subject to the rights of the student to request otherwise, an agreement between an institution and any person, including a collective agreement or an agreement settling existing or contemplated litigation, shall 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.
Additionally, the law provides that the new rules apply despite “any contrary term in an employment contract or collective agreement, or any contrary rule or principle of common law or equity” specifically including, but not limited to subsection 48 (17) of the Labour Relations Act, 1995 and subsection 14 (17) of the Colleges Collective Bargaining Act, 2008.
Bill 26
The Strengthening Post-secondary Institutions and Students Act, 2022, SO 2022, c 22, previously Bill 26, was introduced to Ontario Legislature by the Minister of Colleges and Universities on October 27, 2022. The Bill passed third reading on December 1, 2022, and received Royal Assent on December 8.
As explained by the Minister responsible for the Bill, the Hon. Jill Dunlop, Schedule 1 of the Strengthening Post-secondary Institutions and Students Act, 2022 amended the Ministry of Training, Colleges and Universities Act to “require publicly assisted colleges and universities and private career colleges to have specific processes in place that address, and increase transparency of, faculty and staff sexual misconduct on post-secondary campuses.”
Minister Dunlop continued her introductory remarks to the Bill by saying, “The strengthened policies would allow institutions to deem the sexual abuse of a student as just cause for dismissal; prevent the use of non-disclosure agreements to address cases where an employee leaves an institution to be employed at another institution and their prior wrongdoing remains a secret; and require institutions to have sexual misconduct policies in place that provide rules for behaviour between faculty, staff and students, as well as disciplinary measures for faculty and staff who break these rules.”
As enacted, Bill 26 adds section 16.1 to the Ministry of Training, Colleges and Universities Act to provide as follows:
Subsection 1
(1) In this section,
“institution” means a publicly-assisted university or college of applied arts and technology;
“sexual misconduct” means, 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 (Canada),
(ii) the act infringes the right of the student under clause 7 (3) (a) of the Human Rights Code to be free from a sexual solicitation or advance, or
(iii) the act constitutes sexual misconduct as defined in the institution’s employee sexual misconduct policy or contravenes the policy or any other policy, rule or other requirement of the institution respecting sexual relations between employees and students, or
(b) any conduct by an employee of the institution that infringes the right of the student under clause 7 (3) (b) of the Human Rights Code to be free from a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance.
Subsection 2
(2) If an employee of an institution commits an act of sexual misconduct toward a student of an institution, the institution may discharge or discipline the employee for that act, and,
(a) the discharge or disciplinary measure is deemed to be for just cause for all purposes;
(b) the employee is not entitled to notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure; and
(c) 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 shall substitute any other penalty for the discharge or disciplinary measure imposed by the institution.
Subsections 3 and 4
(3) If an employee of an institution commits an act of sexual misconduct toward a student of an institution and the institution discharges the employee for that act or the employee resigns from their employment, the institution shall not subsequently re-employ the employee.
(4) If an institution determines that it has re-employed an individual contrary to subsection (3), the institution shall discharge the employee and clauses (2) (a) to (c) shall apply to the discharge.
Subsections 5 and 6
(5) Subject to subsection (6), 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 [December 8, 2022], shall 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 any such term that is included in an agreement is void.
(6) An institution may enter into an agreement that contains a term described in subsection (5) if the student requests that the institution do so, provided that,
(a) the student has had a reasonable opportunity to receive independent legal advice;
(b) there have been no undue attempts to influence the student with respect to the request;
(c) the agreement includes an opportunity for the student to decide to waive their own confidentiality in the future and the process for doing so; and
(d) the agreement is of a set and limited duration.
Subsection 7
(7) Subsections (2) to (6) apply despite any contrary term in an employment contract or collective agreement, or any contrary rule or principle of common law or equity.
Subsections 8 - 10
(8) Every institution shall have an employee sexual misconduct policy that includes, at a minimum,
(a) the institution’s rules with respect to sexual behaviour that involves employees and students of the institution; and
(b) examples of disciplinary measures that may be imposed on employees who contravene the policy.
(9) The employee sexual misconduct policy referred to in subsection (8) may specify acts that constitute sexual misconduct for the purposes of the definition of “sexual misconduct”.
(10) The employee sexual misconduct policy referred to in subsection (8) may be included as part of another policy, including as part of the sexual violence policy required under subsection 17 (3).
Commentary
There is a lot to digest in those provisions. Accordingly, I will separate my comments by subsection.
Before doing so however allow me to confirm that I agree that sexual misconduct, especially in situations of an imbalance of power such as that between employees of post-secondary institutions and students, is wrong and requires a strong legal response.
However, the lawyer in me must also appreciate that all persons accused of wrongdoing, especially where the wrongdoing alleged is serious and carries strong societal stigma must be afforded due process rights in order to defend such allegations so as to not permanently carry such stigma. Section 7 of the Canadian Charter of Rights and Freedoms guarantees that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The question that will assuredly find its way into Ontario’s court system is whether the provisions of Bill 26 adequately thread the needle.
Subsection 2, Paragraphs (a) and (b)
When I started into this post, I had intended to limit my comments to a pedantic rant about the semantics of paragraphs (a) and (b) of subsection 2 of newly minted section 16.1.
My intention was to call out the legislature for using the words “just cause” to define a situation in which an employee becomes disentitled to notice of termination or termination pay.
The reason I was going to engage in such a pedantic rant is captured in my earlier post, Ontario’s Employers Have Just Cause to be Frustrated.
As I explain in my earlier post and repeat now, while Ontario’s courts have recently appreciated that Ontario’s Employment Standards Act does not use the words “just cause” to define a situation in which a dismissed employee becomes disqualified from receiving notice of termination or termination pay, some courts and now the Ontario legislature continue to use such wording in such a way. Using the words “just cause” in one statute to define a situation in which a dismissed employee becomes disqualified from receiving notice of termination or termination pay while using different words in the primary employment standards statute, and then allowing the courts to draw bright lines between the two is simply perpetuating confusion.
Moreover, I am struck by the disparity between the Court of Appeal for Ontario’s finding in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, about which I blogged in my post Court of Appeal Recognizes that Employees Terminated “For Cause” May Still Be Entitled to Statutory Termination Benefits, where the Court of Appeal found that: (a) the employee at issue had engaged in behaviour that would likely meet the statutory definition of “sexual misconduct” in the Ministry of Training, Colleges and Universities Act, (b) the employee had been dismissed “for cause”, but (c) was nonetheless entitled to statutory termination pay. While the employee in Render was not an employee of a publicly-funded post-secondary institution, if one can square the Court of Appeal’s analysis in Render with what the new law commands, I’d love to hear it.
Subsection 2, Paragraph (c) and Subsection 7
Paragraph (c) of subsection 2, and subsection 7 are where things start to get dicey for this law. Recall that paragraph (c) of subsection 2 provides that, “If an employee of an institution commits an act of sexual misconduct toward a student of an institution, the institution may discharge or discipline the employee for that act, 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 shall substitute any other penalty for the discharge or disciplinary measure imposed by the institution. Subsection 7 reads as follows, “Subsections (2) to (6) apply despite any contrary term in an employment contract or collective agreement, or any contrary rule or principle of common law or equity.”
I am not a big fan of bestowing absolute, unchecked power on any employer. Employers are composed of people, and people can make mistakes. The recognition that to err is human is why systems of checks and balances exist.
For the curious, subsection 48 (17) of the Labour Relations Act, 1995 provides as follows, “Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.” Similarly, subsection 14 (17) of the Colleges Collective Bargaining Act, 2008 provides that, “Where an arbitrator or arbitration board referred to in this section determines that a disciplinary penalty or dismissal of an employee is excessive, the arbitrator or arbitration board, as the case may be, may substitute such other penalty for the discipline or dismissal as the arbitrator or arbitration board considers just and reasonable in all the circumstances.”
Those two sections, and indeed the entire notion of labour law and progressive discipline, provide that someone other than the institution should get the final say as to whether dismissal is warranted. Subsection 2, paragraph (c) of section 16.1 of the act appears to remove that system of checks and balances and place unfettered power into the hands of the institution. Simply stated, I am unsure that right survives constitutional scrutiny. And, if subsection 7 is an attempt to invoke the “notwithstanding clause” of the Charter, then the language is insufficient to do so.
Subsections 3 and 4
For those who may have formed the opinion that I am concerned that the new law goes too far, allow me to now criticize the law for potentially not going far enough.
Recall that subsection 3 provides that, “If an employee of an institution commits an act of sexual misconduct toward a student of an institution and the institution discharges the employee for that act or the employee resigns from their employment, the institution shall not subsequently re-employ the employee.” Similarly, subsection 4 commands that, “If an institution determines that it has re-employed an individual contrary to subsection (3), the institution shall discharge the employee and clauses (2) (a) to (c) shall apply to the discharge.”
The words highlighted above are “the” institution and “re”-employed, which indicate that the prohibition on re-employment applies only to the publicly-assisted post-secondary institution from which the employee was dismissed and not, as some may prefer, every publicly-assisted post-secondary institution.
Several cities in Ontario have more than one publicly-assisted post-secondary institution. By my count, Toronto has five publicly-assisted universities and five publicly-assisted colleges. Ottawa has two universities and two colleges. Kingston has two universities and one college. You get my point. If one elected to resign from one institution it may not take much of a change in geography to find new, similar employment.
Subsection 5
My concerns about the potential for an employee who has engaged in sexual misconduct to secure new employment at a new institution are, presumably, what prompted the legislature to also include as part of its reforms subsection 5, which, to repeat prohibits an agreement made after December 8, 2022 from containing 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.
One presumes that if an employee of an institution attempted to secure new employment at a new institution, that the hiring institution, as part of its due diligence, would discover these allegations and act accordingly. And, perhaps, such due diligence satisfies my concerns about the constraints of subsections 3 and 4. Perhaps.
In any event, and swinging the pendulum back the other way, I do have concerns about the prohibition on agreements that would prevent the continued mention of “allegations or complaints.” Similar to my concerns above about vesting institutions with unfettered, unchecked power, I have concerns about the ability of persons to repeat allegations if those allegations are never tested and adjudicated. Moreover, the section would allow “any person related to the institution”, which would seemingly include several thousands of students, from repeating and perpetuating allegations regardless of the actual findings made in respect of such allegations.
While there must be some way to prevent cover-ups from occurring, at the same time persons wrongfully accused of misdeeds must have the right to move on with their lives. I don’t know whether subsection 5 gets the balance right.
Closing
I will finish this commentary where I began- by confirming that sexual misconduct, especially in situations of an imbalance of power such as that between employees of post-secondary institutions and students, is wrong and requires a strong legal response. I appreciate that legislative drafting is hard.
Do the changes to the Ministry of Training, Colleges and Universities Act go too far and vest too much power into the hands of the province’s institutions? I believe they do.
But, and to be clear, my criticism is not that I believe that sexual misconduct is something unworthy of response – indeed quite the opposite – my point is that allowing the institution unfettered power to deal with employees accused of engaging in such behaviour may be a denial of certain constitutionally protected rights.
About Me
Sean Bawden is Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, which is based in Ottawa. I have appeared in courtrooms all across Ontario from Stratford, to L’Orignal, to Thunder Bay.
For 2.5 years I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.
I am also a part-time professor at Algonquin College teaching Employment Law. I have previously also taught Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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