July 1, 2023: Deadline for Implementing Sexual Misconduct Policy by Ontario Institutions

As of July 1, 2023, all publicly assisted universities and colleges of applied arts and technology (that receive regular and ongoing operating funds from the government), as well as private career colleges (collectively, “Institutions”), are required to comply with the measures introduced by Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, which amends the Ministry of Training, Colleges and Universities Act and Private Career Colleges Act, 2005 (collectively, the “Acts” amongst other requirements, institutions must have put in place a sexual misconduct policy by this date. At a minimum, a sexual misconduct policy must include the institution’s rules with respect to sexual behaviour involving employees and students and must provide examples of disciplinary measures that may be imposed on employees who contravene the policy. Further, it allows Institutions to define in their sexual misconduct policy the acts that they determine to constitute sexual misconduct for the purposes of the definition of “sexual misconduct” as prescribed.

These changes require that:

• An employee may be discharged or disciplined if they have committed an act of sexual misconduct towards an enrolled student.
• The discharge or discipline would be deemed to be for just cause for all purposes, and the employee would not be entitled to notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure.
• In addition, the penalty could not be substituted by a labour arbitrator, arbitration board or other adjudicator, notwithstanding the Labour Relations Act, 1995 (s. 48(17)), the Colleges Collective Bargaining Act, 2008 (s. 14(17)) or any provision of a collective agreement or employment contract.
• An employee could not be reemployed by an institution which has discharged the employee, or where they have resigned, as a result of committing an act of sexual misconduct against a student.
• The institution is prohibited from entering into any agreement that directly or indirectly prohibits the Institution from disclosing the fact that a court, arbitrator or other adjudicator has determined that an employee has committed an act of sexual misconduct.

  Pursuant to these amendments, “sexual misconduct in relation to a student of an institution” is defined as:

  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;

1. a)  the act constitutes an offence under the Criminal Code (Canada),
2. b)  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;

c) the act constitutes sexual abuse 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;

d) 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.