Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022 [SPISA], which was passed on December 8, 2022, requires post-secondary institutions (“Institutions”) to develop better measures to address faculty and staff sexual misconduct towards students. By July 1, 2023, Institutions captured under the Ministry of Training, Colleges and University Act, 1990 and the Private Career Colleges Act, 2005 (collectively, the “Acts”) must implement employee sexual misconduct policies as part of their statutory obligations.
Definition of Sexual Misconduct
SPISA amended the Acts to define sexual misconduct by employees as:
a. physical sexual relations with a student touching of a sexual nature of the student or behaviours or remarks of a sexual nature towards the student by an employee of the institution where,
- i. The act constitutes an offence under the Criminal Code;
- ii. The act infringes the right of the student under the Human Rights Code [Code] to be free from a sexual solicitation in advance; or
- ii. 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 any 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 the Code to be free from a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance.
Importantly, the term “sexual misconduct” captures not only instances of sexual touching, but conduct involving sexual solicitation and reprisals.
Under SPISA, Institutions must not enter into any agreement that prohibits the Institution or any person related to the Institution from disclosing a complaint regarding sexual misconduct, as defined above. In essence, this bans the use of any non-disclosure agreement in sexual misconduct cases at these Institutions.
However, a student and the Institution may enter into such an agreement where the student requests it, provided that: the student had a reasonable opportunity to receive legal advice; the student experienced no undue attempts to influence the request, the agreement allows the student to waive their own confidentiality in the future, and the agreement is for a limited, set duration.
Sexual Misconduct Policy
Institutions must have in place a sexual misconduct policy by July 1, 2023, which must include, at minimum, the Institution’s rules with respect to sexual behaviour that involves the Institution’s employees and students, as well as examples of disciplinary measures that may be imposed on employees who contravene the policy.
The sexual misconduct policy may also specify acts that constitute sexual misconduct for the purposes of defining “sexual misconduct”, and may be included as part of another policy, such as the sexual violence policy that Institutions should already have in place as required under the Acts.
Discharge, Discipline, and No Re-employment
If an Institution’s employee commits sexual misconduct, the Institution may discharge or discipline the employee and that discharge or discipline will constitute just cause for all purposes. Under SPISA, the employee will not be entitled to notice of termination, termination pay or any other compensation as a result of their discharge or discipline.
Additionally, despite statutory provisions or any provision of a collective agreement or employment agreement specifying another penalty for sexual misconduct, no arbitrator, arbitration board, or adjudicator can substitute any other penalty for the Institution’s discharge or discipline of the employee.
Any employee discharged for or who resigned because of sexual misconduct, as defined above, cannot be re-employed by the Institution. In the event that they are re-employed, the Institution must discharge the employee.
Takeaways for Employers
Following the trend in case law showing that courts and tribunals are taking sexual misconduct seriously and awarding higher damages for same, additional safeguards are now statutorily mandated to better protect students from sexual misconduct at Institutions.
Institutions should ensure they have a comprehensive employee sexual misconduct policy that outlines what employees should expect with respect to rules regarding sexual behaviour, and the consequences of breaching the policy.
Institutions should ensure that, along with implementing their new sexual misconduct policy, they train their employees so that everyone understands the policy and has an opportunity to ask any clarifying questions.
When Institutions do receive complaints of sexual misconduct, given the delicate and serious nature of these allegations, Institutions should ensure the workplace investigation is conducted in a sensitive and trauma-informed manner.
Dismissing an employee for cause is reserved for severe and serious misconduct that irreparably damages the employment relationship. Employers who conclude just cause exists without properly determining they have cause with evidence to support same expose themselves to significant liability. A proper workplace investigation will help with fact-finding so that employers’ decisions are supported by a procedurally fair process that determines the events, which can help inform employers what corrective steps, if any, are appropriate.