On December 8, 2022, Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, as amended, received Royal Assent.
We reported on the Bill in our FTR Now of October 28, 2022, Ontario Tables Bill 26 Mandating Post-secondary Institutions to Address Faculty and Staff Sexual Abuse Towards Students in a More Prescriptive Manner.
In this FTR Now, we discuss the amendments to Bill 26 made by the Standing Committee on Social Policy (Committee).
Bill 26, as amended by Committee, amends the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005 to require post-secondary institutions to address faculty and staff sexual misconduct towards students.
Note that the Committee amendments changed the term "sexual abuse"-found throughout the Bill as it was originally tabled-to "sexual misconduct," but also note that the definition of the new term remains identical to the prior definition of "sexual abuse." As before, the new provisions will apply to publicly assisted universities and colleges of applied arts and technology, as well as private career colleges (Institutions).
The amendments made at Committee also state that Institutions must not enter into an agreement that 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. Previously, this prohibition applied to disclosing the fact that a court, arbitrator or other adjudicator had determined that an employee had committed an act of sexual abuse.
However, as the result of amendments made at Committee, an Institution may enter into an agreement that contains a term described above 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
With the passage of Bill 26, Institutions must comply with the foregoing obligations, among others, by July 1, 2023.
Further, Institutions must also put in place a sexual misconduct policy by July 1, 2023 that, at a minimum, includes the Institution's rules with respect to sexual behaviour that involves employees and students and provides examples of disciplinary measures that may be imposed on employees who contravene the policy.
Please contact your regular Hicks Morley lawyer should you require assistance with developing a sexual misconduct policy or implementing any other aspects of Bill 26.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
