Post-secondary employers need guidance on sexual misconduct as NDA ban passes

A new law enhancing Ontario universities’ power to fire staff for sexual misconduct raises fairness and procedural concerns, says Toronto civil litigator Stephany Mandin.

Under Bill 26, the Strengthening Post-Secondary Institutions and Students Act, any termination or discipline imposed by universities or other post-secondary institutions for sexual misconduct toward a student is deemed to be for just cause, regardless of any union agreements or labour relations rights.

The bill, which received Royal Assent at Queen’s Park on Dec. 8 after passing the legislature unanimously, also bars subject employers from re-hiring someone who was fired or resigned after committing sexual misconduct against a student, and renders void any non-disclosure agreement arising from incidents to the extent that it directly or indirectly prohibits the institution or “any person related to the institution from disclosing that an allegation or complaint has been made.”

Mandin, principal of Mandin Law, says the bill is a laudable attempt to tackle the serious and pervasive problem of sexual abuse on campuses across the province, but has concerns about how the law will operate in practice.

“I understand the intentions here, and I think they are noble, but it raises a lot of questions about how you report an act of sexual misconduct, and how you establish that one has been committed,” she says. “If it’s based on an allegation or a complaint, then how do those complaints get handled in order to ensure that there is some sort of due process for the accused person. It strikes me as leaving a lot of discretion in the hands of post secondary employers.”

As with previous provincial laws addressing workplace violence and harassment, Mandin says Bill 26 downloads responsibility onto employers by requiring them to set their own policies on the issue. The new law comes into force in July 2023, giving post-secondary institutions a little more than six months to come up with sexual misconduct policies laying out their rules regarding sexual behaviour that involves employees and students.

“What we have seen in practice is no real regulatory guidance on what these policies should include,” Mandin says. “Instead, it’s left up to each individual employer to enact their own policies and procedures, so that you’re left with a haphazard and random application of the process depending on where you work or go to school. This makes it more challenging for complainants to navigate and often leaves them feeling further victimized.”

According to Mandin, the provincial government should step in to provide a set of uniform standards for the content of sexual misconduct policies, including more substantial guidance regarding the reporting and investigation of any complaints made under them.

“The problem with imposing the label of ‘sexual misconduct’ on a person’s behaviour when the process and determination of same is largely undefined is that it descends into a conversation over whether it’s a violation of that person’s right to be considered innocent until proven guilty, rather than what it should be, which is a conversation about how best to protect students against sexual abuse,” she adds.