What is Bill 26
Bill 26, the Strengthening Post-Secondary Institutions and Students Act, comes into effect July 1st, 2023, and amends prior acts by setting out rules respecting sexual misconduct toward students by employees of universities and colleges in Ontario. Bill 26 expands the definition of sexual misconduct and/or harassment that triggers the requirement for an investigation. It also makes substantive and meaningful changes to the UOITFA’s ability to challenge a finding of sexual misconduct by an investigator on your behalf as, subject to any legal challenges, the provisions in Bill 26 override any provisions in collective agreements or employment contracts.
Sexual Misconduct Definition
Bill 26 already provides a wide definition of sexual misconduct, and while there is room for universities to develop their own definition, the expectation is that universities will either adopt the definition in Bill 26 or expand upon it—there is no scaling back the definitional elements already established in the law. That the law uses the term sexual misconduct (rather than sexual harassment or abuse) itself signals a commitment to expansive grounds for disciplinary action.
Sexual misconduct as defined in the Bill must satisfy two conditions. First, there is a legal alignment component: so, the act(s) must constitute either a criminal offence, a violation of Human Rights Code provisions on sexual solicitation, or a violation of university policies—which can be a sexual misconduct policy, or more general policy on sexual relations between employees and students. Second, there is a definitional condition: an act is considered sexual misconduct if it entails physical or sexual relations with a student, touching of a sexual nature of a student, or behaviours or remarks of a sexual nature toward the student.
These definitional elements of sexual misconduct have drawn critique for their overbreadth. There is a risk that this legal definition, especially the reference to remarks of a sexual nature, could encompass course material, which would undermine academic integrity, especially for instructors who handle material that has been historically censored and the target of moral panics.
Bill 26 changes how disciplinary proceedings are conducted. A finding of sexual misconduct can result in work termination, or the discharge of an employee from their position. Terminations are on a just cause basis. In employment law, just cause means the employee is dismissed for such serious misconduct that the employer need not follow their usual contractual obligations. Not only is termination a disciplinary option available under Bill 26, but also the employee is not entitled to notice of termination, financial settlement, or eventual reinstatement. And importantly, Bill 26 enables the employer to impose discipline or dismissal that arbitrators and adjudicators cannot replace with a lesser penalty. The law explicitly states that its disciplinary process circumvents the Labour Relations Act and the Colleges Collective Bargaining Act, and by extension FA collective agreements.
At Ontario Tech, the UOITFA will continue to have the right to grieve the process leading to a finding of sexual misconduct, but the Bill deems any discipline issued by the university to satisfy a just cause analysis and removes the jurisdiction of an arbitrator or any other adjudicator to override the penalty if the finding of sexual misconduct stands. If found to have committed sexual misconduct against a student, the Bill restricts the right of the UOITFA to negotiate a non-disclosure clause, a monetary severance package, or compensation of any kind on your behalf. It also prohibits you from seeking re-employment with the university at any future time.
These alterations to the disciplinary process at Ontario Tech are a matter of procedural fairness. Bill 26 undermines legal and employment standards and collective bargaining language such as Tenure, as well as key administrative principles owed to all parties in a labour dispute. The broad and sweeping definition of sexual misconduct allows for the imposition of the most extreme consequences in employment law, denying employment standards and undermining the Tenure system in the process, on grounds that have been poorly defined.
Implications of Bill 26 at Ontario Tech
An added complication relates to the already established definition of sexual misconduct in Ontario Tech’s Respectful Campus Policy. For the purposes of that policy and related procedures, Ontario Tech refers to sexualized or intimate behaviours by employees in relation to a student that is contrary to University Policy. Sexual misconduct includes, for example, behaviours that fall within the definition of sexual harassment and student sexual violence and also includes an employee’s failure to disclose to a supervisor an intimate relationship with a student when required under the University’s Ethical Conduct Policy.
Having the definition of sexual misconduct spread across several already-existing policies rather than in one standalone policy creates a situation where it may be very challenging for UOITFA members to understand their responsibilities as related to the disclosure of even a consensual intimate relationship. This is especially concerning as the implications of failure to properly disclose or potentially even enter into these relationships could lead to very severe penalties as established under Bill 26.
The UOITFA would like to remind our members at this time of the importance of professional boundary setting in written and verbal interactions with students and encourage UOITFA members to consider the following advice as it relates to relations with students:
- Know your legal obligations
- Keep relationships and communications with all students professional at all times
- Limit and manage informal, non- course-related interactions with students
- Keep records of interactions with students or have a witness if you are meeting a student to discuss a complaint or concern that could lead to conflict.
- Seek advice from the UOITFA at the earliest sign that there is a situation that could give rise to a student complaint of sexual misconduct.
While these tips are intuitive and uncontroversial, the UOITFA is also mindful that students don’t always respect faculty efforts to set boundaries, especially faculty who are members of equity deserving groups. The UOITFA is here to support members as they navigate issues resulting from students failing to respect professional and personal boundaries.
Positional Power under Bill 26
The legal condition in the Bill 26 definition of sexual misconduct includes a violation of any university policy, rule, or other requirement regarding sexual relations between employees and students. It is not explicitly stated in the Bill itself, but implied here is that the Bill covers disclosure requirements in cases of intimate relationships between an employee and student whose professional connection may entail supervision, evaluation, or benefit conferral. Usually policies and collective agreements do not outright prohibit personal or intimate relationships between academic staff and students; rather, disclosure requirements tend to exist in order to prevent conflicts of interest. But here we see Bill 26 connecting sexual misconduct to relationship disclosure, without clarity around how that will work.
The UOITFA recognizes that intimate relationships between faculty and students can come with power imbalances, especially given that Canadian criminal law itself vitiates consent in instances where the accused induces engagement in sexual activity by abusing a position of power or authority. But workplace relationships can be entered into consensually. Bill 26 risks joining a history of lawmaking designed to be protective in ways that discount the agency of the parties under protection.
As well, Bill 26 only focuses on faculty as perpetrators, overlooking how sexual harassment can happen in the workplace to faculty, especially faculty from equity deserving groups (including and especially racialized and women faculty), and faculty who are precariously employed (as post-secondary institutions increasingly rely on contract labour to mount academic programs). Further to that, some instructors or tutorial leaders whom students encounter themselves may be graduate students fulfilling teaching assistantships. These examples illustrate that power dynamics do not always flow one way between instructor and student, and are not evenly distributed across academic staff. Despite this unevenness, Bill 26 frames employees monolithically, and frames the employee/student power differential in black-and-white, all-or-nothing terms.