Ontario to ban sexual misconduct NDAs for post-secondary staff

The Ontario government recently introduced a bill that would ban the use of non-disclosure agreements (NDAs) in sexual misconduct cases brought against employees at the province’s colleges and universities.

While Bill 26, the Strengthening Post-Secondary Institutions and Students Act, hasn’t been voted on yet, its current form would:

• Allow for the immediate termination of post-secondary staff who commit an act of “sexual abuse” as defined in the bill
• Remove a non-unionized employee’s ability to pursue a wrongful dismissal claim if they are fired for sexual misconduct
• Remove a unionized staff member’s right to grieve the termination if they are terminated for sexual misconduct

Bill 26 also requires colleges and universities across Ontario to implement a sexual misconduct policy, which should outline rules with respect to sexual behaviour involving employees and students.

If the legislation does pass, it will amend the province’s Ministry of Training, Colleges and Universities Act.

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LISTEN: Employment lawyer Lluc Cerda spoke with 640 Toronto’s Alex Pierson about Bill 26 and how the legislation could affect employee rights in Ontario.

Full transparency

Bill 26 forbids agreements containing NDAs that prevent the post-secondary institution, or anyone related to it, from disclosing that certain staff members have been found to have committed sexual misconduct by a court, arbitrator, or other adjudicator.

The legislation also bars colleges and universities from rehiring staff who have committed sexual abuse at their institution.

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Ensuring victims have a voice

Bill 26 will help ensure that colleges and universities across Ontario, as well as victims of sexual abuse, aren’t prevented from sharing their experiences by a confidential out-of-court settlement.

However, hearings and trials can be quite traumatizing for some victims. They might prefer settling the matter before taking the stand.

In these situations, a non-disclosure agreement would still be legal.

Is Bill 26 the first step in completely removing NDAs in Ontario?

Bill 26 may be the first step in creating a blanket prohibition against NDAs in Ontario. This would help create safer workplaces because violators would no longer be able to keep their past misconduct a secret.

For the legislation to apply, a court, arbitrator, or other adjudicator must rule that a post-secondary employee did commit sexual abuse as defined in the bill.

Once this happens, it becomes illegal to require an NDA as part of the settlement.

Does Bill 26 also apply to sexual misconduct cases involving students?

The short answer is no. Bill 26 only deals with sexual misconduct cases brought against employees at Ontario’s colleges and universities.

It’s important to understand that NDAs would still be legal in other government settings and in the province’s private sector.

What should I do if I experience sexual misconduct at work?

Sexual misconduct is a form of gender-based discrimination. In Ontario, non-unionized employees don’t have to tolerate harassment or discrimination in the workplace.

Under the province’s Occupational Health and Safety Act (OHSA), employers must investigate and respond appropriately to allegations of harassment, discrimination, and abuse.

WATCH: Employment lawyer Lior Samfiru discussed everything you need to know about workplace harassment on an episode of the Employment Law Show.

If your company fails to properly respond to workplace harassment, or ignores your complaints, you could have grounds for a constructive dismissal claim. This would allow you to resign and pursue full severance pay.

If you believe that you have been constructively dismissed, don’t quit your job before speaking with an experienced employment lawyer at Samfiru Tumarkin LLP.

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Filing a human rights complaint

Non-unionized employees who experience harassment and discrimination in the workplace also have the option of filing a complaint with the Human Rights Tribunal of Ontario (HRTO).

The HRTO is responsible for dealing with human rights complaints pertaining to the the province’s Human Rights Code (HRC).

Successful complaints can result in compensation for the individual who experienced discrimination.

How we can help

The experienced employment law team at Samfiru Tumarkin LLP has represented numerous non-unionized employees in Ontario who have been the victim harassment, discrimination, and misconduct at work.

Our lawyers in Toronto and Ottawa can review your situation, enforce your rights, and ensure that you receive the compensation you are entitled to.