Also authored by: Vanshika Dhawan
In our previous blog post discussing prohibitions on non-disclosure agreements and, specifically, Ontario’s Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, we noted that the Bill would go before Ontario Legislature’s Standing Committee on Social Policy on November 22, 2022. Many stakeholders, including experts, community advocates, and student organizations provided oral and written submissions in response to Bill 26. As a result of the submissions, a number of amendments were made to the content of Bill 26, which the Legislature voted to approve on December 1, 2022. The Bill has now passed its third reading and will be placed before the Lieutenant Governor for Royal Assent.
At the outset, we note that earlier drafts of Bill 26 used the language “sexual abuse” to describe the student-employee relations that universities and other post-secondary institutions would be required to address by implementing policies pursuant to the Bill. Now, Bill 26 uses the broader term “sexual misconduct” throughout. Though institutions may still implement their own definitions of “sexual misconduct” in their respective policies, this change acknowledges that “abuse” carries the connotation of physical acts, whereas “misconduct” more readily encompasses both physical and non-physical inappropriate sexualized behaviours.
The most significant amendments to the Bill were made in the subsection that addressed non-disclosure agreements (NDAs). In our previous blog, we examined the subsection restricting NDAs, stating that the provisions, as drafted, were too narrow as NDAs would only be prohibited where “determinations” of sexual abuse were made by a “court, arbitrator, or other adjudicator”. We also addressed the fact that the Bill lacked provisions allowing for NDAs in contexts where it was the survivor-student’s expressed wish and preference. These concerns were also reflected in written submissions made to the Standing Committee by the Canadian Centre for Legal Innovation in Sexual Assault Response (CCLISAR), of which Elizabeth Grace was a signatory.
The amended Bill 26 expands the restrictions on NDAs. These no longer apply only to “determinations” (or findings) of sexual abuse. Now, agreements and settlements entered into after Bill 26 takes effect cannot prohibit the disclosure of the fact that an “allegation or complaint” of sexual misconduct was made against an employee. This means a formal investigation or adjudication process is not necessary to trigger this subsection, and NDAs are restricted as soon as such an allegation or complaint is made. This is a broad prohibition.
In addition, survivor-centric exceptions to restrictions on NDAs have also been explicitly carved out in the amended Bill 26. Similar to the broader legislation introduced (or being introduced) in other provinces, institutions can enter into agreements of set and limited durations that prohibit disclosure of the fact that an allegation or complaint of sexual misconduct was made where the survivor-student requests it. However, there are certain safeguards put into place. For example, the survivor-student must have a reasonable opportunity to receive independent legal advice, there must be no undue attempts to influence the student, and the agreement must include the opportunity for a student to decide to waive their own confidentiality in the future, as well as the process by which to do so.
While it remains to be seen whether these restrictions on NDAs will be expanded to other sectors as we, CCLISAR, and others have urged, the submissions by experts, community members, and student organizations, among others, have led Ontario Legislature to place survivors, rather than alleged perpetrators and their institutional employers, at the centre of these amendments to Bill 26. We believe this is a step in the right direction and that it will, hopefully, encourage greater accountability from perpetrators and their post-secondary education employers and thereby contribute to reducing the epidemic of sexualized violence in our society.