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On October 27, 2015, the Ontario government tabled its Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2015 (the “Act”). Last week my colleague Janice Rubin wrote about the implications for employers of the amendments to the Occupational Health and Safety Act. This week, I am considering the implications for Ontario’s colleges and universities of the proposed amendments to the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, and specifically the intention “to impose various obligations on colleges and universities respecting sexual violence involving students.”
Under the Act, sexual violence is defined as follows:
Any sexual act or act targeting a person’s sexuality, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.
The proposed amendments “require colleges and universities to have sexual violence policies that set out the process that will apply when incidents and complaints of sexual violence are reported, and that address any other matters required under the regulations.” The policies must “specifically and solely addresses sexual violence involving students enrolled at the college or university” and “set out the process for how the college or university will respond to and address incidents and complaints of sexual violence involving students enrolled at the college or university.”
Colleges and universities are further expected to seek student input when preparing their policy, review the policy every three years, and collect data and information from students and others that speaks to the effectiveness of the policy.
In anticipation of the Act, 24 publicly-funded colleges in Ontario jointly prepared a Sexual Assault and Sexual Violence Policy and Protocol Template that outlines a variety of steps, both proactive and reactive, that will be utilized to address sexual violence. These steps include addressing harmful attitudes, supporting individuals who have experienced sexual violence, and ensuring appropriate internal investigation procedures exist, even when an individual chooses not to report the incident to the police.
For other colleges and universities in Ontario, the Act signals an expectation that they too review and revise their policies and processes for addressing issues of sexual violence involving students.
While many academic institutions currently make reference to sexual harassment and/or sexual assault in their existing policies, the proposed amendments require that a separate sexual violence policy be prepared. Organizations will likely be expected to ensure that both their employees and their students are made aware of the new policies, through effective communication and training. A broader understanding of sexual violence, as distinct from sexual assault, will need to be understood at all levels of the institution; in many cases, this may be a profound culture shift that cannot be accomplished without a specific and wide-ranging plan.
In addition, a consistent message of the Act, and a specific requirement of the amendments pertaining to academic institutions, is that there be a process to address incidents and complaints of sexual violence. Typically such processes include supporting the individuals involved, providing them options, conducting thorough investigations and following through with outcomes following the investigation. Given the serious nature of allegations of sexual violence, a fair and thorough investigation would be expected. Consistency would be ensured through a clearly articulated investigation process and effective training for investigators on both process and subject matter relating to the Policy.
Lastly, given the requirement to report to the Minister, colleges and universities must ensure that they build into their policy and related programs the ability to gather information and measure the effectiveness of their efforts. This should include the ability to gather both qualitative and quantitative information.
Clear policies, formalized processes, rigorous investigations and substantive outcomes are all key elements of an effective system to address sexual violence. While the Act may evolve on its way to Royal Assent, these components are likely to remain as best practices to be considered and implemented by Ontario’s colleges and universities. Accordingly, instead of waiting to react to the legislation in its final form, organizations would be well served to take a proactive approach, beginning with a thorough review of existing policies and procedures to identify gaps that can be filled in the interim.
About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.