The Ministry of Training, Colleges and Universities (“MCU”) has recently proposed new legislation that would amend the current Ministry of Training, Colleges and Universities Act.[1] If passed, Bill 166, which is also called the Strengthening Accountability and Student Supports Act, 2024, would amend the Ministry of Training, Colleges and Universities Act to include the requirement that every college and university in Ontario have a student mental health policy in place setting out what services, programs, policies and supports are available for student mental health. In addition, policies and rules will need to exist to address and combat racism and hate, including antisemitism, anti-Black racism, anti-Indigenous racism and Islamophobia. There have currently been two readings and the bill has been ordered for a third reading.[2]
Ontario’s Human Rights Code, Investigations and Organizational Policies
The Ontario Human Rights Code already establishes that students, as service recipients of universities and colleges, have the right to a discrimination-free learning environment. In addition, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, is now trite law: where the right to a discrimination-free environment exists, so must measures to investigate complaints of discrimination. In applying this to colleges and universities, students have the right to have their post-secondary institution prevent, address and remedy any type of act that violates a human rights Code ground (see: Hale v. University of British Columbia Okanagan (No.5), 2023 BCHRT 121 (CanLII)). As such, to comply with their Code-based legal obligation to provide students with a discrimination-free environment, colleges and universities should develop and implement policies that address complaints of discrimination and ensure that both students and staff understand and know how to access them. Failure to do so could result in a finding that a university or college has discriminated against a student and an order for remedies correlated with impact.
In addition to developing and implementing policies that address discrimination, colleges and universities must also ensure that those who are appointed to respond to allegations of discrimination have the proper training required to do so (see Laskowska at para. 65). In the context of sexual violence, the British Columbia Human Rights Tribunal stated that applying Laskowska to a complaint of sexual violence means that it is reasonable for the complainant to expect to have their complaint investigated by someone who has some training in rape myths and stereotypes, the impact of trauma, and investigative processes (see Hale at para. 268).
Addressing Discrimination Through the Ministry of Training, Colleges and Universities Act
The Code is sufficient to establish that the duty to investigate exists in a post-secondary context, but the Ministry may also enact legislation that clearly establishes policy, process and outcome-based requirements to address specific areas of concern. For example, in December 2022, Bill 26 resulted in the amendment of the Ministry of Training, Colleges and Universities Act to legislate the requirement for a sexual misconduct policy in colleges and universities.[3] Through this measure, as of July 1, 2023, policies and rules specific to sexual misconduct had to be created or updated to ensure compliance with the new amendment. In proposing amendments under Bill 166, MCU identified current key challenges they aim to address for student populations, including, but not limited to, incidents of hate and racism on campus and high demand for mental health services. As currently proposed, Bill 166 could result in students having access to a unique set of clearly defined rules and processes in place for complaints related to racism and hate.
Human Rights Code Implications
While the Code requires institutions to have processes in place to prevent and respond to discrimination, legislation such as Bill 166 goes further in establishing government oversight and a greater degree of detail and precision in internal policies. In addition, there is a legislative intent to address specific concerns, in comparison to the Code, which establishes inherent rights based on Code-based grounds and areas. Further, while there is overlap with the Code, for example, in requiring policies to combat hate and racism, the Ministry of Training, Colleges and Universities Act may also result in legislative requirements that are not necessarily required under the Code.
In conclusion, both Bill 26 and Bill 166 (if passed) demonstrate legislative intent for the government to target areas of protected Code grounds under the Ministry of Training, Colleges and Universities Act. However, it is important to note that institutions should nonetheless ensure that their internal policies and processes satisfy their obligation to prevent and address any and all areas of discrimination, pursuant to the Code.
About the author
Shannon Sproule is a lawyer, trainer, and investigator at Turnpenney Milne LLP, practicing in all areas of human rights and employment law. In addition, Shannon conducts investigations and assessments for workplaces, unions, and educational settings across the country. Shannon is proud to serve clients in both French and English.
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