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‘Hands of universities are tied’ by privacy laws preventing disclosure of sexual misconduct by staff: prof

CBC News with Karen Busby 29 August 2018

Administrators at the University of Manitoba want to re-examine the provincial privacy laws that they say prevent them from sharing details about the sexual misconduct of past employees with potential new employers.

The call follows two high-profile incidents involving allegations against U of M professors in the past year.

A Winnipeg oncologist and former professor at the university recently lost his licence for six months for pursuing inappropriate sexual relationships with two students.

Last year, jazz professor Steve Kirby retired from the university after an internal investigation report said he repeatedly made inappropriate sexual comments and unwanted sexual contact with a female student.

Kirby was subsequently hired by the Berklee College of Music in Boston, but was fired after the U of M complainants told Berklee administration about the sexual harassment allegations.

Manitoba privacy laws barred the university from disclosing its investigation into Kirby’s conduct, the U of M said.

Jazz professor Steve Kirby left the University of Manitoba after an internal investigation report said he repeatedly made inappropriate sexual comments and unwanted sexual contact. (CBC)

“I think that privacy laws is … a conversation that is important for us to engage in,” said Janice Ristock, U of M provost and academic vice-president.

“It’s … not only unique to what we’re dealing with, but it’s something people are talking about across the country.”

‘Due diligence’

The university says Manitoba’s Freedom of Information and Protection of Privacy Act and labour laws prohibit sharing  internal investigations with other potential employers.

This interpretation of the law is sparking student concern that professors could continue the behaviour with other students.

“We’re not able to say any more because of privacy legislation,” Ristock said.

“What we provide is simply the dates of employment and then the prospective employer can do their due diligence to speak and ask for reference requests from different individuals.”

Ristock said she is troubled that some students feel the university failed to take any responsibility or accountability for its disgraced former faculty members.

“That concerns me deeply and I would say that again, our commitment is to their safety, our commitment is to ensure that there aren’t misuses of power,” she said.

Karan Saxena — the lead consent culture facilitator with Justice for Women Manitoba, a group that advocates for consent culture on campus — wants privacy laws changed to allow schools to disclose details around sexual misconduct for the protection of other students.

“If I make university my second home, I need to make sure that when I come here this is a safe space for me. If my professors are the ones who are violating my safe space then that’s a big, big, big issue,” said Saxena.

“Obviously that’s something we want to prevent and it’s something that’s a concern not only to me personally but also to the university community … as we know from the Me Too movement,” said Ristock.

“We’re hearing about more and more people coming forward about their experiences of sexual harassment, sexual assault and violence.”

Privacy laws ‘highly restrictive’

A University of Manitoba law professor who has researched sexual assault policies across Canada says Manitoba institutions are bound by the same privacy laws that exist in every province and territory.

“They are highly restrictive,” said Karen Busby.

“It’s really hard for people to understand that, but privacy law is clear that a disciplinary matter is a private matter and the employer is not free to disclose disciplinary matters to the media, to future employers, to other employees, unless they need to know for compelling and safety reasons,” she said.

University of Manitoba law Prof. Karen Busby says the province’s Freedom of Information and Protection of Privacy Act and workplace health and safety laws need to be revised. (Jeff Stapleton/CBC)

“The province needs to change the FIPPA [Freedom of Information and Protection of Privacy Act] laws or the Workplace Health and Safety [Act], but until they do that, the hands of universities are tied.”

Ristock stressed that a number of new initiatives at the U of M — including a “survivor-centric” sexual assault policy currently under review, workshops, training and extra counselling support — indicate the university is taking action to protect and educate students and staff.

Mandatory consent culture training for all faculty is something the administration is considering, she said.

The school doesn’t have a policy banning relationships between staff and students, she said, but requires faculty to declare relationships and any potential conflict of interest so that proper measures can be put in place to ensure there’s no violation of authority.

CBC News asked the province whether its review into FIPPA legislation would include changes that would allow the sharing of disciplinary action between employers.

“The department is still reviewing the submissions and comparing what other jurisdictions have in place,” a spokesperson for the province wrote in a statement.

“They are expected to make recommendations later this year.”