Employers have a responsibility for maintaining a safe workplace, which includes a workplace free from bullying, harassment, and sexual harassment. That has been the law in Ontario for many years now, and most employers understand their duty towards workplace safety. However, those obligations go farther than you might think.
In a recent case of Metrolinx v. Amalgamated Transit Union, Local 1587 (2025 ONCA 415) involving the transit authority Metrolinx shows what happens when a small group of workers create an unsafe workplace and why employers need to take sexual harassment seriously.
The case
Metrolinx is the transit authority for the Province of Ontario, and the operator of GO Transit. In 2019, 5 of its employees had started a private WhatsApp thread where they were saying inappropriate things about a female colleague, including allegations that she had traded sex to advance her career. The female employee found out, and reported them to her supervisor, but did not file a formal complaint.
When HR learned about the messages in 2020, they launched a formal investigation. They interviewed the female employee, who confirmed that she did not want the matter investigated, but the investigation continued and one of the employees in question showed HR the WhatsApp messages. Ultimately all 5 employees were terminated for cause. The 5 employees, through their union, grieved the terminations and were reinstated to their jobs.
The arbitrator who overturned the terminations said that the employer had to demonstrate that the messages had a real negative impact on the workplace as opposed to just a hypothetical one. The fact that they were on private devices outside of the workplace, on an encrypted platform like WhatsApp, was enough to make it outside the bounds of the workplace. Furthermore no other employees were impacted, only the one target, who had said she was stressed over the investigation itself.
The arbitrator ultimately concluded that a ‘much lesser penalty’ may have been appropriate, especially since Metrolinx did not have authority over that off-duty conduct. The workers in question were restored with no loss of seniority or compensation.
But wait, there’s more! Metrolinx then challenged the decision in the Divisional Court, who disagreed and ruled that the arbitrator was wrong. The union appealed, and the Court of Appeal ruled once again favour of Metrolinx! In that ruling, the Court of Appeal offers employers some key lessons about how to treat workplace sexual harassment.
The takeaways
First, the Court ruled that the arbitrator was wrong when they said that the employee’s decision not to file a complaint should have been the end of the matter. Under the law, in this case the Occupational Health and Safety Act, employers have a duty to investigate incidents and complaints.
It did not matter that the employee did not want an investigation done on her behalf, because the incident had an impact beyond just her. The Court of Appeal also noted that the arbitrator ignored the many reasons why the individual may not have wanted to pursue a complaint, such as shame or embarrassment.
The arbitrator assumed the way that they thought a victim would behave, and made a conclusion when the employee did not follow that pattern. As the Court of Appeal explained, “the Arbitrator erred by concluding that Ms. A’s reluctance to pursue a complaint meant that there was no harassment; this line of reasoning relies on rejected myths and stereotypes about how an employee in Ms. A’s situation would respond.” Just because she did not complain formally, it does not mean she was not impacted by the harassment.
The Court of Appeal went further, explaining that “an employer’s duty to investigate is not just a duty owed to the victim, but to all employees, who have a right to work in an environment free from demeaning and offensive comments.” To make this about one employee is too narrow a view – that does not determine how other employees may be impacted by this same behaviour, and it truly is never okay.
Lastly, the Court of Appeal ruled that these messages do not escape scrutiny because they took place outside the workplace. The employer became aware of the messages, which triggered the investigation. During one of the investigation interviews, the investigator learned the messages were still accessible, and so asked to see them. The Court confirmed that “off-duty conduct can give rise to discipline if it manifests in the workplace.” This was not out of bounds at all.
What does this mean for employers?
Employers need to be on the lookout for signs of bullying and harassment, even if they’re happening off-hours but involving people at work. Having a thorough bullying and harassment policy is crucial (and legally required), but even if you catch wind of something going on, you are required to investigate. Your responsibility is to your employees, and maintaining that safe workplace.
If you think you might need a workplace investigation you probably do. Don’t worry, we’re here to help. We have experience both conducting investigations and guiding employers through the investigation process. We routinely advise employers throughout the Cambridge, Kitchener, and Waterloo Regions on how to draft policies that protect the workplace, and how to deal with harassment when it happens. Contact us today to learn more.