The Ontario Court of Appeal has made it clear that employers cannot remain passive in the face of workplace harassment once they become aware of it – even in the absence of a formal complaint. In Metrolinx v Amalgamated Transit Union, Local 1587 [Metrolinx], the Court upheld a Divisional Court decision that quashed an arbitrator's award reinstating five employees whose employment was terminated following an investigation into off-duty conduct, finding the arbitrator's reasoning to be unreasonable and legally flawed.
This decision confirms that employers have a statutory obligation to investigate harassment when it arises – regardless of whether a complainant steps forward. It also signals that arbitrators must avoid relying on outdated assumptions about how victims of harassment "should" behave.
Background
In 2020, Metrolinx dismissed five employees after investigating sexist and derogatory WhatsApp messages, including lewd speculation about a female colleague, "Ms. A". While the group chat was private, screenshots of the messages were shared with Ms. A while she was at work, visibly upsetting her. Although she chose not to file a formal complaint or participate in the investigation, Metrolinx proceeded with a workplace investigation and ultimately dismissed the five employees for cause.
Procedural History
The Amalgamated Transit Union [the "Union"] grieved the dismissals, and in a decision released in July 2023, the arbitrator reinstated all five grievors, finding that the messages were exchanged in a private forum, lacked sufficient workplace impact, and that Metrolinx had failed to follow aspects of its own investigation policy, since there was no "complainant". The arbitrator also found that Ms. A's refusal to participate demonstrated that she did not believe that she was a victim of sexual harassment.
Metrolinx brought an application for judicial review, and in April 2024 the Divisional Court quashed the arbitrator's decision, holding that it was unreasonable, referencing the definitions of harassment and workplace sexual harassment under the Ontario Human Rights Code as well as the Occupational Health and Safety Act (OHSA), and an employer's duties under the OHSA. The Court also emphasized the arbitrator's flawed reliance on the absence of a complaint.
The Union appealed to the Ontario Court of Appeal, which upheld the Divisional Court's decision and confirmed that a new arbitrator must rehear the case.
The Court of Appeal's Decision
The Court confirmed that an employer's duty to investigate arises when it becomes aware of an incident, not only when a formal complaint is filed. In this case, Metrolinx was aware that the messages had been shared in the workplace, that they had caused visible distress to Ms. A, and that they had circulated among other employees. That knowledge was enough to trigger an obligation to investigate.
The Court rejected the arbitrator's conclusion that the messages were merely private or off-duty conduct. Once the messages entered the workplace and had an impact, they became a workplace issue. The Court also rejected the idea that Ms. A's silence or refusal to file a complaint meant there was no harm, stating that relying on that reasoning is inconsistent with modern, trauma-informed approaches to harassment and perpetuates outdated assumptions about how victims should behave.
Finally, the Court addressed Metrolinx's internal investigation policy, which provides that a complaint initiates the process. The Court confirmed that internal policies cannot override the employer's statutory duty to investigate. Even if no complaint is made and a policy suggests otherwise, the OHSA imposes a clear legal obligation to investigate harassment incidents when they come to an employer's attention.
Key Takeaways for Employers
- Employers must investigate harassment, even without a complaint: The OHSA requires employers to act when they become aware of potential harassment, whether a formal complaint has been filed or not.
- Off-duty conduct can still be workplace harassment: Off-duty messages may give rise to discipline in the workplace. Once comments are shared at work and affect people within the workplace, they are no longer "private".
- Internal policies cannot override the law: Even if your workplace policy says that investigations must begin with a complaint, this decision confirms that employers are still bound by their statutory duty to investigate incidents of harassment, as well as complaints.
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