Few workplace issues are as politically and emotionally charged as those concerning sexual harassment. In response to cultural, legal, and political shifts in recent decades, employers are expected to implement policies and procedures intended to curb the instances of these issues in the workplace. In spite of these well-intentioned efforts, however, instances of sexual harassment continue to manifest, giving rise to workplace and employment disputes which continue to require judicial guidance.
The Court of Appeal for Ontario (“ONCA”) recently released its decision in Metrolinx v Amalgamated Transit Union, Local 1587, 1 a judicial review matter of an arbitration decision by the Grievance Settlement Board (the “Board”) concerning the dismissal of five Metrolinx employees represented by the Union for sexual harassment.
The ONCA’s decision serves as an important reminder of the statutory framework governing workplaces and the responsibility of an employer to investigate sexual harassment should an incident come to its attention, regardless of whether a victim chooses to file a formal complaint. The decision also provides key guidance on the boundaries for off-duty employee conduct and the potential for overlap into workplace conduct, as well as the scope of the duty of an employer to investigate.
Background
In 2020, Metrolinx, a government-owned, regional transportation provider responsible for operating GO Transit, discovered that five employees were part of a private WhatsApp message group (the “Group Chat”) on their personal cell phones. The Group Chat included comments which were primarily about current and former women employees; the comments were derogatory, offensive, and sexist in nature. One of the employees referenced in the comments in the Group Chat (identified in the proceedings as “Ms. A”) received screenshots from the Group Chat which included comments that Ms. A had provided sexual favours in order to receive a
promotion.
While Ms. A reported the Group Chat to her supervisor, she did not file a formal complaint. However, when human resources became aware of the Group Chat messages some time later, an investigation was launched. The investigator interviewed Ms. A, who confirmed that she received the screenshots, but refused to disclose who had provided the messages from the Group Chat to her. Ms. A also confirmed that she did not want the matter investigated or pursued.
During an interview with one of the grievors (Mr. Juteram), the grievor was told by the investigator that he had an obligation to cooperate and disclose screenshots from the Group Chat, with a clear implication from the investigator that if he did not, he would be disciplined.
Following the receipt of the investigator’s report, Metrolinx terminated the five employees for cause on the basis that they had engaged in sexual harassment.
1 Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415.
The Arbitration
Following the terminations, the Union filed grievances on behalf of the five employees, and the Board referred the matter for arbitration. The underlying arbitration 2 in this matter considered the appropriateness of the termination of the five grievers following a workplace investigation into their conduct, with a focus on the content of the Group Chat and its provision to the investigator by one of the grievors.
The arbitrator ultimately found that the employer did not have just cause to terminate, and ordered reinstatement of the five employees with back pay. The arbitrator’s decision was based on findings which included, among other things, that (1) the Group Chat messages were private and constituted off-duty conduct; (2) the investigation could not be conducted in a fair and impartial manner because Ms. A did not cooperate and the employer could not act as both investigator and effective complainant; (3) Ms. A’s conduct in the investigation established that she did not believe she was a victim of sexual harassment or experiencing a hostile work environment; and, (5) there was no evidence of a negative impact in the workplace based on the content of the Group Chat.
2 Arbitration Decision: Amalgamated Transit Union – Local 1587 (Juteram et al) v The Crown in Right of Ontario
(Metrolinx), 2023 CanLII 72192 (ON GSB).
3 Divisional Court Judicial Review Application Decision: Metrolinx v. Amalgamated Transit Union, Local 1587,
2024 ONSC 1900.
Divisional Court Decision
Metrolinx applied to the Divisional Court, 3 which granted the application for judicial review and held that the arbitrator’s decision was not reasonable. The Divisional Court found that the Group Chat contents were an issue in the workplace as they had come to Ms. A’s attention in the workplace, and that there were a variety of factors that could contribute to the reluctance of a victim of harassment to advance a formal complaint. The arbitration award was quashed, and the matter was referred back to arbitration before a different arbitrator for consideration.
Ontario Court of Appeal
The Union sought, and was granted, leave to appeal the Divisional Court’s decision before the Ontario Court of Appeal, which ultimately dismissed the appeal and adopted the Divisional Court’s approach, noting that several legal errors permeated the arbitrator’s analysis, thus rendering the arbitrator’s award unreasonable.
The Court of Appeal found a variety of issues with the approach taken by the arbitrator, including that
- the Arbitrator failed to properly and “meaningfully” consider Metrolinx’s statutory obligations under the Occupational Health and Safety Act (“OHSA”), which requires employers to investigate both incidents and complaints of sexual harassment. This requirement is not dependent on whether an incident was the subject of a complaint. As a result, Metrolinx was obligated to investigate the incident when it came to its attention, regardless of Ms. A’s expressed desire to avoid filing a complaint. The ONCA specifically noted that the wording of Metrolinx’s Workplace Harassment and Discrimination Prevention Policy (which stated that investigations were initiated by complaints) could not limit its obligations under OHSA;
- the Arbitrator improperly focused on the absence of an official complaint by Ms. A, and erred in concluding that, because Ms. A did not want not to file a complaint, that the harassment did not exist and was not an issue. The ONCA specifically noted that the arbitrator’s line of reasoning in this regard relied on “….rejected myths and stereotypes about how an employee in Ms. A’s situation would respond,” and that the Supreme Court of Canada’s warnings about relying on presumptions and stereotypes in the context of matters involving victims of sexual assault extended “equally” to arbitration matters addressing sexual harassment grievances. The Court concluded that the arbitrator’s reliance on “myths, stereotypes, and presumptions” was unreasonable;
- the Arbitrator erred in principle in determining that the investigator’s insistence that Mr. Juteram disclose information about the Group Chat from his personal mobile phone constituted a violation of the negotiated limitation on Metrolinx’s entitlement under the collective agreement. The ONCA found that the investigator was aware of the concerning content in the Group Chat because of Ms. A, which meant the investigation was warranted, and held that Mr. Juteram referenced the Group Chat while speaking with the investigator in an attempt to clear himself of responsibility, and in doing so, made it clear to the investigator that Mr. Juteram still had access to the Group Chat. In order for the investigation to continue appropriately, the investigator wanted to see the messages from the Group Chat to avoid dealing with the comments in isolation, and the messages from the Group Chat were within the scope of the investigation into workplace misconduct.
In addition to the above, the ONCA noted that the comments from the Group Chat had made their way into the workplace and therefore became a workplace matter, and the arbitrator’s determination that the communications did not “manifest within the workplace” failed to withstand scrutiny and was inconsistent with the facts in issue. In addition, the Court of Appeal expressly rejected the Union’s challenge to the Divisional Court’s determination that the arbitrator erred in concluding that the investigation could not occur after Ms. A declined to participate, and also noted that the issue of whether the communications occurred off duty was not separable from the issue of whether the employer had authority over off-duty conduct.
In light of these errors and issues, the ONCA dismissed the appeal and confirmed the order made by the Divisional Court. The matter was remitted back to the Board for the appointment of another arbitrator to determine the matter in accordance with the Court’s reasons.
Takeaways
(1) Proactive Investigations Are Required
The Court of Appeal has made abundantly clear that investigations into harassment incidents must occur proactively, even in the absence of a formal complaint. Regardless of an organization’s internal policies, an employer’s duties and responsibilities under the OHSA legislation reign supreme. While Metrolinx’s internal policy stated that investigations were to be “initiated by a complaint”, the ONCA was clear that employers cannot write themselves out of the obligations set out in the legislation, and policy language cannot supersede the statutory demands placed on employers. The conduct of the five employees constituted workplace sexual harassment under s.1(1) and triggered Metrolinx’s duty (under s.32.0.7) to investigate “incidents and complaints” of sexual harassment. As a result, the ONCA found that Metrolinx was obligated to investigate the situation, regardless of Ms. A’s decision to file complaint or not.
This case demonstrates that not only do courts take the obligations placed on employers under the OHSA legislation seriously, but that the expectation is that employers will take immediate steps to ensure employees enjoy a workplace free of demeaning and offensive conduct.
Metrolinx acted appropriately in this regard, and its approach was subsequently endorsed by the Divisional Court and the Ontario Court of Appeal.
(2) Myths and Stereotypes have No Place in Workplace
Investigation Matters
Regrettably, despite the existence of policies, procedures, and practices intended to discourage and prevent sexual harassment in workplace settings, this conduct unfortunately still occurs, resulting in significant harm and cost to employees and employers alike. The ONCA was unequivocal in finding that the arbitrator’s reasoning was deeply flawed in coming to conclusion that Ms. A’s failure to initiate a formal complaint somehow meant that there was no real issue to be addressed, and that it was not appropriate to form an adverse inference on this basis.
As the ONCA specifically noted, reliance on myths and stereotypes about the expected conduct of victims of sexual assault and harassment leads to antiquated and, ultimately, unreasonable conclusions. Decision makers, including arbitrators, must remain vigilant and actively interrogate their own reasoning to avoid harmful and erroneous assumptions concerning how real victims ought or should behave in certain situations. The failure of an employee to file a formal complaint does not absolve employers of their statutorily mandated obligation to
investigate instances of sexual harassment when they become known.
Conclusion
Ultimately, this case reaffirms the framework for investigations into sexual harassment in the workplace, and reiterates for employers that the obligation to investigate such conduct must be taken seriously. The Court of Appeal’s decision is clear that, under the applicable statutory framework, workplace harassment is a very real issue that must be taken seriously and addressed accordingly by employers.
Comprehensive workplace policies and, when issues arise, comprehensive investigation planning can help employers avoid common pitfalls in matters such as this, and are essential tools for employers to continue to conduct business efficiently and effectively when workplace issues arise. With the right framework in place, employers can be assured that when problems do occur, they will be handled swiftly and in a manner that will stand up to scrutiny.
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