Court of Appeal Clarifies Employer Obligations
In Metrolinx v Amalgamated Transit Union, Local 1587, the Court of Appeal for Ontario reaffirmed that employers have a legal duty to investigate workplace harassment even if:
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The incident occurred off-duty, on personal devices, or on a private platform; and/or
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There is no formal complaint from the person affected.
Case Background
Five Metrolinx bus drivers engaged in explicit and sexist discussions in a private WhatsApp group. Screenshots reached a female colleague, who informed her manager but chose not to file a formal complaint. Metrolinx investigated under its workplace harassment policy and terminated the employees for cause.
An arbitrator reinstated the employees, ruling the employer had no authority to investigate without a formal written complaint and because the conduct occurred outside of work. The Divisional Court overturned the decision, and the Court of Appeal upheld that ruling.
Key Legal Findings
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Statutory Duty Under OHSA: Employers must investigate both “incidents and complaints” of harassment under Ontario’s Occupational Health and Safety Act (OHSA).
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No Complaint Required: A victim’s reluctance to complain does not relieve the employer of its duty to investigate.
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Off-Duty Conduct Counts: Harassment that occurs outside of work but makes its way into the workplace becomes a workplace issue.
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Policies Must Align with Law: Internal policies cannot restrict an employer’s legal obligations under the OHSA.
What Employers Should Do
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Review and update harassment policies to allow for investigations without a formal complaint.
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Provide training so employees understand what harassment is, how to report it, and that all incidents will be investigated.
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Be prepared to investigate off-duty or digital conduct that impacts the workplace.
Source: This summary is based on Sherrard Kuzz LLP’s July 2025 briefing note.
