Recent case in Ontario shows employee's refusal to make harassment complaint doesn't override health and safety obligations
The Ontario Court of Appeal’s ruling in Metrolinx v. Amalgamated Transit Union, local 1587, 2025 ONCA 415, reaffirms employers’ statutory duty to investigate complaints of workplace discrimination and harassment irrespective of whether the employee who is a recipient of the impugned conduct wants the matter investigated. It also reminds employers that an investigation into an employee’s off-duty conduct may flow from the same obligation should the impugned conduct “manifest in the workplace.”
Metrolinx concerns the for-cause termination of five Metrolinx employees in the Toronto area following an investigation into a WhatsApp group chat that the employees were participants in on their personal cellphones during off-duty hours. The messages contained sexist and problematic comments about a female colleague, Ms. A. Ms. A provided her superior with screenshots of the WhatsApp conversation but did not file a formal complaint against the employees and did not want the matter investigated.
Notwithstanding Ms. A’s position, Metrolinx launched an investigation into the employees’ group chat messages in compliance with its obligations under the Ontario Occupational Health and Safety Act, naming itself as a complainant in Ms. A’s stead. The investigator concluded that the employees engaged in sexual harassment. Metrolinx, in turn, terminated its employment relationship with the employees for cause - a decision which the employees subsequently grieved.
Statutory duty to investigate
The arbitrator allowed the grievances and reinstated the employees. However, on judicial review, the Ontario Divisional Court overturned that holding and returned the matter to a different arbitrator. The union appealed the court’s ruling to the Court of Appeal (ONCA), which the ONCA subsequently dismissed.
The ONCA upheld the Divisional Court’s ruling, holding that Metrolinx, as an employer, had a statutory obligation to investigate incidents of discrimination and harassment even in the absence of a formal complaint. The appeal court opined 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.” The ONCA also held that off-duty conduct “can give rise to discipline if it manifests in the workplace,” noting that it did in this instance.
Overall, Metrolinx reminds employers that they have a statutory duty to investigate incidents of workplace harassment and discrimination even if the complainant refuses to participate in the investigation process and fails to file a formal complaint. This duty appears to be owed to the recipient of the problematic conduct specifically, and all the employer’s employees generally.
It also serves as a cautionary tale to employees that their off-duty conduct can be disciplined by their employer it if “manifests” in the workplace.
Shadé Edwards is a lawyer at Turnpenney Milne in Toronto, specializing in employment, civil, and commercial litigation.
