Speaker at upcoming Canada Employment Law Masterclass explains why social media posts are redefining workplace obligations
When an employee expresses a controversial political view online, tags no employer, and lists no job title, most would assume they’re operating in a private sphere. Increasingly, that assumption is landing in human resources (HR) departments – and there are no easy answers waiting there.
Rick Dunlop, partner and practice group leader, labour and employment at Stewart McKelvey in Halifax, has spent much of 2026 navigating one of Canadian employment law's most difficult emerging tensions: what happens when an employee's off-duty online speech filters back into the workplace – and what obligations does that create for employers caught in the middle?
Dunlop will be presenting a case study session on workplace culture, harassment, and off-duty conduct at the Canada Employment Law Masterclass – running virtually on Sept. 29, 2026 – and he’s candid about the complexity involved. "I'm not sure there's a perfect answer to it," he says. But he’s equally clear about one thing: the issue is already here.
"It's going to happen to you, because there’s a tendency in 2026, if you have a view, to express it online,” says Dunlop. “And if you have a controversial position, often there’s a real tendency to want to express that."
Two categories, two very different off-duty problems
Not every off-duty conduct case carries the same legal weight. Dunlop draws a distinction between the scenarios that are relatively well-settled in Canadian arbitration and the courts, and those that are not.
The clearest cases – where one co-worker directs online comments at another – tend to have a defensible path forward, according to Dunlop. The connection to the workplace is direct, the impact on colleagues is measurable, and the legal basis for discipline, including termination, is grounded in established case law. A recent Ontario Court of Appeal ruling – Metrolinx v. Amalgamated Transit Union, local 1587, 2025 ONCA 415 – has reinforced this framework, with the court affirming that employers have a statutory duty to investigate off-duty harassment that manifests in the workplace– even where the employee who experienced it has not filed a formal complaint.
A second category of cases is considerably harder, says Dunlop. These involve employees who express personal political or ideological views online, make no mention of their employer, and yet become the subject of complaints from colleagues or external interest groups who have connected the dots.
"The tension is on the one hand, that employee who's representing those views, whether you agree with them or disagree with them, probably has really nothing to do with the workplace and they're allowed to hold those views," Dunlop says. "But when other employees know about those views and then they express, ‘I don't want someone who holds those views. I don't want to have to work with them.’"
In such circumstances, the employer is caught between two legitimate interests it can’t fully satisfy at once, he says.
Dunlop points out how easily the link between a person and their employer through online searches, and that ease of identification shifts the risk calculus even when an employee has taken no deliberate steps to associate their views with their organization. Once an interest group makes that connection and approaches the employer – sometimes signalling awareness of its clients or business partners – the pressure to act collides directly with the legal risk of acting, he says.
Public-sector employers face a further complication: charter rights apply in a way they don’t for private sector operators, making any decision to discipline or terminate on the basis of speech considerably more legally fraught, according to Dunlop.
What the gaps in most policies look like
Many Canadian organizations built their social media and off-duty conduct policies years ago, and the environment those policies were written for no longer exists, says Dunlop.
"Where the gaps would be is if they don't even talk about your online presence and not bringing it to the employee's attention, that your comments could have an impact in the workplace," he says.
The legal standard Canadian employers are expected to apply – whether off-duty conduct prejudices the employer – is relatively clear in theory and considerably harder in practice, says Dunlop, adding that no document can anticipate every scenario. What it can do is signal to employees that in 2026, the line between private and professional is blurrier than it once was.
He also warns against over-prescribing, as an overly restrictive approach carries its own cost: the message that an employer monitors and regulates what employees think and say becomes a recruiting liability. "Why do I want to work for them? They're telling me what I can think and say," says Dunlop, reflecting the reaction some candidates or staff may have.
The answer Dunlop advocates is nuance – a framework rather than a list of prohibitions, one that makes the risk visible and preserves discretion. Building a social media policy that stands up in court generally includes proportionality, documentation, and enforceability as the core pillars, he says.
When the calculus becomes impossible
Even with a sound policy in place, some situations will not produce a clean answer, Dunlop acknowledges. There will be times, he says, when employers must consciously choose between two forms of legal and reputational exposure. "I think a lot of employers would probably have to pick that employment litigation risk, not that they would want to" he says – accepting a potential wrongful dismissal claim rather than the alternative harm to the business or its workforce.
That decision becomes even more painful when the employee at the centre of the situation is a strong performer. "Particularly if those employees with those controversial views are actually really good employees, then it becomes even harder because then you're losing someone that's quite valuable to your organization," says Dunlop.
Every case Dunlop has handled has been hard – and they’re only going to become more common, he says.
What HR leaders should take away
Dunlop's session at the Canada Employment Law Masterclass centres on real case scenarios rather than theoretical frameworks. His goals for attendees are clear and practical.
The first is awareness: this issue will arrive, if it hasn’t already, he says. The second is acceptance of the fact that the issue is inherently complex and there are no clean answers. The third is preparation: "You have to have a policy that recognizes this but also recognizes the nuances and provides for discretion as to how you're going to approach it," he says.
Staying current on how Canadian courts continue to interpret the limits of employer authority over off-duty online conduct is no longer optional – it’s a requirement for managing the risk, according to Dunlop. Those who haven’t yet encountered this issue in their organization should not assume they’re exempt.
The preparation, Dunlop says, should start now.
Registration for the Canada Employment Law Masterclass on Sept. 29 – featuring Dunlop’s session, “Case Study: Workplace Culture Under Pressure – From Harassment to Activism and Off-Duty Conduct” and many more sessions – is open now.
