'The employer has to investigate, and if they don't investigate, they violate their obligations,' says lawyer discussing common employer misconceptions
A recent Ontario Court of Appeal decision has reaffirmed that employers have a duty to investigate incidents of workplace harassment, even if no formal complaint is made, and even if the conduct occurs off-duty.
The case, Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415, involved the dismissal of five Metrolinx employees for sexual harassment after derogatory comments about a female coworker were made in a private WhatsApp group.
The workers’ union Amalgamated Transit Union, Local 1587, grieved the dismissals; the arbitrator ordered reinstatement, but the courts ultimately found the arbitrator’s reasoning flawed and remitted the matter for reconsideration.
As the court stated, “Metrolinx was statutorily obligated to investigate the incident even in the absence of a complaint” and “off-duty conduct can give rise to discipline if it manifests in the workplace as it did in this case."
Duty to investigate: lower bar than many expect
According to Stuart Rudner, employment lawyer and mediator at Rudner Law in Toronto, the Metrolinx decision underscores that the threshold for triggering a workplace harassment investigation is lower than many employers realize.
“The word ‘harassment’ or ‘bullying’… you don't have to say the magic words,” he says.
“If there are rumours, whispers, comments, if there's some reason to think that harassment is taking place, that's enough to trigger the need to investigate.”
Daniel Chodos, employment lawyer at Whitten Lubin, notes that many employers, especially smaller ones, fall short in this area.
“I think that one of the mistakes some employers make, and particularly employers that aren't quite as big as Metrolinx, would be that they either don't have a complaint mechanism in place … they haven't complied with the various training requirements, because they're actually quite a bit more stringent than a lot of people realize.”
The court’s decision also makes clear that the wishes of a complainant do not have bearing on investigative or court outcomes; as Howard Levitt, employment lawyer at Levitt Sheikh, explains, it’s a common point where misinformed employers expose themselves to risk.
“It does not matter if an employee who's a victim of abuse or harassment wants to complain. It does not matter if they're humiliated, embarrassed by the whole thing and want it to be buried and hidden and not talked about again,” he says.
“The employer has to investigate, and if they don't investigate, they violate their obligations. The court made it pretty clear that stamping out harassment is not just a matter of stamping out harassment for the employee who was harassed, it’s stamping out harassment for the sake of the entire workplace.”
No complaint? Not a reason to avoid workplace harassment investigation
The union’s original grievance argued that the victim’s lack of formal complaint meant Metrolinx should not have pursued the investigation; as Chodos explains, “There were old-fashioned and stereotypic assumptions being made about why the victim didn't come forward.”
Both the Divisional Court and the Court of Appeal rejected that argument, affirming that investigation are triggered regardless of complainant’s involvement.
“That kind of assumption is false,” Chodos states.
“As soon as a manager gets wind of a complaint, it should be addressed in an appropriate way. If the complainant chooses not to participate in the process, so be it. But that doesn't excuse a company from its obligation to address complaints when they become known.”
Off-duty misconduct conduct: no safe harbour
The Metrolinx case also confirms that off-duty conduct, including private digital communications, is not immune from scrutiny if it impacts the workplace. Chodos stresses that while this fact is not new, the increase of employee digital and online communication has been making things more challenging for employers in recent years.
“We're going to see more and more of it with the rise of social media, with the influence of group chats. Twenty years ago, that was far less of an issue,” Chodos says.
“When you top that off with the rise of AI … from so many different perspectives, it's very important, for society as a whole, that we get a handle on this and understand the way that the judicial system is going to handle it.”
Pressure tactics and evidence: employer rights clarified
The Metrolinx decision also addressed the contentious issue of compelling employees to produce evidence; during the course of its initial investigation, Metrolinx told the employees they would be disciplined if they didn’t share the WhatsApp messages in question. The union grieved this action, arguing that the coercion should have negated the evidence presented.
According to Levitt, this is another common employer misconception: “They believe that employees have privacy rights that they don't have.”
“It is okay to pressure and coerce employees into handing over relevant evidence, and disciplining or discharging if they refuse to,” he says.
“Employers have an obligation to demand production of relevant information, and they can discipline employees for not turning it over, and they can use the information. There's no defense, like in the criminal context, to evidence being obtained through coercion not being admissible. It's admissible. If it's relevant, it's admissible.”
Levitt goes on to explain that since in criminal law evidence obtained through coercion or other improper practices will often be illegal, employers think the same is true in the employment law context.
“Employers should understand that if there's relevant evidence, the employee can't refuse to turn it over. In fact, the employer has an obligation to seek it out and ask for it.”
Investigation vs prosecution: objectivity is key
Rudner cautions against biased investigations, stressing that investigations should always begin from a point of neutrality.
“An investigation is very different than a prosecution. Some employers conduct an investigation with a predetermined outcome in mind, and that's the opposite of being objective,” he says, explaining that courts will examine factors such as which witnesses are interviewed, what questions were asked, and what type of evidence was considered during an investigation.
“In some cases, they found that it was more like a prosecution or a witch hunt, as opposed to being an effort to just determine objectively what happened, which is what an investigation should be … remember that the goal of an investigation is to objectively determine what happened, not to either prove or disprove a certain allegation.”
