What constitutes ‘harassment’ — even without a complaint?

The recent Ontario Court of Appeal decision concerning five Metrolinx employees — who were fired, reinstated after an appeal, then let go again because of off-duty misconduct — is a reminder to employers that the duty to investigate extends beyond the borders of the workplace. 

That duty also does not excl ude rumours or allegations without formal complaints, the decision made clear for the second time, emphasizing that an employer’s obligation to investigate harassment is triggered by knowledge of an incident, not by the filing of a formal complaint. 

“The arbitrator’s focus on the absence of an official complaint by Ms. A. is based on a failure to recognize that there are many reasons why a victim of harassment might choose not to pursue an official complaint, none of which erase the harassing behaviour or the employer’s obligation to investigate it in order to protect the workplace from a hostile or demeaning environment,” the court’s decision stated. 

“The arbitrator erred by concluding that Ms. A’s reluctance to pursue a complaint meant there was no harassment; this line of reasoning relies on rejected myths and stereotypes about how an employee in Ms. A’s situation would respond.” 

Investigating workplace harassment without a complaint 

Laws around workplace harassment have evolved along with the rise of social media and other digital modes of employee communication, says Shana French, employment lawyer at Littler in Toronto, noting that harassment complaints used to be far more the onus of the complainant to adhere to reporting rules and regulations.  

“The employer would investigate it if it was ‘filed on the pink form, section one, dash seven,’” she says; however, harassment is now treated like any workplace safety issue, rather than individual experiences. 

“Much like if you see a wire that's live and flapping, someone doesn't have to say to you, ‘There's a flapping wire.’ You, as an employer, have to take appropriate steps to assess the risk that that poses into the workplace and to take appropriate remedial action,” French says. 

“So the fact that you don't have a complainant bringing the complaint forward from a personal experience does not remove an employer's obligation to address the potential safety risk.” 

From individual complaints to workplace obligations 

The Court held that “regardless of where the impugned conduct originated, it made its way into the workplace and became a workplace issue.” This means employers must be proactive in investigating when they become aware of potential harassment, even if the information is received second or third hand.  

In Metrolinx, a group chat was shared with “Miss A” in which she and some other employees were referred to in derogatory ways. She was “visibly upset” and told a supervisor at the time, but work didn’t get back to the employer until much later, at which point she no longer wanted to be involved. 

According to French, the Metrolinx decision reflects a broader shift in Canadian employment law – one that’s especially relevant now as workplace interactions increasingly occur on digital platforms and the lines between on- and off-duty conduct are blurred. 

What matters more is how compelling the evidence is, French says, pointing out that the ability for screenshots to prove or disprove allegations make them especially valuable for decision-makers. 

“When you're talking about social media platforms, and ways that messages like this are being captured and preserved … you don't have to wonder when something is second, third or fourth hand, because you still have integrity in the evidence,” she says. 

“It doesn't change your duty to investigate, if you've become aware that employee ‘A’ did something or said something, employee ‘B’ found out about it and told employee ‘C’, and employee ‘C’ told HR. If you have a reasonable concern about the health and safety risk or the veracity of that event, then it ought to be investigated.” 

Investigating off-duty and online conduct 

The Metrolinx case also highlights the complexities of investigating off-duty and online misconduct.; the Court confirmed that employers can – and must – investigate off-duty conduct when it manifests in the workplace, even if it occurs on encrypted platforms or personal devices.  

However, French cautions that employers should approach requests for access to personal devices “very carefully,” balancing urgency to gain evidence before it is deleted or altered, with employee privacy.  

This makes requesting access to personal devices a case-dependent decision that must be made by the investigator based on the seriousness of the allegations.  

In Metrolinx, the employer obtained WhatsApp messages after one employee voluntarily shared them.  

“Once you see something, there might be something else on there that you had no right or colour of a right to see,” she says. 

“To the extent that there are messages and it's a specific chat platform, then the question might be appropriately narrowed to, ‘Do you have your phone with you?’ Yes. ‘Is this your only phone?’ Yes. ‘And do you have the WhatsApp platform on your phone?’ Yes? ‘Are you prepared to show me?’ You're not directing that they hand it over, you're inquiring. Because you don't have the authority that a police officer would have in an investigative capacity.” 

Best practices for investigations: fairness, planning, and bias 

The original grievance against the firings argued that Metrolinx’s failure to follow its own “Workplace Harassment and Discrimination (WHD) Prevention Policy” meant the investigation wasn’t valid and its decision to terminate should be overturned. Metrolinx had applied a zero-tolerance approach to the five employees, which the union said violated the collective agreement.  

That arbitrator initially agreed; however, as the Ontario Supreme Court in 2024, and now the appeals court, have now made clear, investigation processes and policies are not judged by their adherence to rules. 

French echoes this, stressing that workplace investigations do not need to be “perfect.” 

“When you're conducting investigations, a standard of perfection is impossible. You have to think about what's fair and balanced,” she says, and cautions against outdated, adversarial approaches which courts may not take kindly to in today’s landscape. 

“There used to be a very old style … of pushing, pushing, pushing the witnesses, and maybe making suggestions to the witnesses about information that you had, or coming really hard at witnesses,” she says.  

“That style of investigation is not an effective style for workplace investigation, particularly with respect to harassment or sexual harassment.” 

Implicit bias can influence investigations into harassment 

A failure to investigate allegations without a complaint can largely be explained by looking at implicit bias, says French. 

“In Metrolinx, the employer acted appropriately, and they conducted an investigation and they issued disciplinary action, and it took three levels of decisions to legitimize that,” she says. 

Conducting fulsome, fair investigations requires employers and HR managers do extra work on the front end, French says, to identify any bias that might be influencing decisions or perceptions. 

“When it comes to mitigating the impact of implicit bias, it really comes again to that prep work that an investigator has done, to challenge themselves with how they're seeking the information, how they're asking the questions, and how they're assessing credibility,” says French, adding that there is no shortage of resources for professionals to be aware of the issue. 

“There are a lot of programs and educational opportunities that anyone doing workplace investigations in 2025 ought to be familiar with, to ensure that they are checking some of that implicit bias as they work through investigations.”