The Ontario Court of Appeal has upheld Metrolinx’s termination of five transit employees who made sexually harassing comments about a female colleague in a private WhatsApp group, overturning an arbitrator’s decision that had ordered their reinstatement.
Metrolinx dismissed five members of Amalgamated Transit Union, Local 1587 after learning they participated in a WhatsApp group where they made “negative, derogatory, and sexist comments” about other employees. The messages included allegations that one female employee, identified as Ms. A., “performed sexual favours for career advancement.”
Ms. A. received screenshots of the messages in 2019 and reported them to a supervisor but chose not to file a formal complaint. When Metrolinx’s human resources team became aware of the messages months later, the company launched an investigation and subsequently fired all five employees for sexual harassment.
The union grieved the dismissals, and an arbitrator ordered the workers’ reinstatement. However, the Divisional Court granted Metrolinx’s judicial review application, finding the arbitration award unreasonable. The union appealed to the Court of Appeal, which dismissed the appeal.
Arbitrator’s flawed reasoning
The original arbitrator made several key findings that the Court of Appeal later determined were unreasonable. He concluded Metrolinx lacked authority to discipline the employees because they communicated on personal cellphones while off duty through an encrypted platform intended to be private among themselves.
The arbitrator reasoned that since the employees used WhatsApp, “an encrypted means of communication,” and “reasonably believed and intended their comments to be private amongst themselves,” the situation was equivalent to having “made their comments at a backyard barbecue amongst themselves.”
He also found that the harassment’s impact was not “manifested within the workplace” because Ms. A. had not filed a formal complaint and other mentioned employees appeared unaware of the offensive messages.
Additionally, the arbitrator criticized Metrolinx for procedural failures, including treating itself as the complainant when Ms. A. refused to file a complaint and forcing an employee to disclose WhatsApp messages from his personal phone.
Court’s analysis
The Court of Appeal identified several fundamental legal errors in the arbitrator’s reasoning that rendered the award unreasonable.
Statutory obligations ignored
The court found the arbitrator failed to address Metrolinx’s statutory obligations under the Occupational Health and Safety Act (OHSA). Under section 32.0.7 of the OHSA, employers must investigate both “incidents and complaints” of workplace harassment, meaning an investigation is required even without a formal complaint.
“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 court noted.
Victim-blaming stereotypes
The court criticized the arbitrator for relying on “myths, stereotypes and presumptions” about how harassment victims should behave. The arbitrator had concluded that Ms. A.’s reluctance to pursue a complaint meant there was no harassment or workplace impact.
“The reluctance of a victim of sexual harassment may be caused by many factors, but that reluctance does not relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention,” the court stated.
The ruling referenced Supreme Court warnings about relying on presumptions about sexual assault victims, extending this principle to sexual harassment cases.
Workplace impact established
Contrary to the arbitrator’s findings, the court determined the harassment did manifest in the workplace. The agreed statement of facts showed the messages “upset [Ms. A.] at the time she reviewed them. She recalls getting emotional at work when she first saw the messages.”
The court noted that regardless of where the conduct originated, “it made its way into the workplace and became a workplace issue.” The private nature of the WhatsApp group was irrelevant since participants were “free to, and did, forward the message to other employees.”
Investigation authority confirmed
The court rejected the arbitrator’s finding that requiring disclosure of WhatsApp messages violated the collective agreement. Since the investigator learned of concerning messages about Ms. A. that warranted investigation, requesting the full conversation was appropriate to properly assess the situation.
“The texts fell within the purview of an investigation into workplace misconduct,” the court concluded.
The case has been sent back to a different arbitrator to reconsider the appropriate penalty, though the Court of Appeal’s analysis suggests the terminations were justified given the statutory framework governing workplace harassment.
“As agreed, the Union shall pay Metrolinx costs in the amount of $20,000, all-inclusive,” the court said.
For more information, see Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415 (CanLII).
