Executive Summary: Key Legal and Evidentiary Issues

• Whether off-duty private WhatsApp messages among employees justified workplace discipline

• Applicability of employer's harassment policy to conduct outside of working hours

• Impact of unreported harassment on workplace environment and employer obligations

• Whether Metrolinx followed fair investigative procedures as required under its own policy and collective agreement

• Arbitrator’s failure to consider statutory duties under Ontario’s Occupational Health and Safety Act

• Court’s scrutiny of myths and stereotypes about victim behavior in harassment cases

Facts and procedural background

In 2019, a female employee of Metrolinx, referred to as Ms. A, received screenshots of private WhatsApp messages between five male coworkers. These messages were derogatory and included sexually suggestive remarks implying Ms. A performed sexual favors for career advancement. Although Ms. A showed the messages to a supervisor, she did not formally file a complaint. In 2020, Metrolinx’s human resources department became aware of the messages and launched a formal investigation. Despite Ms. A’s reluctance to participate, one of the employees involved (Mr. Juteram) provided screenshots to the investigator, under threat of discipline. Subsequently, all five employees were terminated for cause based on sexual harassment.

The employees’ union, Amalgamated Transit Union, Local 1587, grieved the terminations. Arbitrator Gordon Luborsky ruled in favor of the union on July 20, 2023. He concluded the WhatsApp messages were private off-duty communication not subject to discipline and determined that the employer failed to show a “manifest impact” on the workplace. He also found procedural failures in Metrolinx’s investigation and ruled that termination was not a proportional penalty. The arbitrator ordered reinstatement of all five employees with full back pay and compensation.

Divisional Court decision

Metrolinx sought judicial review. On April 2, 2024, a three-judge panel of the Divisional Court found the arbitrator’s decision unreasonable. It held that the arbitrator failed to adequately consider the statutory obligations imposed on employers under the Occupational Health and Safety Act (OHSA), which require investigations of harassment incidents even in the absence of a formal complaint. The court found that the WhatsApp messages had indeed entered the workplace and had an emotional impact on Ms. A at work, triggering Metrolinx’s obligations. It also criticized the arbitrator’s reliance on outdated views about victim behavior. The Divisional Court quashed the arbitration award and sent the matter back to the Grievance Settlement Board for a new hearing before a different arbitrator.

Court of Appeal decision

The union appealed to the Ontario Court of Appeal. The appeal was heard on April 4, 2025, and the decision was released on June 6, 2025. The Court of Appeal dismissed the union’s appeal and upheld the Divisional Court’s ruling. Writing for the court, Justice Lauwers emphasized that off-duty conduct can be subject to discipline if it affects the workplace. The court found that the arbitrator made multiple errors in both legal reasoning and fact-finding. Specifically, the arbitrator failed to recognize the broad statutory duty to investigate harassment incidents under the OHSA, and wrongly dismissed the relevance of Ms. A’s emotional reaction in the workplace. The court also found no conflict of interest in Metrolinx initiating the investigation, even in the absence of a formal complainant. It ruled that the arbitrator’s reliance on the lack of formal complaint and his reasoning about privacy expectations in encrypted chats misapplied established legal principles.

The Court of Appeal confirmed that Metrolinx was legally required to investigate the incident and act on its findings. It agreed with the Divisional Court that the arbitration award was unreasonable and unfit for reinstatement. The matter remains with the Grievance Settlement Board for fresh arbitration. The court also ordered the union to pay Metrolinx $20,000 in costs.