By: Anne-Marie Langan*
In reviewing and overturning a decision made by the Grievance Settlement Board[1] to reinstate five employees who had been terminated by Metrolinx for having engaged in behaviour that they deemed to be contrary to their harassment policies, the Divisional Court noted that:
A victim’s reluctance to report or complaint about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, the prospect of further humiliation, or just the hope that, if ignored, the demeaning comments or behaviours will stop. This is true whether or not the conduct rises to the level of assault. A victim’s reluctance to report or complaint cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.[1]
In terminating the five employees, Metrolinx interpreted its harassment policy which references "offensive behaviour arising from the use of electronic media, devices and systems.”[2] The five employees had posted offensive comments to a WhatsApp page about several female employees, including that they "went down on her knees to get the acting supervisor job”[3] and other similar comments suggesting that these women were getting special treatment by offering sexual favours to their male supervisors. While the women found these comments distressing, they did not want to make a formal complaint for fear of retaliation from their fellow employees.
The Arbitration Board recognized that the behaviour of the five employees was “shameful and reflected poorly on their character”[4]. Despite this, he ordered the reinstatement of the five employees because these conversations had “occurred outside the workplace on the Greivors’ own time, using their cellphones through an online medium they reasonably believed and intended to be private to the Greivors”[5]. Metrolinx appealed this decision to the Divisional Court.
In overturning the arbitror’s decision the Divisional Court remarked that:
The alleged sexual harassment in this case would fall into category (a) of the definition of “workplace sexual harassment”. It was a “course of vexatious comment” that the Grievors ought reasonably to have known would be unwelcome. When it became known to Ms. A, it created a demeaning and offensive work environment that no employee should be compelled to endure.”[6]
This decision is important in two respects. First, it recognizes the employer’s obligation to investigate harassment in the workplace when it comes to their attention, regardless of whether or not a “formal complaint” was made. Second, it recognizes that behaviour that takes place online and after hours can still constitute sexual harassment and can negatively impact workplace culture, thereby creating a toxic work environment for the employees.
*Anne-Marie Langan BA, BSW, LL.B., LL.M. is the project lead for the sexual violence projects at Peterborough Community Legal Center, including the SHAPE project, which provides legal advice and education for those experiencing sexual harassment in the workplace and the Your Way Forward project which provides support for those who have experienced intimate partner sexual violence. These projects are sponsored by the government of Canada's Justice Department and Legal Aid Ontario. She can be reached directly at anne-marie.langan@ptbo-nogo.clcj.ca .
Disclaimer: This post contains general legal information as of January 29, 2025, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change, and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer.
[1]Amalgamated Transit Union - Local 1587 (Juteram et al.) v The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB), <https://canlii.ca/t/jzk7s>, retrieved on 2025-01-30
[2] Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII), <https://canlii.ca/t/k3tj8>, retrieved on 2025-01-30
[3] Ibid. para. 9.
[4] Metrolinx DC, Supra, note 2 at para. 18.
[5] Metrolinx AB, Supra note 1 at para. 13.
[6] Ibid.
[7] Metrolinx DC, Supra, note 2 at para.51.
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