Ontario Employers Must Examine Harassment, Even if Outside Work

Employers have a legal duty to eliminate harassment and discipline employees for their conduct, whether it occurs during or outside of work hours.

If a company finds out that a few of its employees made disparaging comments about a co-worker in a private group chat outside of working hours, what obligations does it have? What if the maligned employee refuses to lodge a complaint and wants the incident quickly buried — can the company look the other way?

And what privacy rights do employees have to these ostensibly private communications? Can an employer require them to hand over evidence?

These issues arose in a recent decision of the Court of Appeal for Ontario involving the transportation agency Metrolinx. Five employees had a private WhatsApp chat group in which they sent texts while on their personal cellphones. In the chat, they claimed that a female co-worker had advanced in the company due to her sexual conduct. The chat was inaccessible to anyone outside of the group.

Although the exchange was intended to be confidential, the employee learned of it — as did Metrolinx, which asked the employee if she wished to complain. She did not. She wanted the matter forgotten as quickly as possible.

Metrolinx investigated anyway and demanded copies of the texts from one of the five chat group members, with the threat of discipline if he did not hand them over. It then fired all five workers for cause. Their union filed a grievance. 

The court noted that employees can be disciplined for off-duty conduct if it seriously prejudices or injures a company’s reputation or legitimate business interests. The level of discipline should be proportionate to the harm.

To impose discipline, an employer must show that a piece of communication was publicly disseminated or available to others and had a real — not just hypothetical or presumed — negative impact on the workplace or on the target of the inappropriate language.

Notwithstanding an employee’s refusal to file a complaint, employers have a legal duty under the Ontario Occupational Health and Safety Act to investigate any harassment, regardless of whether there is a complaint or whether the harassed employee wants the matter investigated. 

The court concluded that “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.”

How-To Guide: How to Conduct a Workplace Investigation

The union argued that the texts should be inadmissible because their production was essentially coerced. They were only turned over because discipline was threatened. The court concluded that the texts were obviously relevant to the investigation and the employer therefore had a right to demand them — and, being relevant, the employer had every right to rely upon them.

In other words, the legal duty to investigate harassment and demand the production of the relevant documents overrides any ostensible privacy right.

There is a common misconception that information obtained through improper means cannot be utilized in court. That is true in some contexts in criminal cases, but it is seldom true in employment or labor disputes. Essentially, all relevant information is admissible if it helps get to the truth.

In pursuing its investigation, Metrolinx did not follow all of its own policies. For example, one policy requires that there be a complaint and a willing complainant before an investigation can occur. This made no difference legally. An employer’s duty to investigate harassment exists regardless of company policy.

Sample Policy: Anti-Harassment Policy and Complaint Procedure 

This case, from Ontario’s highest court, reminds employers of their legal statutory duty to eliminate harassment and ultimately discipline employees for their conduct, whether it occurs during or outside of work hours.

Howard Levitt is an attorney with Levitt LLP in Toronto. © 2025 Levitt LLP. All rights reserved. Reposted with permission of Lexology.