Union disappointed court didn't deal with substantive issues of termination
A recent decision by the Ontario Court of Appeal has put a complicated case involving workplace sexual harassment, off-duty behaviour, and the use of private social media groups back into the hands of an arbitrator.
The decision in Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415, released on June 6, directed the Grievance Settlement Board to appoint a new arbitrator to determine the matter and required the union to pay $20,000 in costs. It was written by Justice Peter D. Lauwers with Justices Ian V.B. Nordheimer and Darla A. Wilson in agreement.
Metrolinx fired five union employees for sexual harassment after the transit authority found they had been sharing “negative, derogatory, and sexist comments about other employees” in a private WhatsApp chat while they were off duty. In particular, the messages accused another employee, known as Ms. A, of using sexual favours to advance her career. Ms. A became aware of the texts but took no action. Then, Metrolinx’s human resources department found out about the texts, started to investigate and got one of the chat members, Mr. Juteram, to turn over copies of the texts. The union filed a grievance on behalf of the terminated employees, and an arbitrator appointed by the Grievance Settlement Board ordered their reinstatement. Metrolinx sought and received a judicial review. The Divisional Court concluded that the award was unreasonable, quashed the arbitration award and sent the matter back to the Grievance Settlement Board. The union was given leave to appeal the decision, but the appeal was dismissed.
In explaining his decision, Justice Lauwers concluded that “Metrolinx does have authority over the Grievors’ conduct while they are off duty, subject to the legal norms found in the cases.”
He followed that statement by saying the arbitrator “made errors in principle and palpable and overriding errors in his assessment of whether the evidence established that ‘the impact of the harassment and/or discrimination is being manifested within the workplace’, as required under the Policy, and whether the investigator had the authority to request disclosure of the Whatsapp messages. He made similar errors in concluding that Metrolinx’s failure to follow some of the procedures mandated by the Policy in handling the allegations ‘undercut its ability to rely on the Policy.’”
Justice Lauwers endorsed the Divisional Court's approach, which, he said, treated the case as “an organic whole” instead of “a line-by-line treasure hunt for error.”
Karen Ensslen, a Ursel Phillips Fellows Hopkinson lawyer, represented the union. She describes the matter before the court as “administrative law issues.”
She says, “This decision probably has quite limited precedential value. There was an opportunity for the Court of Appeal to engage on issues of principle. And I think rather than doing that, the decision mostly is focused on its unique facts.”
One of the issues noted by the original arbitrator was Metrolinx's method of getting Mr. Juteram to share the text messages, implying that he would be disciplined if he didn’t cooperate.
“It appears that the Court of Appeal views that as him consenting to send the messages to the employer,” says Ensslen. “I think this is a very fact-specific decision from the Court of Appeal. They’re not declaring the law on anything particularly but they discuss the circumstances of providing the messages. And as I read it, they’re saying the employer was entitled to ask, and Mr. Juteram chose to give the messages.”
Given that Metrolinx terminated its employees in this case, the next arbitrator will have to address that decision. The court seems to have provided some guidance on this issue in its decision.
“I would say this court has confirmed not every case of sexual harassment or assault demands a discharge. There are cases appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum, and the griever has demonstrated remorse for his behaviour,” says Ensslen.
When reviewing the decision, Ensslen says that “obviously, the union is disappointed that the Court of Appeal didn’t engage with the issues presented to it substantively. The union is disappointed with the outcome, but the next step for the union will be to return to arbitration. This matter was quashed, but the Divisional Court, in its reasons, commented that it may well have been reasonable to reinstate these five bus drivers to their employment, and that was an issue to go back to a labour arbitrator for a better decision.”
