When Private Chats Become Workplace Harassment

Times are changing and courts are reminding us that relying on outdated misconceptions and assumptions about victims of sexual violence can lead to faulty legal reasoning.

In an era where the boundaries between work and personal life are increasingly porous — shaped by remote work and the widespread use of platforms like TikTok, Teams, Slack, and WhatsApp—new spheres of interaction are constantly emerging, along with the risks that come with them. An employer’s duty to prevent and address harassment does not stop at the office door. Organizations must pay close attention to these evolving dynamics, as inappropriate conduct outside of traditional work settings can have a real and lasting impact on the workplace, potentially triggering their legal obligations.

The Metrolinx Case

In April 2021, Metrolinx terminated five employees after it became aware of a private WhatsApp group chat where said employees made negative, derogatory and sexist comments about female employees. These comments also included a reference to a female co-worker, Ms. A, performing sexual favours for career advancement.

The Arbitrator who heard the case ruled to reinstate the employees. In a recent judgment, the Court of Appeal for Ontario^[1] (the “Court”) upheld the Divisional Court’s decision to quash the Arbitrator’s award and offered several important reminders for employers:

• An employer’s responsibility to prevent and address harassment can extend beyond the physical workspace.
• Reliance on myths and stereotypes about victims of sexual violence is a legal error.
• A formal complaint is not required to trigger the duty to investigate.
• Private off-duty communications may legitimately fall within the scope of a workplace investigation if they impact the work environment.

An Employer’s Duty Beyond the Office Door

In its reasons, the Court reaffirmed that an employer’s obligation to prevent and address harassment is not limited to the physical workplace, and that off-duty conduct — such as private group chats or social media posts — can trigger legal obligations when it affects the work environment.

In this case, Ms. A received screenshots of the offensive messages and became upset at work. While the Arbitrator emphasized the private nature of the WhatsApp group and that the messages were sent on personal devices outside working hours, the Court found that, regardless of origin or intent, the conduct made its way into the workplace and became a workplace issue. The Court noted that:

This is hardly surprising given the nature of social media and the fact that the number of employees with access to the chat was not known. The employees who participated in the chat were free to, and did, forward the message to other employees.^[2]

Myths and Stereotypes About Victims of Sexual Violence

The Court’s reasons delve into how the Arbitrator’s award fell short — both legally and conceptually — in addressing the realities of workplace harassment and the evolving context in which it arises.

Among other things, the Arbitrator drew an adverse inference from Ms. A’s hesitation to lodge a complaint and concluded to the absence of . According to his reasons, Ms. A’s decision not to file a complaint after seeing the text message indicated that she did not believe she was “the victim of sexual harassment and/or … experiencing a hostile or poisoned work environment.”^[3]

The Divisional Court found that the Arbitrator’s conclusion was unreasonable as it was based on outdated myths and stereotypes about victim behaviour. In fact, this assumption reflects a critical misunderstanding of workplace harassment dynamics. As the Divisional Court pointed out, victims may have valid reasons for not filing official complaints—reasons that do not negate the occurrence of harassment or the employer’s duty to investigate and ensure a safe work environment.

[A] victim’s reluctance to report or complain 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.^[4]

In other words, it should not be “the end of the matter” when an employee reports an incident of harassment without making a formal complaint.^[5]

Statutory Duty to Investigate

The duty to investigate does not depend on a formal complaint being made. As the Metrolinx case illustrates, private group chats and online messaging — even when created outside work hours — can have real consequences in the workplace, and victims may be reluctant to pursue a complaint. Under the Occupational Health and Safety Act^[6], employers have a statutory duty to investigate not only formal complaints, but also incidents of workplace harassment. This duty applies to the broader work environment and protects all employees — not just the direct target — from demeaning and offensive behaviour.^[6]

Workplace Investigations and the Right to Privacy

The Court’s decision further underscores that privacy expectations for off-duty social media activities diminish when those communications negatively affect the workplace.

While the Arbitrator found that the employer’s investigator had intruded upon the private cellphone conversations of employees without their consent, the Court ruled that these communications fell within the scope of the investigation for workplace misconduct.

Employers are entitled to request relevant information during a workplace investigation. In the present case, when one of the employees referenced the WhatsApp group chat during his interview, the investigator was justified in reviewing those messages.

Practical Takeaways for HR and Legal Professionals

• Implement trauma-informed and incident management training

This decision reinforces the importance of a trauma-informed approach to harassment cases, including avoiding assumptions about how victims “should” behave. Training for human resources professionals, internal investigators, and managers can help ensure disclosures are handled sensitively and that outdated myths or stereotypes are not influencing decisions.

• Review workplace policies

It also highlights the value of reviewing workplace policies to confirm they clearly indicate that investigations may proceed without a formal complaint, based on observed behaviours or informal reports. It should also be clear that off-duty conduct as well as digital conduct impacting the workplace can lead to disciplinary measures.

[1] Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415.

[2] Ibid., para. 40.

[3] Amalgamated Transit Union – Local 1587 (Juteram et al) v The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB), para. 126.

[4] Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII), para. 59.

[5] Ibid., para. 47.

[6] Occupational Health and Safety Act, RSO 1990, c O.1.

[7] 2025 ONCA 415, para. 36.