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Top 10 Webinar Follow-Up: Key Case Law Updates on Metrolinx & AMAPCEO

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Recently, my partners, Janice Rubin and Christine Thomlinson, and I presented Rubin Thomlinson’s “Top 10 Workplace Investigation Cases of 2024” webinar. We had a packed agenda and, as a result, we were unable to get to two cases that revisited two arbitral decisions that had been “top cases” in previous webinars. As promised during the webinar, I will be summarizing Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (“Metrolinx”),1 and Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (CanLII) (“AMAPCEO”),2 in this blog.

Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900

In the Metrolinx case, the Ontario Superior Court of Justice granted a judicial review of a 2023 arbitral decision that reinstated five bus drivers after their dismissal for sexual harassment. The bus drivers had exchanged derogatory and sexist messages about female employees in the workplace, in a WhatsApp group chat on their personal devices. A female employee became aware of the comments and reported the issue, but she did not wish to make a formal complaint. The employer investigated without her participation, the drivers were terminated from employment, the union grieved, and the grievors were reinstated. The Arbitrator stated that that there was no harassment since the female employee did not make a complaint or participate in the investigation, that it was therefore a conflict of interest for the employer to act as complainant and investigator, and that the employer did not have license to intrude on the drivers’ private conversations outside of the workplace.

On the application for judicial review of the arbitral decision, the Ontario Superior Court stated that:

    • Employers are obligated to investigate sexual harassment, even without a complaint or participation of a complainant (pursuant to the Ontario Occupational Health and Safety Act, which imposes a duty on the employer to investigate complaints and incidents); therefore, there was also no conflict of interest that the employer investigated.
    • The duty to investigate is not owed only to the complainant but to all employees in the workplace.
    • The Arbitrator’s conclusion that the employee’s reluctance to participate meant that there was no sexual harassment relied on myths and stereotypes about women who are targets of sexual harassment and/or assault; a victim may be reluctant to report or complain about sexual harassment due to many factors, including embarrassment or fear of reprisal.
    • Despite the comments occurring in a private chat, the comments became known and negatively impacted the workplace, and therefore, became a workplace issue.

Metrolinx serves as a great reminder to employers about the duty to investigate even without a formal complaint, a caution against relying on myths and stereotypes when investigating sexual harassment or assault, as well as the expansive nature of the workplace which may include personal conversations outside of the workplace that have work-related consequences for some employees.

AMAPCEO v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555

In AMAPCEO, the complainant, a Black woman, alleged that her white colleague intentionally shoved her when they were passing each other in the workplace. A white, male investigator was assigned to investigate, and he did not substantiate the allegation. In his findings, the investigator stated that the complainant’s evidence “seems contrived” and “seems calculated to lead to the requested relief including compensation.” Further, in his report, the investigator did not include statements by the witnesses and incorrectly stated that one witness called the complainant’s tone threatening (when it had been reported as “confrontational”).

AMAPCEO filed a grievance challenging the investigator’s process and conclusion, stating that the investigation itself was discriminatory and “bore the hallmarks of anti-Black stereotypes, prejudice and implicit bias.” They called an expert witness to testify about unconscious bias and to explain common anti-Black stereotypes. Ultimately, the Arbitrator concluded that the investigation was not fair or unbiased, but was also not discriminatory because while racism was one possible reason for the unfair investigation, it was not the “dominant possibility.”

Upon judicial review of the arbitral decision, the Court found that the Arbitrator had incorrectly applied the test to assess prima facie discrimination under the Ontario Human Rights Code and otherwise erred in several ways, by:

    • requiring racism to be the “dominant possibility” for the unfair investigation rather than correctly assessing whether race was “a factor” in the decision-making process,
    • requiring the complainant/grievor to disprove the existence of possible, non-racist explanations, when the correct process would be to first establish a prima facie case of discrimination and then shift the evidential burden to the respondent,
    • discounting expert evidence about unconscious bias, stating that there had to be actual evidence to suggest bias when that is not required; evidence about unconscious bias may be used to assist with drawing an inference of prima facie discrimination,
    • providing speculative explanations for the investigator’s conduct.

The Court granted the application for judicial review and remitted this matter to the Arbitrator.

AMAPCEO reminds us of the importance of using the correct test when determining whether there has been a breach of policy or legislation, accurately and thoroughly reporting on the relevant evidence of parties and witnesses, and avoiding off-mandate speculation about complainants and/or providing unsupported justifications for the actions of those alleged to have engaged in discriminatory behaviour.


1 The decision which was subject to judicial review was included in the July 2023 Case Law Round-up and the Top 10 Cases of 2023 webinar: Amalgamated Transit Union – Local 1587 (Juteram et al) .v The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB).

2 The decision which was subject to judicial review was included in the Top 10 Cases of 2021 webinar: Association of Management, Administrative and Professional Crown Employees of Ontario
v. Ontario (Attorney General),
2021 CanLII 58440 (ON GSB).


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