Introduction
2025 has been a significant year for labour law in Ontario, with several key decisions clarifying the scope of employer obligations, employee rights, and the legal treatment of workplace misconduct. From the distinction between harassment and violence under the Occupational Health and Safety Act (OHSA) to the limits of arbitral discretion, courts and labour boards have provided important guidance for employers, unions, and employees alike. The cases summarized below highlight the evolving landscape around workplace harassment, sexual misconduct, policy compliance, and termination, underscoring the importance of robust policies, thorough investigations, and adherence to statutory duties.
OLRB Clarifies Difference Between Workplace Harassment and Workplace Violence
1. Ontario Nurses’ Association v A Director under the Occupational Health and Safety Act, 2025 CanLII 14562 (ON LRB) (Kugler, January 17, 2025)
Overview
In a significant decision from the Ontario Labour Relations Board (the “Board”), the Board considered the difference between “workplace harassment” and “workplace violence” under the OHSA in the context of serious sexual misconduct.
The case involved a physician who, in 2018, sexually assaulted a hospital employee. The physician, a white male surgeon and former Chief of Surgery, followed a Black female housekeeper into an isolated area of the hospital, tightly embraced her, and grabbed her breast without consent. He was criminally charged and convicted of sexual assault, and the conviction was upheld on appeal.
The Ontario Nurses’ Association (ONA) appealed a Ministry of Labour decision declining to issue orders against the hospital in relation to the incident, arguing that the incident should be treated as workplace violence, not just harassment.
The Board ultimately found that the conduct constituted both workplace harassment and workplace violence under the OHSA and emphasized that the two are not mutually exclusive.
Key Findings
- The physician’s conduct met the OHSA definition of workplace violence, which includes physical force that could cause injury. Actual injury is not required; the focus is on objective risk.
- Factors influencing the Board’s conclusion included the force of the contact, the power imbalance between the parties, the secluded location of the incident, and the potential for escalation.
- The Board emphasized that workplace violence and harassment are not mutually exclusive; the same incident can constitute both.
- The Board declined to declare that all sexual assaults under the Criminal Code constitute workplace violence under the OHSA, finding that it lacked jurisdiction to issue broad, systemic rulings on an appeal under section 61 of the OHSA, which limits review to a specific decision.
When “Private” Messages Become a Workplace Issue: Court of Appeal Confirms Arbitrator’s Decision Was Unreasonable
2. Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415 (ONCA) (June 06, 2025)
In a significant appellate decision regarding the employer’s duty to investigate, the Ontario Court of Appeal upheld the Divisional Court’s ruling overturning an arbitrator’s reinstatement of five employees dismissed for exchanging sexist and derogatory messages in a private WhatsApp group about a colleague.
The Court confirmed that:
- Employers have both the authority and statutory duty under the OHSA to investigate harassment incidents once they affect the workplace, even if the conduct occurs off-duty, on private devices, and without a formal complaint; and
- Where an arbitration award reflects legal errors, relies on outdated or stereotypical assumptions about harassment, or fails to meaningfully engage with statutory requirements, the award may fall outside the range of reasonable outcomes and be set aside.
For more information about this case, please see our summary in “Top 5 Employment Law Cases 2025” here.
Ontario Divisional Court Confirms Discipline May Follow Hospital Worker Vaccine Policy Breaches
3. Humber River Health v. Teamsters Local Union No. 419, 2025 ONSC 2270 (Ont. Div. Ct.) (May 06, 2025)
Overview
In a notable healthcare sector decision, the Ontario Divisional Court clarified that blanket conclusions barring discipline for vaccine non-compliance are unreasonable.
The Arbitration Award
Arbitrator Parmar considered whether Humber River Health had just cause to terminate two employees who refused to comply with its mandatory COVID-19 vaccination policy. The employees had been placed on unpaid leave for two weeks prior to termination. While the policy itself was deemed reasonable, the arbitrator concluded that any discipline for non-compliance was impermissible, relying on general principles of medical consent developed outside the pandemic context. The remedy ordered was reinstatement.
This decision conflicted with other awards in the sector, many of which had upheld discipline for non-compliance, creating arbitral divergence. The hospital sought judicial review.
The Divisional Court’s Decision
The Court found that the arbitrator’s categorical conclusion that employees could never be disciplined for refusing vaccination was unnecessary and unreasonable. The arbitrator had failed to balance Humber River Health’s duty to protect patients, staff, and visitors against the health and safety risks of COVID-19.
The Court also noted an arbitral consensus at the time supporting discipline for non-compliance and found that the arbitrator departed from this consensus without sufficient justification.
Despite these findings, the Court agreed with the arbitrator that reinstatement was the appropriate remedy in this case. Because the employees had only been on unpaid leave for two weeks, dismissal was not warranted, and no rehearing was ordered.
Conclusion
While the reinstatements stood, the Court clarified that non-compliance with a reasonable mandatory vaccination policy can justify discipline.
Interest Arbitration Board Decides on Healthcare Sector Collective Agreement Provisions
4. Participating Hospitals v Ontario Nurses’ Association, 2025 CanLII 89205 (ON LA) (Price, Abbink and Christen; September 03, 2025)
Overview
In a landmark interest arbitration award for the healthcare sector, the Board of Arbitration settled central terms for the collective agreement renewal between the Ontario Nurses’ Association (ONA) and 127 hospitals (the “Participating Hospitals”), represented by the Ontario Hospital Association (OHA). This arbitration marked the 21st round of provincial bargaining between ONA and the hospitals.
The previous agreement expired on March 31, 2025. Despite extensive bargaining and mediation, the parties were unable to resolve key issues, leading to arbitration. The Board was tasked with replicating the likely outcome of free collective bargaining, considering fiscal constraints, economic conditions, comparability, and demonstrated need.
Highlights from the Arbitration Award
- Wage Increases: General wage increases of 3.0% for 2025 and 2.25% for 2026 were awarded, aligning with other hospital bargaining units; ONA’s request for 6% increases was rejected. Economic realities and fiscal constraints were emphasized.
- Transfer of Accountability (TOA): Nurses will now be paid for up to 15 minutes of handover time beyond their scheduled shift, with overtime applicable for any additional time. This change became effective on November 2, 2025.
- Nurse-to-Patient Ratios & Staffing: Proposals for fixed RN-to-patient ratios and restrictions on RN assignments were rejected. Management’s discretion to determine staffing in response to patient needs was reaffirmed.
Age-Based LTD Cutoff Provisions Survive Charter Challenge
5. University Health Network (Toronto Western Hospital And Toronto General Hospital) v Ontario Nurses’ Association, 2025 CanLII 47230 (ON LA) (Gedalof, May 21, 2025)
Arbitrator Gedalof upheld the termination of long-term disability (LTD) benefits at age 65, finding the statutory provisions under the Ontario Human Rights Code (the “Code”) and the Employment Standards Act, 2000 that allow this age-based cutoff to be a reasonable limit under the Canadian Charter of Rights and Freedoms (the “Charter”).
The case involved a grievance by a union challenging the end of LTD benefits at age 65, arguing it violated the Code and Charter equality rights. While the parties agreed the exclusion discriminated on the basis of age, the key issue was whether that discrimination could be justified under s.1 of the Charter.
The arbitrator found that, although less exclusionary alternatives might be feasible, the current legislative framework serves a pressing and substantial objective: protecting the viability of employee benefit plans. The evidence showed that providing unlimited LTD coverage beyond age 65 would be prohibitively expensive, and post-65 LTD coverage remains rare in the insurance market.
Ultimately, the arbitrator concluded that the age-based carve-out for LTD benefits is constitutionally valid and justifiable, and the grievance was dismissed.
Employer Termination Upheld for Sexual Harassment in Uber Ride
6. Sheet Metal Workers’ International Association, Local 30 v Semple Gooder Roofing Corporation, 2025 CanLII 132377 (ON LA) (Merchant; December 18, 2025)
Arbitrator Merchant upheld an employee’s termination for just cause based on sexual misconduct. The employee had been on modified duties under his employer’s Return to Work Program, which included daily Uber transportation to work arranged and paid for by the employer.
During one Uber ride to work, the employee allegedly engaged in sexual harassment toward the female driver, including making personal and inappropriate comments and masturbating in the back seat.
During the arbitration, the Grievor claimed that he was merely “fiddling with clementines he had in his pocket” and “picking lint fuzzies from his jogging pants,” but the arbitrator found his explanations not credible.
The arbitrator, after carefully assessing witness credibility and evidence, including the driver’s detailed testimony and Uber records, found that the employee had engaged in sexual harassment. The grievance was dismissed, and the termination for cause was upheld.
Sexual Harassment in Academia: Insights from Canadian University Cases
Sexual harassment in academic settings remains a significant concern for universities, faculty, and students alike.
This year, three arbitration awards and one labour board decision confirmed that allegations of sexual harassment are treated seriously, with termination being the supported outcome where the allegations are proven.
For our full reporting on the cases summarized below, please see here.
7. Brock University v. Brock University Faculty Association (unreported – available here) (ON LA) (Reaume; July 9, 2025)
Arbitrator Reaume upheld Brock University’s decision to terminate a tenured professor for sexual harassment and breaches of the University’s Respectful Work and Learning Environment Policy. The grievance followed an independent investigation into complaints by a graduate student supervised by the professor, which substantiated a pattern of sexually- and gender-oriented conduct that created a poisoned educational and work environment.
The arbitrator found that the professor:
- Made repeated comments on the student’s appearance, clothing, and romantic life, including sexual undertones and innuendo.
- Engaged in unwanted physical contact and invitations, despite the student expressing discomfort.
- Failed to recognize the supervisory power imbalance and continued the behaviour after direct complaints.
- Breached confidentiality and had a prior disciplinary history for personal harassment.
After a 13-day hearing de novo, the arbitrator found the student credible and the professor’s explanations inconsistent, minimizing the nature and frequency of the misconduct. Given the seriousness, persistence, and prior warnings, the arbitrator concluded that dismissal was reasonable and not excessive. The grievance was dismissed.
8. Toronto Metropolitan Faculty Association v Toronto Metropolitan University, 2025 CanLII 95115 (ON LA) (Mathew; September 13, 2025)
Arbitrator Mathew upheld Toronto Metropolitan University’s decision to terminate a pre-tenured faculty member for gross misconduct, including sexual harassment and workplace incivility toward a senior colleague. The decision followed an independent investigation that substantiated over 30 incidents spanning 2019–2022, finding pervasive sexualized comments, invasive personal questions, and repeated uncivil conduct that created a poisoned work environment.
Key findings included:
- Repeated sexualized and gender-based comments, including remarks about appearance, sexual habits, and personal relationships.
- Disrespectful and undermining conduct toward the colleague in her managerial role.
- Misrepresentation of the circumstances post-termination and disclosure of confidential information.
- Lack of credibility, denial of serious allegations, and failure to accept accountability.
The arbitrator concluded that the misconduct violated the University’s Sexual Violence, Discrimination and Harassment Prevention, and Civility Policies. Given the severity, persistence, and aggravating factors, including post-termination behaviour, termination was deemed appropriate, and the grievance was dismissed.
The decision is also noteworthy because the parties agreed on a trauma-informed approach to litigation and relied on the findings in the independent investigation instead of requiring the complainant and other witnesses to testify before the arbitrator.
9. Robert Gifford, 2025 BCLRB 109 (BCLRB) (May 29, 2025) (original decision)
The BC Labour Relations Board (BCLRB) dismissed a duty of fair representation complaint against the University Faculty Association arising from the termination of a tenured University of Victoria professor for sexual harassment. The termination followed an investigation into inappropriate sexualized conduct toward a female graduate student, including invitations to share a hotel room and evidence of a pattern of similar behaviour toward others.
The Union decided not to pursue arbitration after obtaining legal advice and consulting its internal committees, concluding that the grievance had limited prospects of success. The Board found that this decision was reasoned, non-arbitrary, and made in good faith, and dismissed the application.
10. Robert Gifford, 2025 BCLRB 156 (BCLRB) (August 7, 2025) (reconsideration decision)
The University of Victoria professor who had challenged the Union’s decision not to pursue arbitration, detailed above, sought reconsideration of the original BCLRB ruling. The Board confirmed that reconsideration is not an opportunity to reargue the case on the merits. Its role is limited to assessing whether the Union acted arbitrarily, discriminatorily, or in bad faith.
The Board found that the Union had properly considered all relevant factors, including the professor’s emails and the interests of the bargaining unit, and had provided him with opportunities to present his case. The application for reconsideration was dismissed.
Key Takeaways
- Workplace Harassment vs. Violence: Incidents can constitute both harassment and violence under the OHSA. Physical contact, power imbalances, and workplace context are critical factors, and adjudicators may treat the same incident under both definitions.
- Employer Duty to Investigate: Off-duty or “private” misconduct may constitute a workplace issue when it affects the work environment. Employers have a duty to investigate such conduct, even where there is no formal complaint from the affected employee.
- Discipline Following Policy Breaches: Violating reasonable workplace policies, such as mandatory COVID-19 vaccination policies, can justify discipline. Arbitrators who depart from sectoral consensus without proper reasoning risk having awards overturned.
- Termination for Sexual Misconduct: Independent and thorough investigations into allegations of sexual misconduct are critical. Terminations may be upheld when the misconduct is substantiated, and unions’ decisions not to pursue arbitration may be upheld if made in good faith.
- Limits on Employee Benefits: Age-based limits on benefits, such as LTD coverage, may be justified as reasonable under the Charter when aligned with policy objectives and financial sustainability.
This publication provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Legal LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Legal LLP.