Part I of the Off-Duty Conduct Series

Date: September 1, 2026

Series Overview

In this series, I will explore practical considerations, emerging case law, and investigative challenges relating to allegations of off-duty conduct.

Organizations are increasingly confronting allegations of employee conduct that occurs outside the workplace. For example, organizations are grappling with off-duty conduct:

That has a negative impact on the workplace culture or feelings of safety in the workplace, like comments exchanged in private that make their way into the workplace (i.e., of a discriminatory or harassing nature) or incidents arising from personal, off-duty relationships between employees (i.e., like violence or harassment); and

Where comments are made publicly by professionals, executives, or those with higher obligations of trust that negatively impact the organization’s reputation and/or their delivery of services.

In this Part I of the series, I review:

The test in the arbitral decision Millhaven Fibres Ltd., Millhaven Works, and Oil and Chemical and Atomic Workers International Union, Local 9-760, (1967), (the “Millhaven Fibres Test”), which is often used to determine if an investigation into off-duty conduct may be required.
The findings in Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415 (“Metrolinx”), which affirms that employers have a statutory obligation to investigate private communications containing discriminatory or harassing comments when they make their way into the workplace and negatively affect other workers. [1]

Lessons from the Millhaven Fibres Test and Metrolinx

The Millhaven Fibres Test provides a basis for investigation and potential dismissal of employees for off duty conduct where the conduct:

harms the employer's reputation;

renders the employee unable to perform their duties satisfactorily;

leads coworkers to refuse or be reluctant to work with the employee;

constitutes a serious Criminal Code violation; or

impairs the employer's ability to manage its workforce or carry out its operations.

Notably, the impact on the employer has to be “real and material”, and concerns about public reputation must be “substantial and warranted” by “a reasonable and fair-minded member of the public” such that continued employment would “so damage the reputation of the employer as to render that employment impossible or untenable.”[2] This concept will be considered further in later Insights.

Metrolinx involved a private “WhatsApp” texting group on the grievors’ personal cellphones, in which they made “negative, derogatory, and sexist comments about other employees”. The Court of Appeal cited the Millhaven Fibre Test and proceeded to provide more specific guidance as to when employers have a statutory duty (i.e., under the Occupational Health and Safety Act) to investigate off duty conduct that constitute harassing or discriminatory comments about another worker, and those comments made their way into the workplace.[3] More specifically, while it was acknowledged that the grievors made the comments with the expectation that they would remain private, it was determined that they ought to have known dissemination was a risk and the fact the comments were shared to others in the workplace was determinative.[4]

Takeaways

When determining whether an investigation into alleged off-duty conduct is required, organizations should consider whether there is evidence of a negative workplace impact under the Millhaven Fibres Test and Metrolinx, as well as whether the alleged conduct or comments, if substantiated, could meet the test for harassment or discrimination.

Put another way, employers can refer to the existing case law for guidance as to when their statutory obligations to investigate allegations of workplace harassment and discrimination have been triggered while also avoiding unnecessary intrusions into employees' private lives where there is no reasonable basis to conclude that the conduct has become a workplace issue.

Last, to assist discharging their obligations, employers and service providers may wish to review their policies to ensure they clearly address circumstances in which off-duty conduct may attract a workplace investigation.

If you have questions about the investigation of off-duty conduct, please contact Becky at becky@langillelittle.ca.

[1] At paras 36 and 37.

[2] Ottawa-Carlton District School Board and OSSTF, District 25 (Cobb), (2006), 2006 CanLII 60956 (ON LA), 154 L.A.C. (4th) 387 (Goodfellow).

[3] At para 42.

[4] At para 40.

​Part I of the Off-Duty Conduct Series

Part I of the Off-Duty Conduct Series