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The Legal Duty to Investigate: Lessons learned from Aurora Biomed Inc. and Metrolinx

A workplace investigator reviewing documents with HR professionals, ensuring compliance with harassment investigation policies.

In June, 2025 the Ontario Court of Appeal issued a decision in Metrolinx illustrating the Employer’s obligation to investigate off-duty conduct involving allegations of sexual harassment: see Metrolinx v. Amalgamated Transit Union Local 1587 2025 ONCA 2025 ONCA 415. The Court overturned the arbitrator’s award trying to cancel the employer’s termination of multiple employees for their social media activities occurring off-duty. The court in arriving at its decision to remit the case back to a different arbitrator made a point of dispelling some out-dated myths relied on by the arbitrator including the notion that the severity of misconduct can be gauged by the absence of the complainant’s insistence that the employer conduct a workplace investigation or that the privacy rights of the authors of the text messages in question were absolute.

What Happened in the Aurora Biomed Inc. Case?

The legal requirement for employers to take proactive steps to address workplace harassment and ensure their harassment policies are in line with statutory requirements in the province they operate is also reflected in the BC case of Aurora Biomed.

The complainant, referred to as “The Sales Associate,” worked for Aurora Biomed Inc. She alleged that:

  • During the hiring process, Dr. Dong Liang, Aurora’s founder, asked inappropriate questions about her marital status and plans to have children.
  • During employment, Dr. Liang made comments about her appearance, including calling her “beautiful girl” and telling her to smile more, which she found degrading.
  • When she raised concerns about this behaviour, her complaint was not taken seriously, and she was eventually terminated in retaliation.

The employer denied these allegations, claiming the termination was due to poor performance. However, the Tribunal found in favour of the complainant, determining that Aurora Biomed had violated the Human Rights Code.

Key Findings from the Biomed Decision

1. Broad Definition of Sexual Harassment

The Tribunal clarified that sexual harassment, a form of sex discrimination, does not have to involve overtly sexual conduct. Instead, it can include behaviour that reinforces gender power imbalances, such as calling an employee a “beautiful girl.” (See Aurora para. 116)

  • Calling her “beautiful” and commenting on her appearance imposes a burden on her to please people unrelated to her job.
  • Calling a grown woman a “girl” infantilizes and patronizes her, signalling that she is not an adult worthy of being taken seriously in her profession.

These comments serve to demean an employee based on gender and create a hostile or demeaning work environment.

2. The Employer’s Duty to Investigate

Employers have a legal obligation to respond to harassment complaints promptly and effectively. In this case:

  • The employer failed to conduct an impartial investigation. The only people the Sales Associate could complain to about Dr. Liang were his children, which was inappropriate. The Tribunal emphasized that those handling complaints should be neutral and impartial (Aurora para. 126).
  • The Tribunal noted that ignorance of the Human Rights Code is no defense against a discrimination complaint (Aurora para. 128).
  • A proper investigation must be thorough and compliant with human rights legislation.

In a related case, Harrison v. Nixon Safety Consulting (2008 BCHRT 462), the Tribunal criticized a superficial harassment investigation that lasted only an hour and relied on general assurances rather than proper documentation and detailed inquiries (para. 290).

A poor or non-existent investigation can itself be a form of discrimination. In The Employee v. The University (2020 BCHRT 12), the Tribunal ruled that failing to investigate a discrimination complaint can independently cause harm (para. 273).

Tribunals can also order organizations to implement anti-discrimination and harassment policies, as seen in Aurora (para. 200), emphasizing the necessity of robust investigative procedures.

3. Retaliation is Prohibited

Terminating or penalizing an employee for raising a harassment complaint violates human rights law (see Human Rights Code, s. 43). The Tribunal found that Aurora Biomed’s decision to fire the complainant shortly after she raised concerns was retaliatory (Aurora para. 162).

To prove a violation of s. 43, the complainant must establish:

  1. The respondents were aware that a complaint might be made.
  2. They terminated the complainant’s employment.
  3. There was a sufficient connection between the complaint and the termination (Aurora para. 150).

Why This Cases Matters

The decisions in Metrolinx and Aurora Biomed are a wake-up call for employers across Canada. It highlights the importance of:

  • Creating clear anti-harassment policies.
  • Ensuring all employees, especially managers, understand their responsibilities in preventing and addressing workplace discrimination.
  • Taking every complaint seriously, regardless of how subtle or indirect the behaviour may seem.
  • Conducting unbiased, thorough and fair investigations including cases involving alleged off-duty conduct regardless of whether the complainant insists on an investigation.

For employees, the case reinforces that they have the right to speak up against harassment without fear of retaliation. It also serves as a reminder that comments or actions that might seem minor can have serious legal consequences if they contribute to a discriminatory environment.

How Neil Hain Dispute Resolution Can Help

Navigating workplace investigations and ensuring compliance with human rights laws can be complex. Whether you’re an employer striving to build a safer workplace or an employee facing harassment, Neil Hain Dispute Resolution at neilhaindr.com is here to help.

Neil excels at:

  • Conducting impartial, thorough, fair, trauma informed and evidence based workplace investigations.
  • Advising employers on effective anti-harassment policies.
  • Supporting employees through the complaint process.

Conclusion

The Metrolinx and Aurora Biomed cases are significant milestones in Canadian human rights and workplace law. It reminds us all of the importance of fostering workplaces where respect and equality are not just ideals but realities. If this case resonates with your experiences, know that help is available to guide you through these challenges.