In a recent decision, the Ontario Court of Appeal upheld a lower court’s ruling that a citizen’s harassing behaviour toward members of city council did not fall within the ambit of the Occupational Health and Safety Act (the “Act”) because it did not occur at the workplace.
In Rainy River (Town) v Olsen, the Ontario Court of Appeal upheld a lower court’s ruling that a citizen’s harassing behaviour toward members of city council did not fall within the ambit of the Occupational Health and Safety Act (the “Act”) because it did not occur at the workplace.
The mayor of Rainy River received a small honorarium for performing her duties, and also worked full time at the town’s Health Unit. A resident of the town began sending sarcastic, rude, and harassing emails to the mayor’s office when his various ideas for town improvement were not implemented. He attempted to have defamatory information published about the mayor in the town newspaper, and wrote to the Ombudsman’s Office and the Ministry of Municipal Affairs accusing her of incompetence. As his behaviour escalated in frequency and severity, he also attended at the Health Unit, her full-time workplace, and yelled abusive comments at her.
The town applied to the Court for a declaration that the resident violated the town’s workplace harassment and violence policy under the Act, and for various injunctions restraining the resident from emailing the mayor and town council, harassing them, or publishing information online about them.
The Court expressed doubt that the scope of the harassment policy, as prescribed by the Act, was intended to apply to persons who are not part of the workplace. Further, the Court found that the definition of “workplace” in the Act relates to a setting that is under the control and direction of the employer.
The Court also noted that the town’s harassment policy itself limited the scope even further: the policy only applied to harassing phone calls and visits to a person’s home if both the victim and the harasser were employees of the town, and the incident poisons the workplace environment. The Court found that the policy did not apply, because the resident was not a co-worker. As such, the Court refused to grant a declaratory order that the resident had violated the town’s policy.
The Court refused to grant the injunctions. It found that to apply the town’s anti-harassment policy to the Health Unit would create confusion in the administration of the Health Unit, and the potential for overlapping policies. The Health Unit is required by the Act to have its own anti-harassment and violence policies. The Court found that the definition of “workplace” under the Act is broad, as the Act is remedial legislation meant to protect the public. However, the Court found that it would be overly-broad for the town’s policy to apply to the mayor when she is working pursuant to the instructions and control of another employer.
The Court further found that although the resident was intrusive and offensive, injunctions are extreme orders, and the town had not yet tried other lesser methods of deterring the resident, such as sending a trespass notice, blocking his emails, refusing to respond to letters, and applying for a peace bond.
Although the circumstances of this case were extremely unique, it raises some issues of which employers should be aware. Although the Act requires employers to develop and implement policies and procedures to address and prevent violence and harassment in the workplace, the Act does not tell employers exactly how they should protect employees, nor does it tell employers what they should do when there is a breach of those policies.
This may be particularly relevant to industries that are customer service-focused, where workers may have a high level of interaction with members of the public. The Court’s analysis in this case focused primarily on the in-person interaction between the resident and the mayor at the Health Unit. Unfortunately, the Court did not directly address the emails and phone calls the resident sent to the mayor while she was performing her duties as mayor. The Act contemplates that anti-harassment and violence policies should protect workers from the harassing conduct of non-workers in the workplace. This may include digitally, through harassing emails to workers, as well as harassment by phone or letter.
As the Court briefly alluded to, an appropriate response could include simple measures such as blocking harassing emails, or refusing to respond to harassing correspondence or phone calls.
The resident went to the Health Unit and harassed the mayor about her municipal work. Although the harassment did not happen in her municipal workplace, it is logical that the fact that the resident harassed her about municipal issues indicated to her municipal employer that the resident was more likely to continue and to escalate his harassment at the municipal workplace as well. As such, it seems that a more drastic response may have been appropriate. Although the Court declined to grant an injunction, the town could have sent a trespass notice, or the mayor herself could have applied for a peace bond with her employer’s support.