Ontario: Employer Not Obligated to Protect Employees Away from Workplace

By Amanda Boyce September 28, 2017
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Ontario: Employer Not Obligated to Protect Employees Away from Workplace

​A citizen's harassing behavior toward members of a town council did not fall within the reach of the Occupational Health and Safety Act because it did not occur at the workplace, the Ontario Court of Appeal ruled.

The mayor of Rainy River in Ontario, Canada, received a small honorarium for performing her duties and worked full time at the town's health unit. A resident of the town began sending sarcastic, rude and harassing e-mails 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 behavior escalated in frequency and severity, he also visited 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 prohibiting the resident from e-mailing the mayor and town council members, 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 people 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 applied only 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 poisoned 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.

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The court also refused to grant the injunctions. It found that to apply the town's 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 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 according 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 blocking his e-mails and refusing to respond to letters.

Rainy River (Town) v. Olsen, Ont. Ct. App. 2017 ONCA 605 (CanLII).

Professional Pointer: Although the court declined to grant an injunction, the town could have sent a trespass notice or the mayor could have applied for a peace bond with her employer's support.

Amanda Boyce is an attorney with Stringer LLP, the Worklaw® Network member firm in Toronto.

 

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