Aug 22, 2017

Protecting Employees from Third-Party Harassment

York Condominium Corp No 163 v Robinson, 2017 ONSC 2419 (CanLII)

All Ontario employers have a duty to protect employees from workplace harassment. These protections are set out in the Occupational Health and Safety Act (“OHSA”). For instance, OHSA requires that employers protect employees from workplace harassment by implementing policies and carrying out investigations (Part III.0.1) and by “tak[ing] every precaution reasonable in the circumstances for the protection of a worker” (s. 25(2)(h)). But what happens when an employee is being harassed by a third party at work? For example, by a customer or a subcontractor? What obligations does an employer have?

Two recent decision from Ontario courts look at this very situation. The first case involves a Toronto condominium corporation (York Condominium Corp No 163 v. Robinson). Here, the Corporation’s staff found themselves subject to ongoing abuse from a resident/owner of a condo unit. As described the by Court:

[T]he [Resident/Owner] is deeply concerned about the…condominium corporation… She is so concerned that she emails the management office virtually every day asking for various records kept by the building management, critiquing the effectiveness of management, and complaining about building maintenance. Indeed, so concerned is she that in order to ensure she gets staff’s attention, she calls them degrading names – “obscenely obese”, “massive hulk”, “tubbo”, are some of the ways she addresses the people that work in her building.
I can only imagine how oppressive it is for the employees of the Applicant. They have tried to be patient, and have developed a protocol with the Respondent that she limit her communications to email correspondence. They have asked her to refrain from coming into the office and verbally abusing them the way she did in previous years. This has worked to a certain extent, but it cannot be easy to be in the position of the Applicant’s employees. They come to their place of employment day after day and find correspondence in their inbox that engages in insult, body shaming, name calling, and other types of coarse language and rudeness.

In light of this conduct, the Corporation took action and looked to both the provisions of OHSA and the Condominium Act, 1998 (“CA, 1998”) for relief. In particular, the Corporation was able to rely upon s. 117 of CA, 1998 which states: “No person shall…carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” Interestingly, the Court noted that the phrase “injury to an individual” has been interpreted to include psychological harm.

Relying on the anti-harassment obligations of employers in OHSA and the specific requirements of CA, 1998, the Court ordered that the owner/resident cease her abusive conduct towards the Corporation’s staff and pay costs for the matter in the amount of $15,000.00. While this is unlikely to have recouped the Corporation’s full expenses for the legal case, all-told, this was a positive outcome for the Corporation and surely a welcome relief for the targeted employees.

Our second case did not turn out quite so well. In Rainy River (Town) v. Olsen, the Town of Rainy River went to court to stop a resident from his ongoing abusive correspondence and comments to the Town’s mayor and its municipal staff. The Town sought an injunction to prevent the resident from persisting in this conduct.

Unfortunately for the Town, the application judge held that OHSA is somewhat limited in its application to third parties. The Court of Appeal agreed, stating:

The application judge found, at para. 35, that neither the Occupational Health and Safety Act nor the Town’s policy under it had any application to Mr. Olsen, since the harassment occurred outside the workplace and Mr. Olsen is not a worker or co-worker as defined by the Act. We see no error in this determination.” (emphasis added)

In our opinion, it seems a bit of a stretch to say that the harassment here occurred “outside of the workplace” given that the abusive conduct directly related to work communications sent by a resident to the Mayor and Town staff. However, it is likely that the Court was persuaded in this case by the fact that alternatives to an injunction were available to the Town that it had yet to utilize. In particular, near the end of its decision the Court of Appeal wrote:

We do not condone any of [the resident’s] abusive misconduct and are sympathetic to the concerns expressed by the mayor and others, including their fears that his misconduct could be escalating. [The resident] should draw no comfort from our words. Nothing prevents the mayor or others from suing [the resident] for defamation on the basis of his most recent email transmissions or should he repeat his conduct, subject to applicable notice and limitation periods. A definitive finding could well lead to a permanent injunction and expose him to penalties for contempt of court if he persists, such as imprisonment. [The resident] would be well advised to desist.
The appellants also have available other remedies to restrain [the resident’s] behavior such as issuing a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, or pursuing a peace bond under the Criminal Code.

The Takeaway

Despite the mixed results, we are heartened to see the real efforts made by these employers to protect their workers from harassment at work, no matter from where it stemmed. Not only does this reflect an acknowledgement of the anti-harassment duties stemming from OHSA but also the fact that ongoing harassment of employees is never acceptable.

Employers looking to stop outside harassment of workers are well advised to adopt a staged approach. Common sense should guide escalation. A first step may be to address the inappropriate conduct with the alleged perpetrator, perhaps incorporating a neutral investigation as part of this process. If this fails, further steps can be taken to limit opportunities for such communication and/or interactions. In the most severe cases, consider legal action such as: sending a cease and desist letter; issuing a trespass notice; seeking an injunction; and/or commencing a defamation actions (if applicable).

Even if an employer is not fully successful at the end of the day, the moral boast to workers of knowing that their employer is willing to go to bat to stop harassment in its tracks cannot be overstated.

This article was originally published on August 11, 2017 at First Reference Talks.