By now, most employers are well aware of the duty to protect employees from workplace harassment. However, what happens when the harasser is outside the workplace? Is the duty to protect still triggered?

Most employment lawyers in Ontario would advise that an employer can (and should) take to protect its employees from workplace-related harassment, regardless of the source of that harassment.  However, a recent decision by the Ontario Court of Appeal appears to cast doubt on the idea that the Occupational Health and Safety Act (the “OHSA”) and workplace harassment policies apply to harassment perpetrated by non-employees.

Last week, the Ontario Court of Appeal (the “ONCA”) refused to grant a Municipality’s request for an injunction against a resident who had engaged in “abusive misconduct” in his communications to and about the mayor and the Municipality. In the original decision, the court found that neither the OHSA nor the Municipality’s harassment policy applied to the actions of the resident, who was not an employee. Specifically, the court held that:

[by] inference, the definition of “workplace” in s. 1(1) of the Act relates to a setting that is under the control or direction of the employer. The [municipality]’s policy further narrows the application of the policy when harassment occurs outside the workplace.  In those circumstances, the policy applies to harassing phone calls and visits to a person’s home only if the harasser and the person being harassed are employees of the [municipality] and the incident poisons the workplace. In this case, [the resident] is not a co-worker; accordingly, the policy does not apply. In my view, the facts of this case do not call for a declaratory order. The application for a declaration is therefore dismissed.

Does this decision mean that an employer does not have an obligation to protect its employees from external harassment? To put it simply – no. The unique facts of this case distinguish it from prior case law in which it is clear that an employer has a duty to maintain a harassment-free workplace, and that there is no automatic exemption because the harasser is not an employee. The reasons that the ONCA found that the OHSA and harassment policy did not apply to the “abusive misconduct” include the following:

The only evidence of “harassment” (as opposed to negative communications to others) occurred in a workplace controlled by another employer: The mayor had a full-time job in a hospital, and the alleged harassment occurred at the hospital, a premises outside the Municipality’s control. To extend the definition of the Municipality’s “workplace” to a workplace within another employer’s control could lead to expanded and indeterminate liability for employers.

The resident was not an employee, so outside harassment had no connection to the workplace: If an employee harasses a fellow employee outside the workplace, then there is still a logical nexus between the harassment and the employment relationship. Since the resident was not an employee, the court did not find any relation to the workplace, and therefore the OHSA did not apply. (The court did not consider that the resident’s comments explicitly related to the mayor’s performance of her duties, which arguably do have a connection to the workplace.)

The Municipality’s harassment policy did not explicitly provide for protection from harassment arising or occurring outside the workplace, except in limited circumstances: Since the OHSA did not apply in this matter, the Municipality relied on its policy to argue that it had a duty to protect the mayor. However, the policy did not speak to harassment outside the workplace by non-employees, so the Municipality could not argue that the policy created an obligation to protect the mayor from the resident’s actions.

There were no other claims for statutory/contractual/tortious breaches by the resident: Neither the

Municipality nor the mayor alleged other claims against the resident, such as defamation, which is (arguably) more applicable to the mischief caused by the resident. If they had made such claims, and if the court had found wrongdoing, then the court could have issued declaratory “cease and desist” relief against the resident.

Here are the RT takeaways from this decision:

The OHSA duty to protect an employee from workplace harassment does not stop at the door: Given the broad interpretation of the OHSA and the general duty of good faith to an employee, the ONCA decision should not be viewed as a narrowing of the duty to protect an employee from unsafe work conditions. So long as there is a clear nexus between the harassment and the workplace, the duty to protect will be engaged.

There are other cases in which employers have obtained injunctions against non-employees for harassment against employees: Where there is a more clear nexus between the workplace and the harassment and where the outsider’s behaviour is (arguably) more extreme, the courts granted injunctions restraining the outsider (see York Condominium Corp No 163 v Robinson).

Litigation is not the only way to protect an employee from external harassment: An employer can take other steps to prevent a third party’s actions from creating an unsafe work environment – e.g. stepping up security; banning an abusive party from the premises; changing the employee’s work location; etc.

An employee can still take legal steps to stop the harassment or defamation in his, her or their personal capacity: Both the lower court and the ONCA commented that their decisions did not prevent the mayor from bringing a claim for defamation in her personal capacity.

While the recent ONCA decision provides guidance to employers about their ability to restrain outsiders from harassing its employees, it does not, in my view, limit an employer’s duty to protect its workers.

Particularly in workplaces in which there is frequent interaction with the public (e.g. municipal employees, salespeople on the road, etc.), employers must be sensitive to and proactive about the potential for external harassment.