As a result, the mayor and the Town creatively brought forward an application seeking a declaration that the resident's behaviour was a violation of the town's "Violence Free in the Workplace Policy" and the "Harassment Policy" under the Occupational Health and Safety Act2 ("the Act").
The application judge determined that the Town's policies and the Act did not apply to the resident, as he could not be defined as a worker under the Act. Although the Act has a provision addressing harassment to workers outside the workplace, it requires the parties to be employees of the town and requires behaviour or incidents to result in a poisoned work environment.
The application judge's finding was upheld on appeal.
The mayor and the Town also requested a permanent injunction stopping the resident from making "statements or comments about [the mayor] or any other town councillor, employee or agent that are defamatory and/or made with malice or ill-will."3 The application judge refused to grant this relief as well, deciding that a permanent injunction against the resident would have only been appropriate if a finding of defamation had been made. However, the mayor and the Town had not sought a finding of defamation nor had one been determined. Accordingly, the application judge decided that granting a permanent injunction would not be an appropriate remedy. This finding was also upheld on appeal.
... carefully consider the wording of their workplace safety and harassment policies in order to ensure their workers are adequately protected ... |
The decision in Rainy River (Town) v Olsen is an important illustration of the balancing of interests involved when attempting to obtain a remedy to a dispute. Employers generally – and public sector employers specifically – should carefully consider the wording of their workplace safety and harassment policies in order to ensure their workers are adequately protected from abusive or unwanted conduct from other employees, and individuals that are not employed by the company or government agency. This case is also a cautionary tale that if an employer and/or employee wish to engage the civil justice system (as opposed to involving the police) to resolve an ongoing dispute by compelling an individual to desist abusive conduct, all remedies and avenues should be considered at the outset. The Court of Appeal concluded as follows:
We do not condone any of Mr. Olsen's abusive misconduct and are sympathetic to the concerns expressed by the mayor and others, including their fears that his misconduct could be escalating. Mr. Olsen should draw no comfort from our words. Nothing prevents the mayor or others from suing Mr. Olsen 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. Mr. Olsen would be well advised to desist.
Read the full decision here.
1 2017 ONCA 605.
2 R.S.O. 1990, c.O.1.
3 Supra note 1 at para 4.
