Court of Appeal Clarifies Freedom of Speech in Government Workplaces

A recent decision of the Ontario Court of Appeal could have implications for how public-sector employers respond to harassment by customers. In Bracken v Fort Erie (Town), 2017 ONCA 668, the Court considered whether the Town of Fort Erie was justified in issuing a trespass notice against a man who had made town employees feel “unsafe.” The Court held that the trespass notice violated s 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”), which protects freedom of expression.

The Plaintiff, Mr. Bracken, was a self-described “citizen journalist” who chose to represent himself in Court. He was a frequent presence at the Fort Erie Town Hall, where he regularly and loudly expressed disapproval of the municipal government’s decisions. The Court acknowledged that Mr. Bracken “can be confrontational, loud, agitated, and excitable. He is a large man and some people find him intimidating.” Town staff complained of “bullying” by Mr. Bracken and alleged that his presence made them feel “unsafe.” Eventually, the Town’s Chief Administrative Officer issued a trespass notice against Mr. Bracken, banning him from the Town Hall. Mr. Bracken ignored the notice and was arrested while protesting a short time later. He then challenged the notice under s 2(b) of the Charter, alleging that his freedom of expression had been violated.

The Town argued that the trespass notice was necessary under the Ontario Occupational Health and Safety Act (“the OHSA”), which requires employers to “take every precaution reasonable in the circumstances” to protect employees from harassment in the workplace. The Court disagreed. While Mr. Bracken may have been loud and even intimidating, he was never threatening, let alone violent. Thus, his conduct did not justify a trespass order. The Court accepted that Mr. Bracken’s conduct made Town staff feel unsafe, but held that “a person’s subjective feelings of disquiet, unease, and even fear” do not trump freedom of expression.

The relevance of the Bracken decision may be limited as most employers are not bound by the Charter. In the employment context, the Charter applies to government employers and to employers that are “substantially controlled” by the government. For example, the Charter has been found to apply to colleges and, in some cases, to hospitals.

What is interesting and potentially vexing for these employers is how to protect employees from harassment (and fend off a claim for constructive dismissal) if their remedies are limited.

Monkhouse Law practises in workplace law for both employees and employers. If you have questions about harassment or bullying in the workplace contact Monkhouse Law today for a free phone consultation.

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