by Nicole Singh
Canadian tribunals have consistently ruled that communications by employees on social media can be viewed as an extension of the workplace. Improper communication on such platforms can therefore be considered a form of workplace discrimination under Canadian human rights laws. Discipline or termination can sometimes be appropriate.
However, in the decision Taylor-Baptiste v. Ontario Public Service Employees Union, a union official’s sexist and offensive blog posts about his manager were found to not constitute discrimination under Ontario’s Human Rights Code. Instead, the comments in the blog posts were protected by his constitutional free speech and associational rights under the Canadian Charter of Rights and Freedoms.
Legal proceedings
The case involved Mariann Taylor-Baptiste and Jeff Dvorak, both of whom worked at the Toronto Jail. Taylor-Baptiste was Dvorak’s manager. Dvorak was president of the jail’s union, a local of the Ontario Public Service Employees Union (OPSEU).
In early 2009, the jail and OPSEU were involved in intense collective bargaining. During this time, Dvorak operated a blog about issues in the workplace. The blog was available to the public and was widely read. Blog entries by Dvorak and others strongly criticized the employer and individual managers. Many posts used strong language. Some even used profanity.
The case focused on two blogs—one written by Dvorak, the other written by another Toronto Jail employee but approved by Dvorak. The posts accused Taylor-Baptiste of nepotism and incompetence. They stated that the only reason she was hired was because of her common law spouse who worked for the Toronto West Detention Centre.
Discrimination complaint to tribunal: Taylor-Baptiste complained to the Ontario Human Rights Tribunal. She alleged discrimination “with respect to employment” contrary to section 5(1) of the Code and harassment “in the workplace” contrary to section 5(2) of the Code. More specifically, Taylor-Baptiste alleged that the two posts belittled her on the basis of sex and marital status because they relied on stereotypical views about women obtaining positions of power through sexual relations.
The tribunal concluded that although the comments in the blogs were sexist and offensive, the claim for discrimination “with respect to employment” could not succeed. The tribunal also found that the harassment did not occur “in the workplace.” The tribunal stated that the words “with respect to employment” were ambiguous, thus necessitating a balancing of Dvorak’s Charter rights against Taylor-Baptiste’s right to be free from discrimination in accordance with the Human Rights Code.
The tribunal concluded that Dvorak made or authorized the comments “in the course of his duties as a … union president.” His comments therefore enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by subsections 2(b) and (d) of the Charter.
Appeal of tribunal’s decision: Taylor-Baptiste appealed the tribunal’s decision to the Ontario Divisional Court. That court unanimously dismissed her appeal on the basis that the tribunal’s decision was reasonable.
Taylor-Baptiste then appealed the Divisional Court’s decision to the Ontario Court of Appeal. She argued that the tribunal erred in finding that the blog posts did not constitute discrimination “with respect to employment” under s. 5(1) of the Code. That appeal was also denied.
The Court of Appeal agreed with the Divisional Court that the tribunal’s decision was reasonable. In reaching this conclusion, the court reaffirmed that section 2(b) of the Charterprotects a broad range of expressive activity, including “distasteful” expression. The court found that although the blog postings were distasteful, sexist and rude, they did not constitute hate speech. The court ultimately concluded that the posts constituted union comments on workplace issues and, therefore, were constitutionally protected expressions of opinion and a valid exercise of freedom of association.
Taylor-Baptiste then sought to appeal the Ontario Court of Appeal’s decision to the Supreme Court of Canada. However, the Supreme Court recently refused her application for leave to appeal.
Implications of this decision
The implications of these decisions are yet to be seen. The tribunal expressly stated that its analysis was confined to the facts before it and that the result might be different in another case. However, this decision has the potential to create a blanket exemption protecting all forms of union speech, including speech that is sexist or otherwise offensive on human rights grounds, from the requirements of section 5 of the Code.
Since the Charter applies across Canada, and other provinces and territories have similar human rights laws, this could have broad implications across the country.
