If you don’t have anything nice to say – say it anyway, you’re protected by the Charter

Ontario union leader’s potentially discriminatory comments about manager were made in context of providing information to union members

As many employers may have experienced during labour unrest and collective bargaining negotiations, tensions between management and union representatives can rise to heated levels. Even in the face of difficult negotiations, and in light of the dismissal of the employee from Hydro One for his sexist remarks in May of this year, most people involved in labour disputes are cautious in what they choose to say or write publicly. No such caution was exercised in the case of Taylor-Baptiste v. OPSEU, where the president of the local union representing employees at a Toronto jail, Jeff Dvorak, criticized the manager, Mariann Taylor-Baptiste, in public blog posts.

In 2009 Dvorak began to operate a blog to communicate with local union membership about the status of the negotiations that were ongoing. Dvorak rightfully communicated to his membership, but on at least two occasions failed to censor his personal frustration with the negotiating process. Two blog posts were made that attacked Taylor-Baptiste on the basis that she only got her job because of her personal relationships and insinuated that she was incompetent at her position compared to her male counterparts.

Taylor-Baptiste was upset by the blog posts and filed a complaint with the Ontario Human Rights Tribunal on the basis that she was discriminated in the workplace within the meaning of s. 5(1) of the Human Rights Code on the basis of marital status and sex. The tribunal considered the blog posts and, despite finding them to be distasteful, the tribunal decided that there was no discrimination because the comments were protected under the rights of freedom of expression and freedom of association under the Canadian Charter of Human Rights and Freedoms. The tribunal dismissed the claim for two reasons:

· There was no discrimination because of an absence of code-related affects in the workplace

· The communication was tied to speaking to union membership on issues of labour-management relations, which was protected by the charter.

After the Ontario Divisional Court dismissed Taylor-Baptiste’s first appeal by finding the decision of the tribunal was reasonable, the Ontario Court of Appeal reaffirmed that administrative decision makers, including the Human Rights Tribunal, are required to consider charter values when making decisions within their scope of expertise. The main issue in this case was whether the blog posts were sufficient to be within the meaning of s. 5(1)’s language prohibiting discrimination with respect to employment. This analysis required balancing statutory objectives with charter values. The Human Rights Code’s intent is to protect employees from a poisoned work environment. The tribunal and the court found that Taylor-Baptiste was not negatively affected on a code ground and Dvorak’s speech was protected under freedom of expression and freedom of association because of his role as union president.

Employers should take note that going forward, communications made by union leadership to membership will be assessed in light of the charter values of freedom of expression and freedom of association. As a result there is a possibility that some union leadership may view this case as a blanket exemption protecting all forms of union communication from the requirements and limits established by the code in s. 5(1). However, the Court of Appeal did state that there was to be no blanket exemption on the basis of the charter for union communication and that this case was determined because of the specific facts limiting the discrimination claim combined with charter values.

For more information see:

· Taylor-Baptiste v. OPSEU, 2015 CarswellOnt 10061 (Ont. C.A.).

Angela Wiggins is an articling student with CCPartners in Brampton, ON, specializing in labour and employment law. She can be reached at (905) 874-9343 ext. 227 or awiggins@ccpartners.ca.

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