By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer and Notary Public of the Bars of Ontario, Guyana and Trinidad
Facts
The facts of
Taylor-Baptiste v. Ontario Public Service Employees Union,
2012 HRTO 1393 have not
been repeated in this analysis. The facts as accepted by the Tribunal could be
found in paragraphs 4 – 19 of the decision.
The Issue
The question of law decided by
the Tribunal is whether the content of the blog posts violated the protections
in section 5(1) and 5(2) of the
Human
Rights Code, R.S.O. 1990, c.H.19 (“the
Code”)
against discrimination
with respect to
employment and harassment
in the
workplace on the grounds of marital status and/or sex:
While the facts are straightforward, they
raise difficult and challenging issues and conflicting interpretive values. In
what circumstances are statements outside work hours, on line, “with respect to
employment” or “in the workplace.”? In what circumstances, if any, can a
manager make a
Code claim against the Union or its leaders for statements
directed at union members about the workplace relationship?
Legal Reasoning
The decision turned principally
on undisputed facts and law.
It was argued on behalf of the Applicant that a "blog is an extension of the workplace, and that social media, including blogs, Facebook and Twitter are integrally woven into the fabric of the modern workplace."
[25] I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet. It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.
The Applicant also argued that:
The Code does not have a hierarchy of those deserving of protection and those that do not based on whether they are frontline employees, supervisors, managers, union presidents or directors.“Every person” in an employment relationship therefore captures the relationship and interaction between a local president of a union and a manager who seeks to bring a human rights application before the Tribunal.
The Tribunal applied a purposive
and contextual interpretation of section 5 of the
Code.
The
Tribunal found that the blog comments were not harassment ‘in the workplace’
under section 5(2), even given its broadest interpretation. This was because
the posts ‘were made on a blog identified with the union that, although open to
the public, was directed at communication between union members and their
leadership.”
In other
words, the Tribunal is saying that for section 5(2) to apply to postings in
cyberspace, there must be a sufficient nexus or connection. The Tribunal was
less clear about what exactly would constitute a sufficient connection.
The Applicant in her submission submitted that
"to establish that a
blog, a facebook group or any other form of social media form part of the
workspace a nexus has to be established between the employer and the errant
employee in cyberspace and this could be done by quantification of the number
of explicit references, quantification of the number of named individuals,
direct/indirect references and a corollary assessment of the employer’s policy
practice in this area and response to the particular incident are key starting
points."
While it is not mentioned anywhere in the Tribunal's judgment, on October 27, 2011, the Tribunal dismissed a Request for Order during proceedings in which “the
Applicant request the following Orders in advance of the proceedings to be
dealt with in writing:
i.
That the Respondents disclosed to the Applicant,
through her counsel:
a) The IP
addresses and email addresses for the anonymous posters;
b) Raw data
logs that showed the visitors to the Blog at the material time the material
were posted;
c) All
deletions and updates to the Blog for the material time.”
The Tribunal said at the time this evidence was tangential to the main issues - yet the absence of this very evidence was significant to whether or not the postings originated "in the workplace."
In considering whether the
respondent’s actions constituted discrimination under section 5(1) of the Code, the Tribunal deemed it necessary
to consider all relevant circumstances, including:
- the seriousness of the conduct;
- their significance;
- their effect on the workplace;
- the role of the person making them;
- the effect on the applicant; and
- the reaction of the respondent to any concerns raised
The Tribunal held that Mr.
Dvorak’s comments were protected by the right to freedom of expression in
section 2(b) of the
Canadian Charter
Rights and Freedoms and also the right to freedom of association in section
2(d) of the
Charter.
“This case involves an issue of competing
rights” Ms. Taylor – Baptiste’s
Code
rights to freedom from discrimination with respect to employment and harassment
in the workplace and the union’s core
Charter
rights to express themselves on matters of concern in the union-management
relationship.”
Balancing the competing rights of
the applicant and the respondent, the Tribunal assessed Mr. Dvorak’s rights
against the appellants right to freedom from discrimination with respect to
employment and harassment in the workplace: “The Tribunal has emphasized that
ambiguity in the scope of
Code rights
should be resolved in favour of protecting matters at the core of Charter
rights and freedoms.”
The
Tribunal disagreed that merely mentioning the applicant by name “as being the
spouse of Mr. Gray, or as being the ex-spouse of Mr. Taylor-Baptiste” or simply
raising concerns about nepotism without accompanying denigrating or humiliating
comments, was sufficient to amount to discrimination on the basis of marital
status.
The Tribunal was concerned about
“the use of sexist language to convey the point of nepotism.” It found that the
Respondent “drew upon frequently used sexist stereotypes about women in
positions of power ‘sleeping their way to the top” through suggesting that her
qualifications for the job was ‘intimate knowledge of another deputy.’” The Tribunal
also found that the comment “if you don’t know the answers to something this
simple you should call your boyfriend over at his office” draws upon the
stereotype that women get ahead through their relationships with more competent
‘boyfriends.’”
It found
that the comment“ ...let Ms. Baptiste know that if she needs any help making a
decision in the future, I’m sure he (the Applicant’s ex-husband) would help
her. Maybe she should go back to her maiden name, or Gray, so as not to
besmerch (read besmirch) the good ‘union’ name of Taylor-Baptiste” “also raised
issues of sexism.”
“Then Tribunal went on to find that “this issue and suggestion targets her as a
woman because it was traditionally women who were expected to change their
names upon marriage. This is an issue of gender and it singles her out as a
woman.”
The Tribunal then observed that
Mr. Dvorak failed to consider or address at that time the ways in which his
posts could violate the
Code or hurt
individuals.”
Despite this, the Tribunal found
that respondents did not discriminate against the applicant.
The Tribunal assessed the following key
factors to reach the decision:
Mr. Dvorak’s conduct as a Union President: as an
active participant on behalf of the union in a process of restoration of a
workplace that had been poisoned through racists hate mail; the Tribunal
accepted the respondent’s evidence that the Mr. Dvorak had genuine
concerns about nepotism and his comments were directed at union membership
and related to the union-management relationship.
- Frequency of the posts: the applicant was only mentioned once in
the blog even though the blog was publicly accessible for a month; the
tribunal also mentioned that the posts lost significance as more issues
were raised.
- Union comments on workplace issues are
constitutionally protected expressions of opinion and exercise of freedom
of association and the union’s right to operate independently of the employer.
“Strong criticism from the union is often inherent in being a manager in a
tense unionized workplace.”
Based on these factors, the
Tribunal held that ‘while they [the blog posts] were relied upon sexist
language, they were not gratuitous attacks unrelated to union business.” The
Tribunal stated that the most important factor was the fact that “union
comments on workplace issues are constitutionally protected expression of
opinion and exercise of freedom of association, and close to the core of those
rights.”
The Tribunal in weighing the
competing rights in this case found that “most significant to my decision in
this case are that the postings are tied to communications to the membership on
issues of labour-management relations and the absence of
Code-related effects in the workplace.”
As a result of these findings,
the Tribunal found that the applicant was not harassed and not discriminated
against by the Respondents and ordered that the Application be dismissed.
No decision has yet been made on whether or not the Applicant will be judicially reviewing this decision.
Selwyn A. Pieters - Lawyer and Notary Public; 2012 All rights reserved
