Selwyn: July 2012

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?[1]

Legal Reasoning

The decision turned principally on undisputed facts and law.[2] 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.[3]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.”[4] 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.[5] “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.”[6]

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.”[7] 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.[8]

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.’”[9] 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.”[10] “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.”[11]

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.”[12]

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.[13]

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.[14]
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. [15] “Strong criticism from the union is often inherent in being a manager in a tense unionized workplace.”[16]

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.” [17] 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.”[18]

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.”[19]

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

[1] Taylor – Baptiste v. Ontario Public Services Employees Union 2012 HRTO 1393, para 2.

[2] See para. 3 of the judgement

[3] See para. 21 of the judgement

[4] See para. 26 of the judgement

[5] See paragraph 29 of judgment. The Tribunal placed reliance on the recent Supreme Court decision in Fraser v. Ontario (Attorney General), 2011 CarswellOnt 2695; 2011 SCC 20 as support for this proposition. It was argued that the conduct engaged in by Mr. Dvorak “was not to be considered collective bargaining towards a collective agreement.”

[6] See paragraph 36 of the judgment

[7] Ibid.

[8] See paragraph 30 of the judgment

[9] See paragraph 31 of the judgment

[10] See paragraph 34 of the judgment

[11] Ibid.

[12] See paragraph 35 of the judgment

[13] See paragraph 35 and 37 of the judgment

[14] See paragraph 36 of the judgment

[15] See paragraph 37 of the judgment

[16] See paragraph 39 of the judgment

[17] See paragraph 40 of the judgment