CITATION: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169

DIVISIONAL COURT FILE NO.: 192/13 JR

DATE: 20140528

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Aston, Whitaker, JJ.

BETWEEN:

Mariann Taylor-Baptiste

Applicant

– and –

Ontario Public Service Employees Union, Jeff Dvorak and Human Rights Tribunal of Ontario

Respondents

– and –

Attorney General of Ontario, Ontario Human Rights Commission and Canadian Civil Liberties Association

Intervenors

Ranjan Agarwal & Amanda McLachlan, for the Applicant

Nick Coleman & Michael Fenrick, for the Respondents, OPSEU and Jeff Dvorak

Margaret Leighton, for the Respondent, the Human Rights Tribunal of Ontario

Raj Dhir & Sunil Gurmukh, for the Intervenor, Ontario Human Rights Commission

Cara Faith Zwibel, for the Intervenor, Canadian Civil Liberties Association

Matthew Horner and Sara Weinrib, for the Attorney General of Ontario

HEARD at Toronto: February 13, 2014

REASONS FOR DECISION

Aston, J.

Nature of the Proceeding

[1] Ms. Taylor-Baptiste brings an application for judicial review of two decisions of the Human Rights Tribunal of Ontario (the “Tribunal”) dated July 16, 2012 and February 1, 2013. The Tribunal dismissed her complaint alleging discrimination with respect to employment and freedom from harassment in the workplace under s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Her complaint to the Tribunal arose from blog posts made by Jeff Dvorak (“Dvorak”), then the president of the Ontario Public Service Employees Union, Local 530 (“OPSEU”) on a blog he created and maintained.

[2] The Attorney General of Ontario and the Ontario Human Rights Commission intervene in support of Ms. Taylor-Baptiste’s judicial review application. The Canadian Civil Liberties Association intervenes in support of Dvorak and OPSEU. Ms. Taylor-Baptiste’s employer, the Ministry of Community Safety and Correctional Services is not a party to this application, nor was it a party to the Tribunal proceeding.

Background

[3] The applicant was at all relevant times a manager at a correctional facility known as the Toronto Jail. Correctional officers at the Toronto Jail are represented by OPSEU and at the relevant times Mr. Dvorak was president of Local 530 of OPSEU.

[4] In the fall of 2008, while fractious collective bargaining between OPSEU and the Province was under way, Dvorak started a blog to communicate with OPSEU membership about union/management issues. The blog was publicly accessible and not password protected. Anyone could make comments to the blog posts but Dvorak had to approve them before they were displayed. Dvorak’s blog was widely read, commented on and discussed. The atmosphere in the workplace was fraught with tension and the blog posts reflected that.

[5] Ms. Taylor-Baptiste’s spouse at the time, Mr. Gray (also referred to as her “boyfriend”), was a manager at another correctional facility. Her former spouse was a popular and well-known local union executive.

[6] This application deals with two particular blog posts on January 16, 2009 and January 21, 2009. The first one, posted by Dvorak, read as follows

RO’S STEP Up

Yesterday our annex staff had a valid concern regarding the conditions they HAVE TO walk through to get to there [sic] work stations. Yet there [sic] deputy waited hours to call someone else to ask what she should do. First of all if you don’t know the answers to something this simple Ms. Baptiste maybe you should call your boyfriend over at his office after all he is the only reason you got the job. Clearly all you have shown is an inability to handle even the easiest of situations or staff relations. Perhaps our senior administration should reconsider there [sic] hiring practices for deputy’s [sic] and change the qualifications from having intimate knowledge off [sic] another deputy to something like maybe some experience doing the job, like Mr. Puntillo. Oh yeah I forgot doing the job for three years doesn’t even get you an interview. Anyways congratulations to the annex staff well done and keep showing this employer they can’t forget about you. I am out of town in Ottawa actually to tell some mp’s and senators just what kind of conditions we are working in but will be back tomorrow until then keep up the good fight!!!!!!!!!

[7] The second of the alleged offending blog posts was written by an anonymous poster but approved by Dvorak. It read as follows:

EXCELLENT WEBSITE GUYS AND GREAT COMMENTS/EDITORIALS BY YOUR PRESIDENT. GOOD TO SEE THAT THE MINISTRY IS A PROUD SUPPORTER OF THE “PETER PRINCIPLE” – ONE’S LEVEL OF INCOMPETANCE [sic] REACHED AND EXCEDED [sic] (could apply to all managers). AS A FELLOW C.O. I WOULD LIKE TO POINT OUT THAT MR. TAYLOR-BAPTISTE, IS NOTHING LIKE HIS “X” AND SHE COULD ACTUALLY TAKE GUIDANCE FROM HIS WORK ETHIC. HE IS THE UNION SCHEDULING ASSISTANT HERE AT O.C.I. AND PERFORMS HIS DUTIES WITH EXCEPTIONAL COMPITANCE [sic]. HE IS ALL ABOUT FAIRNESS AND DOING THE RIGHT THING FOR THE STAFF. IN HIS PRESENT CAPACITY HE HAS TO RELATE TO MANAGERS AND ALWAYS CHAMPIONS STAFF ISSUES AND CONCERNS. HE HAS THE FULL SUPPORT OF ALL THE UNCLASSIFIED STAFF, AS WELL AS THE CLASSIFIED. “T.B.” AS HE’S KNOWN, IS VERY DIPLOMATIC WITH ALL THE STAFF HERE, AND I BELIEVE HAS MANAGEMENTS RESPECT. IMAGINE THAT; A C.O. EARNING RESPECT! KEEP UP THE GOOD WORK AND LET MS. BAPTISTE KNOW THAT IF SHE NEEDS ANY HELP MAKING A DECISION IN THE FUTURE, I’M SURE HE WOULD HELP HER. MAYBE SHE SHOULD GO BACK TO HER MAIDEN NAME, OR GRAY, SO AS NOT TO BESMERCH [sic] THE GOOD “UNION” NAME OF TAYLOR-BAPTISTE.

[8] In January and February, 2009, management asked Dvorak to remove the posts but he refused to do so. Dvorak’s refusal was based on his belief that management should not tell him what he ought to post on a union local website. He also professed a genuine belief that nepotism was rampant in the workplace and that the first blog post was intended to communicate that point. However, he did comply with the request on February 12, 2009, after the blogs had already received widespread circulation and comment. After February 12, 2009, the blog site was inaccessible without a password and it has not been accessible since that time.

[9] The resolution of the issues between union and management engaged a “workplace restoration process” under the direction of the Crown Employees’ Grievance Settlement Board. Mr. Dvorak participated in the restoration process. Part of that process included an agreement that certain misconduct during the bargaining period would not attract discipline, including specifically the blog posts of Dvorak and other union employees. The upshot of that is that Ms. Taylor-Baptiste had no means by which to pursue a complaint relating to the blogs through her workplace. Instead, she lodged her complaint with the Tribunal in December 2009. It was not heard until December 2011. The first decision dismissing her complaint was released July 16 2012 (the “original decision”).

[10] Ms. Taylor-Baptiste sought reconsideration of the decision. As is the Tribunal’s usual practice, her reconsideration request was dealt with by the same decision-maker who heard the matter, the Associate-Chair. On February 1 2013 the reconsideration request was denied, with reasons (the “reconsideration decision”).

The Decisions of July 16, 2012 and February 1, 2013

[11] Section 5(1) of the Code protects “equal treatment with respect to employment without discrimination” because of enumerated grounds that include sex and marital status.

[12] Section 5(2) of the Code provides employees with “a right to freedom from harassment in the workplace”, as does s. 7(2). The Code defines “harassment” in s. 10(1) as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

[13] In its decision of July 16, 2012, the Tribunal found that the blog comments did not occur “in the workplace” regardless of whether the blogs otherwise amounted to vexatious comment or conduct. It dismissed the s. 5(2) complaint on that basis.

[14] The Tribunal recognized that under s. 5(1) discrimination “with respect to employment” may be broader in its scope than conduct “in the workplace”. The Tribunal accepted that the blog posts could constitute discrimination with respect to employment even if those blogs were outside the actual workplace. However, it dismissed Ms. Taylor-Baptiste’s discrimination complaint under s. 5(1), relying in large measure on the Charter protected rights of freedom of expression and freedom of association of Dvorak and OPSEU. The Tribunal found that the posts were communications to union membership on issues of labour/management relations made by the local union president in the course of his duties and “close to the core” of the union’s constitutional rights under the Charter.

[15] Paragraph 30 of the original decision reads as follows:

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 Mr. Dvorak and the union’s core Charter rights to express themselves on matters of concern in the union-management relationship. In my view, these rights must be balanced and all the circumstances considered in determining whether there is discrimination with respect to employment under s. 5(1).

[16] At paragraph 40 of the original decision the Associate-Chair characterizes the Charter rights of Dvorak and OPSEU as “most important”. On the other hand, the reconsideration decision makes no reference to those Charter rights in further explaining the original decision. More on that to follow.

[17] Courts and Tribunals have recourse to the Charter in any exercise of statutory interpretation if Charter rights or values are needed to assist in resolving an ambiguity in meaning or if a decision maker in exercising a statutory discretion may violate a Charter right. The Tribunal referred to the Charter because it found that the scope of s. 5(1) of the Code was ambiguous.

Issues

[18] There are three issues:

(1) Did the Tribunal breach principles of procedural fairness and natural justice in denying the applicant’s disclosure request regarding technical information concerning the blog posts?

(2) Did the Tribunal err in concluding that the blog posts were not “in the workplace” and therefore not within the scope of s. 5(2) of the Code?

(3) Did the Tribunal err in concluding that the blog posts were not “discrimination with respect to employment” and therefore not within the scope of s. 5(1) of the Code?

Standard of Review

[19] On the issue alleging breach of procedural fairness the court does not engage in a standard of review analysis but decides whether the applicant has established a procedural error rising to the level of a breach of natural justice. If such a breach is established the decision must be quashed regardless of whether it is otherwise apparently fair or reasonable.

[20] On the issues respecting the scope of s. 5 of the Code the parties agree the standard of review is reasonableness. Having regard to the expertise and specialization of the Tribunal and the legislated standard of review the decision is entitled to the “highest degree of deference”. See Shaw v. Phipps, 2012 ONCA 155 at para. 10.

Issue 1- Did the Tribunal breach principles of procedural fairness and natural justice in denying the applicant’s disclosure request regarding technical information concerning to the blog posts?

[21] The applicant did not press this ground in oral argument.

[22] We adopt the reasons cited by the Associate-Chair in paragraphs 14 to 23 of the reconsideration decision in concluding there was no denial of procedural fairness in refusing the applicant’s request for disclosure of the third party information. There is no merit to this aspect of the application.

Issue 2 - Did the Tribunal err in concluding that the blog posts were not “in the workplace” and therefore not within s. 5(2) of the Code?

[23] At paragraph 26 of the original decision, the Associate-Chair found that the blog posts were identified with the union and, though open to the public, were essentially directed at communication between union members and their leadership. He observed that there was no evidence Dvorak made the posts while at work. In the reconsideration decision the Tribunal characterized the posts as akin to a union newsletter or union meeting. While recognizing that there may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”, the Tribunal found that the blog posts in this particular case were not in the workplace.

[24] This is an issue of mixed fact and law at the heart of the Tribunal’s expertise. The conclusion that the blog posts are outside the scope of s. 5(2) of the Code is not unreasonable. We defer to the Tribunal on the point, which is fatal to Ms. Taylor-Baptiste’s complaint under s. 5(2) of the Code.

Issue 3 - Did the Tribunal err in concluding that the blog posts were not “discrimination with respect to employment” and therefore not within the scope of s. 5(1) of the Code?

[25] The Tribunal recognized that “discrimination with respect to employment” can occur even if it is not “in the workplace” per se. See paragraph 27 of the original decision. Paragraphs 33 and 34 of the original decision imply that Ms. Taylor-Baptiste met the onus of demonstrating the blog posts could be characterized as “discrimination” based on sex and marital status. In addressing the issue of whether they were “discrimination with respect to employment”, the Associate-Chair first considered the relative seriousness of the words, the context in which they were published, the dual capacity of Dvorak as employee and union leader and the impact of the blog posts within the workplace. He then balanced the applicant’s rights under the Code with the Charter rights of Dvorak and OPSEU. See paragraph 30 of the original decision, quoted above.

[26] The analysis in this case is made more difficult by the fact that the parties and the intervenors all put different interpretations on what the Tribunal decided and its potential ramifications. Though the Associate-Chair takes pains at the end of the original decision to “emphasize that this decision is not intended to preclude arguments that blog posts in other contexts could fall under s. 5(1), or that expressions of union opinion could constitute discrimination in other circumstances”, the parties and the intervenors are concerned with the precedent set by this case.

[27] Counsel for the applicant asserts that this case is about “whether union speech is subject to the Code” and “whether unions are exempt from the Code” or “enjoy immunity” based on the Charter. I do not accept that characterization as an accurate reflection of what the Tribunal decided.

[28] The applicant and the Attorney General of Ontario submit that the decision in this case creates a “human rights-free zone” in union workplaces. In my view that is an exaggeration. The Associate-Chair took pains to say more than once that the outcome here is based on the particular constellation of facts in this case.

[29] Superficially, the reasons suggest that the Charter rights of Dvorak and OPSEU trumped the rights Ms. Taylor-Baptiste has under the Code. However, a closer look at the reasons reveals that this is not the case. The Charter rights of Dvorak and OPSEU are ultimately just a factor that was considered, amongst others, in deciding as a question of mixed fact and law in the particular circumstances of this case, whether the blog posts were within or outside of s. 5(1) of the Code.

[30] The submission of the applicant, supported by the Attorney General of Ontario, is that Charter rights to freedom of expression and freedom of association can never be a defence to harassment or discrimination under the Code. More particularly, the applicant and Attorney General of Ontario submit that, absent a challenge to the constitutional validity of s. 5 of the Code, the Charter only comes into play if the language of s. 5(1) is ambiguous or if the decision maker is making a discretionary decision, such as when making a remedial order subsequent to a finding of discrimination under the Code. They submit that it was an error to even consider the Charter because there is nothing ambiguous about the words in s. 5(1) of the Code protecting against “discrimination with respect to employment”. They assert that this is a factual determination and the inquiry of the Tribunal in this case should not go beyond determining that the offending words were comments by one employee about another and the offending words were linked to the complainant’s employment. They submit that the blog posts were not only offensive and written by one employee about another, but in addition to that were widely communicated to many other union and non-union employees and therefore clearly and unequivocally constituted “discrimination with respect to employment”.

[31] Alternatively, they submit that the Tribunal erred in its Charter analysis by failing to consider whether the provisions of s. 5 of the Code imposed a reasonable limit on the Charter rights of Dvorak and OPSEU.

[32] The applicant and the Attorney General of Ontario do not disagree with the Tribunal’s statement in paragraph 29 of the original decision that “ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of Charter rights and freedoms”. However, they do disagree with the assumption that there is any ambiguity in the circumstances of this case. They submit that the difficulty of drawing a boundary on the scope of s. 5 of the Code as a question of fact and policy is not an “ambiguity” with respect to the meaning of s. 5.

[33] The three respondents, supported by the Canadian Civil Liberties Association, submit that Charter rights of freedom of expression and freedom of association are always a potential defence to complaints under the Code. They submit there is a real ambiguity in s. 5(1) of the Code concerning the meaning of the words “with respect to employment”. On one hand Mr. Dvorak was a fellow employee, but on the other he was also a union president communicating with his membership during a labour dispute. The respondents submit that “union speech” is essentially unfettered under the Code, because of the Charter. The respondents accept that protected union speech would not include hate speech, but the blog posts in this case are nowhere near that end of the spectrum. The respondents submit that it was open to the Tribunal, on the particular facts of this case, to find that the speech at issue fell on the side of protected union expression.

[34] OPSEU and Dvorak submit that in the ordinary and grammatical sense the words “with respect to employment” are broad words, capable of bearing more than one meaning, including the meaning advanced by them. The respondents submit that the Tribunal recognized that the Code does not capture all discrimination but only creates a limited right to be free of discrimination in the prescribed areas governed by the Code. Part of the reason for the Code’s limited application is so as not to intrude on other social areas such as public debate (particularly in the context of a labour dispute) that does not fall within the Code’s mandate.

[35] I agree that it is difficult to see any ambiguity in the language of the Code on its face. It is also difficult to understand from the original decision where the perceived ambiguity lies. However, the Associate-Chair sheds additional light on why he found “ambiguity” at paragraph 37 of the reconsideration decision which reads as follows:

[37] The case was challenging because its facts raise a conflict of principles about when it is legitimate to restrict expression under the Code. The Code restricts harassing expression between colleagues to ensure a harassment-free workplace. It does not regulate the content of expression and comment in public debate, in part because such matters fall within the core of freedom of expression. A union’s role is to represent employees in a sometimes adversarial relationship with management; debate and criticism and public statements may be essential to its function. Union expression has many similarities to public debates such as expression by the media, politicians, academics and public interest organizations. At the same time, its leaders are often co-workers of the managers in the workplace and interact on a day-to-day basis in their jobs. Depending on one’s perspective, union expression can be seen as similar to matters to which the Code does not apply, or at the heart of what the Code is meant to govern. [Emphasis added]

[36] Paragraphs 38 to 42 of the reconsideration decision offer further explanation for the original conclusion that the stark and extreme perspectives of the two sides are at the core of what the Tribunal characterized as “ambiguity”. Those paragraphs read as follows:

[38] The parties’ views of this case, not surprisingly, reflected these alternate perspectives. For the applicant, this case should be treated no differently from any other case of workplace harassment on the basis of sex. What was key for her was the applicant’s position as a woman in the workplace, in this case a traditionally male-dominated one that had been the subject of Code-based conflict, and the need for employment to be free of any kind of sexism. That the expression was in the course of union-management relations, in her view, should not matter, as the effect on the employee was the same. The Code’s effect, she suggested, should be to free the workplace and employment relations, including union-management interactions and criticism of managers, from statements linked to prohibited grounds.

[39] For the respondents, the fact that this was union expression was key, and to interpret these communications as being within the ambit of what the Code governs would be to bring the Code into areas not intended. The respondents saw the primary vulnerability here as being that of front-line employees in relation to managers, with managers holding the power in the workplace. The union, in their view, must be able to freely criticize the employer and the managers, who hold the power in the workplace, without fear that a human rights tribunal would later dissect the manner in which their views were expressed. They were also concerned about opening up the floodgates to this type of claim by individual managers against the union, fearing that it may have a chilling effect on what union representatives do.

[40] While the parties invited me to a make a stark choice, the Decision attempted to steer a more nuanced path in interpreting ss. 5(1) and 5(2) of the Code in these particular circumstances. It recognized the importance of both the concerns about a workplace free from Code-based stereotyping by co-workers, and of free expression by unions as the representative of workers who are vulnerable in their relations with management. It set out a case-by-case approach to determining such issues, analyzing all of the circumstances in order to determine on which side of the line between public expression and workplace interaction between co-workers such situations should be seen to fall. Among the factors were the seriousness of the conduct, its 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 (para. 27 [of the original decision]).

[41] Although I found it a difficult decision, in the end I concluded that the facts in this case tipped in favour of the public expressive nature of the comments. Central to the tipping of the balance in favour of this union expression were:

(1)The connection of the comments to a matter of union concern, made during bargaining, and made on a blog focused on union-management relationships, by the President of the union local.

(2)The impact of the comments on the applicant was her concern they had brought her personal life into the workplace, not the sexist stereotypes. As she described it, her concern and upset would have been the largely the same whether the point about her relationship with Mr. Gray was made using sexist language or not.

(3)The absence of any evidence of Code­-based effects in the workplace. The only impact described was people commenting on the fact they had read about her.

(4)The applicant was mentioned twice among voluminous numbers of posts that were accessible for a period of only about a month.

[42] In this particular context and based on the evidence I heard, I found that these posts did not violate s. 5(1) of the Code as discrimination with respect to employment by the respondents Dvorak and Ontario Public Service Employees Union. I found that they did not violate s. 5(2) of the Code because the union blog should not be considered to be “in the workplace”.

[37] Given the Tribunal’s own history of decisions, the meaning of the word “discrimination” under s. 5(1) of the Code is not genuinely ambiguous. The seminal question is whether the words “discrimination with respect to employment” become “ambiguous” when one takes into account who made the offending statements, in what capacity, in what context and with what effect within the workplace. In my view it was legitimate for the Tribunal to delve deeper than a simple consideration of the facts that Dvorak was an employee, that his comments were linked to the applicant’s employment and that his blog posts were widely circulated to other employees.

[38] It is important for the reviewing court to consider the Tribunal’s reasons in their totality rather than to parse the reasons. In paragraph 40 of the original decision, the Tribunal refers to the Charter rights of the respondents as “most important” to its conclusion that the blog posts fell outside the scope of s. 5(1) of the Code. When coupled with paragraph 30 of the original decision (quoted above) it is possible to construe the way the Tribunal framed the issue as a contest between competing rights in which the Charter rights of the respondents were seen to trump the rights that Ms. Taylor-Baptiste has under the Code. However, in looking at the reasons as a whole, particularly the explanation in the reconsideration decision, I find that the Charter rights of Dvorak and OPSEU are ultimately just a factor that was considered, amongst others, in deciding as a question of mixed fact and law in the particular circumstances of this case, whether the blog posts were within or outside of s. 5(1) of the Code. It is not insignificant that in the further reasons found in paragraphs 38 to 42 of the reconsideration decision (quoted above) there is no specific mention of the Charter. The emphasis is on other facts and circumstances that could have resulted in a decision either way. The Charter rights of the respondents may have ultimately tipped the scales, but the Tribunal’s analysis did not start with Charter rights; nor were the Charter rights of the respondent emphasized or elevated to the degree seen by the applicant or the Attorney General of Ontario.

[39] In the reconsideration decision, the Tribunal explains its resort to Charter values as a factor to consider in the context of “situating this case in the Code and the jurisprudence”. At paragraph 32 the Tribunal states:

The boundaries of what falls under the social areas of services, accommodation, … and employment are not always clear. An adjudicator must undertake an interpretation of the broad words in the Code to determine, in a contested case, whether this is the type of activity that it regulates. … The need for a large and liberal approach to the rights in the Code does not relieve those applying it from the difficult task of interpreting its boundaries.

[40] Although the case of Dore v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395, is distinguishable in some respects, it does stand for the broad principle that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise. In this case the scope of s. 5 of the Code is circumscribed by the words “with respect to employment”. The meaning of those words and the scope of s. 5 are at the core of the expertise of the Tribunal.

[41] In this case, the Tribunal does not purport to decide the parameters of s. 5 of the Code in the abstract. Instead, the Associate-Chair carefully recites the factors and the evidence both pro and con in this particular case. See paragraphs 33 to 42 of the original decision which read as follows:

[33] What is of concern about the comments is the use of sexist language to convey the point about nepotism. Mr. Dvorak drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” through suggesting that her qualification for the job was “intimate knowledge of another deputy”. This was not merely a comment about nepotism, but about the sexual relationship between her and her spouse, suggesting that she had obtained her position through sex. Similarly, the comment, “if you don’t know the answers to something this simple Ms. Baptiste maybe you should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent “boyfriends”.

[34] The posting of the comment from the anonymous poster that Mr. (sic) Taylor-Baptiste was “besmirching the good union name” of her former spouse also raises issues of sexism. It may be read as suggesting that, because she married and took the name of Mr. Taylor-Baptiste, she is expected to adopt his values, including those of support for trade unionism, or disassociate herself from them by changing her name. 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.

[35] I accept the applicant’s point that Mr. Dvorak was an active participant on behalf of the union in a process of restoration of a workplace that had been poisoned through racist hate mail and other events, and that these circumstances weigh in favour of the seriousness of the comments. Also of concern is the fact that when the offensive nature of the blog was pointed out to him by management, together with the fact that it may constitute discrimination or harassment contrary to the employer’s policy, Mr. Dvorak responded by belittling the concerns, attacking management, and suggesting that his actions were justified because of alleged mistreatment of the union and its membership by the employer. Although no one flagged this particular post, he failed to consider or address at that time the ways in which his posts could violate the Code or hurt individuals.

[36] In terms of the frequency of events, the applicant was mentioned only once in a blog posting by the individual respondent, and once in a reply to it. The entry was publicly accessible for approximately a month, which makes it more serious than a comment on one occasion. However, I also note that given the volume of commentary, which was frequent during this time, these posts quickly became less prominent as other issues were raised.

[37] On the other hand, these were comments made by a local union president on a union blog, explicitly in the context of this role rather than his role as a fellow employee. They dealt with union-management relations. The applicant is a manager, who has the power in the workplace that comes with that role. Viewed objectively, the posts expressed to the union members Mr. Dvorak’s and the anonymous poster’s opinions on how the applicant had handled the work refusal by union members, her dealing with the health and safety issues raised, and the process for filling management positions. I accept Mr. Dvorak’s evidence that he had genuine concerns about nepotism and this was what motivated this comment. Whether or not these underlying concerns had any merit and despite the sexist stereotypes used to express them, they fundamentally relate to the union’s and Mr. Dvorak’s role as representative of the members of the bargaining unit in their relationship with the employer. They were directed at the union membership and related to the union-management relationship. They are, in my view, analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.

[38] The applicant did not provide evidence of any comments or other actions in the workplace that resulted from the fact that sexist language was used. She explained that she was extremely distressed by the bringing of her personal life into the workplace and felt that people would think she had slept her way to her job. The principal effects on her as expressed in her testimony, however, were about the bringing of her personal life into the workplace, not the sexist nature of those comments.

[39] In terms of actions by others, the applicant emphasized only that various people mentioned to her that they had read about her on the blog, and that when she went to a training session, she felt that many people looked at her when she stated her name because they had read about her on the blog. These effects would have been the case whether the points about nepotism and alleged incompetence were made in the sexist way they were or in a way that did not raise Code factors. Strong criticism from the union is often inherent in being a manager in a tense unionized workplace. These are significant factors weighing against a finding that Mr. Dvorak’s actions in communicating with union members violated the applicant’s rights.

[40] Considering all these circumstances, I conclude that Mr. Dvorak did not discriminate against the applicant with respect to employment. His postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business. There were no Code-based reverberations in the workplace and the applicant’s principal concern was about the bringing of her personal life into the workplace. The applicant, as a manager, is a person with relative power in the workplace relationship with employees. Most important, 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. Taking all this into account, I find that the respondents did not discriminate against the applicant with respect to employment.

[41] Of course, this conclusion does not mean that I have found that the blog posts in question were acceptable, nor does it negate the hurt they caused Ms. Taylor-Baptiste. On the contrary, the wording of these posts was inappropriate and, in my view, harmful to good labour relations.

[42] I also emphasize that this decision is not intended to preclude arguments that blog posts in other contexts could fall under s. 5(1), or that expressions of union opinion could constitute discrimination in other circumstances. Most significant to my decision in this case are that the postings were tied to communication to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.

[42] In paragraph 28 of the original decision the Tribunal pinpoints the Code’s objective as protecting Ms. Taylor-Baptiste from a poisoned work environment, but its analysis begins with the observation that Dvorak and the union cannot be viewed from the same perspective as an employer. Employers have duties to their employees under the Code. I agree with the statement in paragraph 29 of the original decision that “an analysis of the nature of the expression at issue which was made by Mr. Dvorak in the course of his duties as a local union president” necessitated consideration of the fact that “his comments on management are protected” by s. 2(b) and (d) of the Charter.

[43] The broader consideration the Tribunal engaged in in this case could include the Charter rights of Dvorak and OPSEU as a factor to take into account in determining whether or not there was “discrimination with respect to employment” within the meaning of the Code.

[44] The Tribunal did not expressly consider Ms. Taylor-Baptiste’s s. 15 Charter rights in its analysis, nor did it expressly consider whether the Code imposed a reasonable limit on the Charter rights of Dvorak and OPSEU. The fact that the Tribunal did not address these points reinforces my view that the Tribunal did not actually frame the issue as a case of competing Charter rights when the two decisions are read as a whole.

Conclusion

[45] For the reasons noted, the original decision confirmed by the reconsideration decision is reasonable. The applicant has also failed to establish any breach of procedural fairness. The application is therefore dismissed.

[46] If counsel are unable to agree on costs, brief written submissions shall be exchanged and filed within the next 30 days.

Aston J.

Kiteley J.

Whitaker J.

Released: May 28, 2014

CITATION: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169

DIVISIONAL COURT FILE NO.: 192/13 JR

DATE: 20140528

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Aston & Whitaker JJ.

BETWEEN:

Mariann Taylor-Baptiste

Applicant

– and –

Ontario Public Service Employees Union, Jeff Dvorak and Human Rights Tribunal of Ontario

Respondents

– and –

Attorney General of Ontario, Ontario Human Rights Commission and Canadian Civil Liberties Association

Intervenors

REASONS FOR JUDGMENT

Aston J.

Released: May 28, 2014