The Ontario Court of Appeal has recently upheld a decision of the Ontario Human Rights Tribunal which discussed the interaction of the Canadian Charter of Rights and Freedoms (the “Charter”) and the Ontario Human Rights Code (the “Code”) with respect to discrimination in the employment context.

In the case of Taylor-Baptiste v. Ontario Public Service Employees Union, Ms. Taylor-Baptiste, an employee of the Toronto Jail, filed a complaint with the Human Rights Commission alleging discrimination under s.5(1) and s.5(2) of the Code following statements made in a blog operated by a fellow employee, Mr. Dvorak. The incident occurred during a period of labour unrest while parties were engaged in collective bargaining. Mr. Dvorak was the president of the jail’s local branch of the Ontario Public Services Union (“OPSEU”), and initiated the blog as a method to communicate with the local union members during the ongoing collective agreement negotiations. Ms. Taylor-Baptiste alleged that a blog entry, and a subsequent comment, belittled her on the basis of sex and marital status leading to the complaint with the Human Rights Commission.

The Tribunal determined that the postings on Mr. Dvorak’s blog did not amount to harassment “in the workplace” under s.5(2) of the Code because they were done for the purpose of communication between the union and its members, and were not made while at work. Although the Tribunal acknowledged that blog postings and other electronic media can form an extension of the workplace, it was not the case in these circumstances given the context of the postings.

In considering the complaint, under s.5(1), of discrimination “with respect to employment”, the Tribunal noted that the blog posts were made in the course of Mr. Dvorak’s duties as a union president, and as such, required a consideration of s.2 Charter protections, specifically freedom of expression and freedom of association. Accordingly, the Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review of the Tribunal’s decision citing deference to the Tribunal’s expertise, and concluding that it’s decision was reasonable.

Ms. Taylor-Baptiste appealed the dismissal of her judicial review application by the Divisional Court to the Ontario Court of Appeal. The appellants argued that the Tribunal improperly took into account Mr. Dvorak’s Charter rights in determining that the blogs posts did not infringe Ms. Taylor-Baptiste’s right to equal treatment with respect to employment. The Court of Appeal concluded that the Tribunal properly followed the jurisprudence, and came to a reasonable conclusion taking into account the various interests at play.

The implications of this decision from the Court of Appeal is unclear. The appellants argued that the Tribunal’s decision effectively creates a “blanket exemption” protecting all forms of union speech from the requirements of s.5 of the Code. Although this was rejected by the Court of Appeal, who emphasized the factual nature of the analysis, only time will tell.

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