In an earlier post (You Can’t Do That on the Internet) I canvassed what some Ontario Labour Relations Tribunals have done with respect to online conduct. In a July 2012 decision, Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII), the Human Rights Tribunal of Ontario weighed in on the issue.
Facts and The Issues
According to Adjudicator David A. Wright’s reasons for decision, the applicant, Ms. Mariann Taylor-Baptiste, was a manager at the Toronto Jail, part of the Ontario Ministry of Community Safety and Correctional Services. The respondents were the Ontario Public Service Employees Union (“OPSEU”), which represents employees at the Jail, and Jeff Dvorak, who at the relevant time was an employee and President of the Jail’s OPSEU local. Ms. Taylor-Baptiste alleged that the respondents discriminated against her through comments Mr. Dvorak posted on a blog directed at union members. The comments contained sexist stereotypes and identified her family status. The blog was generally open to the public, and Mr. Dvorak knew it was being read widely within the Jail.
The issue for resolution in the case was whether the blog posts violated the protections in s. 5 of the Ontario Human Rights Code, R.S.O. 1990, c H.19, against “discrimination with respect to employment” and “harassment in the workplace” on the grounds of marital status and/or sex.
The posts were mainly directed at Ms. Taylor-Baptiste’s competencies as a manager, and suggested that the only reason that she obtained her managerial position was because she had engaged in sexual relations to get there. The posts were blunter than I brief them.
As Adjudicator Wright observed, the case presented several interesting issues:
- in what circumstances are statements outside work hours, on line, “with respect to employment” or “in the workplace”? and;
- 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?
Decision
Adjudicator Wright’s decision turned on a reading of section 5 of the Ontario Human Rights Code, which provides that:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
As Adjudicator Wright observed, the case presented two challenging issues. First, the employer, who has an obligation to prevent employees from exposure to harassment, had not been added as a party. Accordingly, analysis as to whether or not the employer’s response to the situation was appropriate is absent from the decision. Second, the case required the Tribunal to balance the author of the blog’s Charter-protected rights of free expression and association to criticize his manager against Ms. Taylor-Baptiste’s rights to not be exposed to harassment.
In general, the Tribunal held that the comments were fair and protected by the Charter by virtue of the fact that this was an employee/union representative being critical of management’s decisions. However, what Adjudicator Wright did take issue with was the following:
[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”.
Adjudicator Wright continued, however, by holding that:
[37] 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.
…[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.
As Adjudicator Wright observed, unlike subsection 5(1), subsection 5(2) applies with respect to harassment “in the workplace.” The two sides disagreed whether the blog posts occurred “in the workplace.”
Ms. Taylor-Baptiste argued that the blog was an extension of the workplace, and that social media, including blogs, Facebook and Twitter are integrally woven into the fabric of the modern workplace. In support of her position she argued that, it is well-established that employees can be disciplined or dismissed for off-duty conduct where it impacts on the employer: Ontario Public Service Employees Union (Williams) v. Ontario (Community Safety and Correctional Services), 2011CanLII 83721 (ON GSB).
In resolving that the blog posts were not “made in the workplace” Adjudicator Wright held that:
[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.
[26] However, I agree with the respondents that in the circumstances of this case, the blog comments themselves were not harassment “in the workplace” under s. 5(2). They 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. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”. However, even giving them a broad interpretation, the words of s. 5(2) cannot apply to this blog, given the context.
Commentary
The case is interesting on one level for confirming that, under the Ontario Human Rights Code, an online post can be an extension of the workplace to which section 5 of the Code would apply.
The case is further interesting for attempting to balance between Charter and Code rights, both of which are of course of fundamental importance in the workplace.
It should be noted that the above analysis in no way concerned, unlike my earlier post, whether or not the writer of the blog should be terminated from his employment by virtue of his posts. Given the decision of the Tribunal, I suspect that any such termination would be unwarranted, but there was no analysis one way or another on the point.
Takeaways for those with Labour Pains
The case reinforces the advice that one must exercise prudence on the internet. While a pamphlet at a union meeting may be seen by some, a blog post (provided the blog is successful) may be seen by many more.
Updates
On February 1, 2013, Ms. Taylor-Baptiste's request for reconsideration was dismissed by Associate Chair David Wright: 2013 HRTO 180 (CanLII)
On May 28, 2014, Ms. Taylor-Baptiste's application for judicial review was dismissed by the Ontario Divisional Court: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169.
On July 3, 2015, Ms. Taylor-Baptiste's appeal to the Court of Appeal of Ontario was dismissed: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495
On June 9, 2016, Ms. Taylor-Baptiste's application for leave to appeal to the Supreme Court of Canada was dismissed: Mariann Taylor-Baptiste, et al. v. Ontario Public Service Employees Union, et al., 2016 CanLII 34004 (SCC).
Contact Me
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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