Employees communicate using a range of social media platforms and adjudicators have consistently ruled that such communications can be viewed as an extension of the workplace. Improper communication on social media platforms can therefore be considered a form of workplace discrimination under human rights law, which may result in discipline or termination. However, in Taylor-Baptiste v Ontario Public Service Employees Union, a union official's sexist and offensive blog posts about his manager were found not to constitute discrimination under the Ontario Human Rights Code. Instead, the blog posts were protected by his free speech and freedom of association rights under the Canadian Charter of Rights and Freedoms.
The case involved Mariann Taylor-Baptiste and Jeff Dvorak, both of whom worked at the Toronto jail. Taylor-Baptiste was Dvorak's manager. Dvorak was president of the jail's union, a local branch of the Ontario Public Services Employees Union (OPSEU).
In early 2009 the jail and the OPSEU were involved in an intense round of collective bargaining. During this time, Dvorak operated a blog about workplace issues. The blog was publicly available and widely read. Blog posts by Dvorak and others strongly criticised the employer and individual managers. Many posts used strong language and some used profanity.
The case focused on two blogs:
- one written by Dvorak; and
- one written by another Toronto jail employee, but approved by Dvorak.
The posts accused Taylor-Baptiste of nepotism and incompetence. They stated that she had been hired only because of her common law spouse, who worked for the Toronto West Detention Centre.
Taylor-Baptiste complained to the Ontario Human Rights Tribunal, alleging:
- discrimination with respect to employment contrary to Section 5(1) of the Ontario Human Rights Code; and
- harassment in the workplace contrary to Section 5(2) of the code.
More specifically, Taylor-Baptiste alleged that the two posts belittled her on the basis of gender and marital status because they relied on stereotypical views about women obtaining positions of power through sexual orientation.
The tribunal concluded that, although the blog posts were sexist and offensive, the claim for discrimination with respect to employment could not succeed. The tribunal also found that the harassment had not occurred in the workplace. The tribunal stated that the wording with respect to employment was ambiguous, thus necessitating a balancing of Dvorak's Canadian Charter of Rights and Freedoms rights against Taylor-Baptiste's right to be free from discrimination in accordance with the Ontario Human Rights Code.
The tribunal concluded that Dvorak had written or authorised the posts "in the course of his duties as a… union president". His comments therefore enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by Sub-sections 2(b) and (d) of the charter.
Taylor-Baptiste appealed the tribunal's decision to the Ontario Divisional Court. The court unanimously dismissed the appeal on the basis that the tribunal's decision was reasonable.
Taylor-Baptiste appealed the court's decision to the Ontario Court of Appeal. She argued that the tribunal had erred in finding that the blog posts did not constitute discrimination with respect to employment under Section 5(1) of the code. The appeal was denied, as the Ontario Court of Appeal agreed with the Ontario Divisional Court that the tribunal's decision had been reasonable. In reaching this conclusion, the court reaffirmed that Section 2(b) of the charter protects a broad range of expressive activity, including 'distasteful' expression. The court found that, although the blog posts were distasteful, sexist and rude, they did not constitute hate speech. The court ultimately concluded that the posts constituted union comments on workplace issues and, therefore, were constitutionally protected expressions of opinion and a valid exercise of freedom of association.
Taylor-Baptiste sought to appeal the Ontario Court of Appeal's decision to the Supreme Court of Canada. However, the Supreme Court recently refused her application for leave to appeal.
The implications of these decisions are yet to be seen. The tribunal expressly stated that its analysis was confined to the facts before it and that the result might be different in another case. However, this decision could create a blanket exemption protecting all forms of union speech, including speech that is sexist or otherwise offensive on human rights grounds, from the requirements of Section 5 of the code.
For further information on this topic please contact Nicole Singh at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email ([email protected]). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.