A recent decision of the Ontario Court of Appeal has interesting implications when it comes to competing rights, particularly when some of those rights are protected by the Charter of Rights and Freedoms.
In Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, the appellant was a manager at a Toronto jail. The individual respondent was a jail employee who had reported to the appellant and was also president of the jail’s union local. The union was also named a respondent.
The relevant events occurred during a period of collective bargaining in 2009. The individual respondent had operated a blog about union matters on which he authored a post that was sexist and demeaning of the appellant. Among other things, the offending blog post suggested that the appellant should call her boyfriend for help and that she only received her job because of nepotism. The individual respondent also approved a blog post by another individual that was similarly offensive and sexist towards the appellant.
After learning of these blog posts and filing workplace complaints that did not lead to discipline of the individual respondent, the appellant proceeded to file an application with the Human Rights Tribunal of Ontario, alleging discrimination with respect to employment and harassment in the workplace under sections 5(1) and 5(2) of the Ontario Human Rights Code.
At the Tribunal, it was readily found that the offending blog posts were offensive and sexist. However, the appellant’s application was dismissed based on the Tribunal’s finding that the blog posts did not constitute discrimination “with respect to employment” or harassment “in the workplace” as required to contravene the relevant sections of the Human Rights Code.
The Ontario Court of Appeal agreed, upholding the Tribunal’s dismissal of the appellant’s application. Of most significance is that the Court of Appeal approved of the Tribunal’s consideration of the individual respondent’sCharter rights to freedom of expression and freedom of association in interpreting the scope of the meaning of “with respect to employment” and “in the workplace” under the Human Rights Code.
Specifically, the Tribunal took the view that the individual respondent’s comments were made within the context of his union activities and were therefore constitutionally protected pursuant to his Charter rights to freedom of expression and freedom of association. Therefore, while the individual respondent’s blogging was clearly sexist, it did not have a significant impact in the workplace itself and, in balance with his Charter rights, did not constitute discrimination “with respect to employment” or harassment “in the workplace.”
The Court of Appeal’s decision is impactful for two reasons. First, it represents appellate authorization to carry out a balancing of competing rights, a delicate exercise that will no doubt continue to evolve at the Tribunal level. As with this case, such a balancing act can lead to the defeat of what otherwise appears to be a valid human rights complaint.
Second, the decision provides an interesting perspective on the often challenging intersection between employment and outside activities. That being said, this decision relates only to the application of the Human Rights Code, and has no impact on an employer’s right to discipline an employee for conduct outside of the workplace, something that received significant media attention earlier this year with the dismissal of a Hydro-One employee who publically made sexist remarks. To this end, it is noteworthy that the Tribunal commented on the fact that the conduct of the employer in this case - including whether its failure to discipline the individual respondent constituted a breach of its obligations to the appellant - was not a matter before it as the appellant chose not to name her employer as a respondent.