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
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
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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