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
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
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
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
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's Charter
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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