As many employers may have
experienced during labour unrest and collective bargaining
negotiations, tensions between management and union representatives
can rise to heated levels. Even in the face of difficult
negotiations, and in light of the dismissal of the employee from
Hydro One for his sexist remarks in May of this year, most
people involved in labour disputes are cautious in what they choose
to say or write publicly. No such caution was exercised in the case
of Taylor-Baptiste v Ontario Public Service Employees
Union where the President of the Local Union representing
employees at a Toronto jail, Jeff Dvorak, criticized the manager,
Mariann Taylor-Baptiste, in public blog posts.
In 2009 Mr. Dvorak began to operate
a blog to communicate with local union membership about the status
of the negotiations that were ongoing. Mr. Dvorak rightfully
communicated to his membership, but on at least two occasions
failed to censor his personal frustration with the negotiating
process. Two blog posts were made that attacked Ms. Taylor-Baptiste
on the basis that she only got her job because of her personal
relationships and insinuated that she was incompetent at her
position compared to her male counterparts.
Ms. Taylor-Baptiste was upset by
the blog posts and filed a complaint with the Human Rights Tribunal
on the basis that she was discriminated in the workplace
within the meaning of s.5(1) of
the Human Rights Code on the basis of marital status and sex.
The Tribunal considered the blog posts and despite finding them to
be distasteful the Tribunal decided that there was no
discrimination under s.5(1) because the comments were protected
under the Charter
rights of freedom of expression and freedom of association. The
Tribunal dismissed the claim for two reasons:
There was no discrimination
because of an absence of Code related effects in the
The communication was tied to
speaking to union membership on issues of labour-management
relations which was protected by the Charter.
After the Divisional Court
dismissed Ms. Taylor-Baptiste's first appeal by finding the
decision of the Tribunal was reasonable, the Court of Appeal
reaffirmed that administrative decision makers, including the Human
Rights Tribunal, are required to consider Charter values
when making decisions within their scope of expertise. The main
issue in this case was whether the blog posts were sufficient to be
within the meaning of s.5(1)'s language prohibiting
discrimination with respect to employment. This analysis required
balancing statutory objectives with Charter values. The
Human Rights Code's intent is to protect employees
from a poisoned work environment. The Tribunal and the Court found
that Ms. Taylor-Baptiste was not negatively affected on a
Code ground and that Mr. Dvorak's speech was protected
under freedom of expression and freedom of association because of
his role as union president.
Employers should take note that
going forward, communications made by union leadership to
membership will be assessed in light of the Charter values
of freedom of expression and freedom of association. As a result
there is a possibility that some union leadership may view this
case as a blanket exemption protecting all forms of union
communication from the requirements and limits established by the
Code in s.5(1). However, the Court of Appeal did state
that there was to be no blanket exemption on the basis of the
Charter for union communication and that this case was
determined because of the specific facts limiting the
discrimination claim combined with Charter values.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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