Posting Offensive Blog Posts as a Union President: Protected by the Charter?25-Jan-17
Bill Gates once said: “the Internet is becoming the town square for the global village of tomorrow”. If Gates was right, how might courts treat offensive blog posts made by a co-worker in the town square of the Internet?
Taylor-Baptiste v. Ontario Public Service Employees Union ("Taylor-Baptiste"), is an important case from Ontario that touches on questions of human rights, the scope of a tribunal’s exploration of the Canadian Charter of Rights and Freedoms (“Charter”), and whether posting work related issues on a blog might be considered to occur “in the workplace”.
In Taylor-Baptiste, Jeff Dvorak and Mariann Taylor-Baptiste both worked at the Toronto jail where Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the jail’s local branch of the Ontario Public Service Employees Union (“OPSEU”). In 2009, during a period of labour unrest and collective bargaining, Mr. Dvorak operated a blog to communicate with the Local 530 membership. Mr. Dvorak was often quite hostile on the blog, which the Court noted was to be expected given the hostility of the labour unrest.
Mr. Dvorak’s blog posts reached the next level, however, when he wrote one blog entry, and approved another, that was discriminatory and offensive, belittling Ms. Taylor-Baptiste on the basis of her sex and marital status. Ms. Taylor-Baptiste viewed the blog posts as insinuating she had obtained her position through a previous romantic relationship, thus violating the Human Rights Code ("Code") as harassment in the workplace (section 5(2)) and discrimination with respect to employment (section 5(1)).
The Ontario Human Rights Tribunal dismissed her argument, finding that harassment did not occur “in the workplace”. The Tribunal also held that as Mr. Dvorak made the comments in the course of his duties as union president, his comments were protected by s. 2(b) and 2(d) of the Charter.
The Ontario Court of Appeal upheld the Tribunal’s ruling. Following a prior decision of the Supreme Court of Canada, the Court of Appeal held that administrative decision makers must act consistently with the values of the Charter on issues of discretion. Although the Tribunal and the Court of Appeal both affirmed that the comments approved by Mr. Dvorak were uncouth, the posts were protected by the Charter’s right to freedom of speech and freedom of association.
The Court of Appeal’s decision is thus of great significance to employers and to those in union capacities. However, it is important to note that on different facts, the right to discriminatory blog posts may not have been upheld. Justice Brown stated, “…analysis was confined to the facts…and that the result might be different in another case”. No “blanket exemption” protecting all forms of union speech from the requirements of the Code was created by this case. Nor does this case comment on whether Mr. Dvorak could have been subject to termination by the employer. Guidance from skilled legal counsel is therefore critical to navigating the complex work of the law in the “global village of tomorrow”.