Law Times

Law Times • June 9, 2014 Page 3 www.lawtimesnews.com Concern about 'human-rights free zone' for unions rejected in discrimination case By yamri Taddese Law Times n a decision that raised the spectre of a "human-rights free zone" for unions, the Division- al Court has upheld a finding that a union local president's blog post containing sexist lan- guage in reference to a manager at a Toronto jail didn't constitute workplace discrimination. The manager, Mariann Tay- lor-Baptiste, went to the Human Rights Tribunal of Ontario alleg- ing discrimination based on sex and marital status after the presi- dent of a union local wrote about her failure to handle complaints in an online post that included sexual stereotypes. "First of all if you don't know the answers to something this simple, Ms. Baptiste, maybe you should call your boyfriend over at his office after all he is the only reason you got the job," the Ontario Public Service Employ- ees Union's Jeff Dvorak wrote in 2009. An anonymous comment on the post, approved and post- ed by Dvorak, suggested Taylor- Baptiste should use her maiden name in order to avoid ruining the "good union name" of her ex-husband. Although the statements drew upon sexual stereotypes, the tribunal found they didn't constitute discrimination with respect to employment. In reach- ing its conclusion, it relied largely on the union's rights of freedom of expression and freedom of association under the Charter of Rights and Freedoms. Taylor- Baptiste, however, challenged the findings in arguing the Ontario Human Rights Code doesn't ac- cept those values as defences to workplace discrimination. According to the tribunal, Dvorak's "postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business." In a May 28 ruling on a ju- dicial review application, the Divisional Court affirmed the tribunal's findings. "I accept Mr. Dvorak's evi- dence that he had genuine con- cerns about nepotism and this was what motivated this com- ment," wrote Justice David Aston of the Divisional Court. "Whether or not these underlying concerns had any merit and despite the sexist stereotypes used to express them, they fundamentally relate to the union's and Mr. Dvorak's role as representative of the mem- bers of the bargaining unit in their relationship with the employer." The Ontario attorney gener- al, an intervener in the case, said the tribunal's findings create "a human rights-free zone" for unions, an argument the court rejected. "In my view, that is an exaggeration," wrote Aston. But Ranjan Agarwal, one of Taylor-Baptiste's lawyers, says once there was finding that she was a victim of sexist language in the workplace, prima facie discrimination should have been established. "What was problematic for Ms. Taylor-Baptiste is that she has certain rights under the Hu- man Rights Code to be free from discrimination in the workplace and with respect to employment, but the decision by the tribunal seemed to give her no remedy," he says. "The tribunal found in its reasons that she was a victim of sexist language in the work- place but decided that the union's freedom of speech, which is not protected by the Ontario Hu- man Rights Code, trumped or overrode that freedom from dis- crimination." Agarwal says the courts should turn to the Char- ter only when the language used in the Human Rights Code is confusing. And in this case, it wasn't, he says. The Ontario leg- islature has never provided for a de- fence of freedom of expression or associ- ation in the Human Rights Code against workplace discrimi- nation unlike, for example, Saskatch- ewan, where the legislation indicates freedom of expres- sion has some role to play in deciding whether there's discriminatory conduct, Agar- wal notes. "What confuses me about the tribunal's decision, and ultimately the Divisional Court's decision, is that if the legislature didn't think there was a defence of freedom of expression, why did the tribunal think there is? Why did the Divisional Court think there is?" But the Cana- dian Civil Liber- ties Association, an intervener in the case, took a different stand and argued Charter values are relevant. There was also a concern about the assertion that the tribunal's findings create unique laws for unions, says Cara Zwibel, who repre- sented the CCLA in the case. "I don't think that was a fair reading of what the tribunal did in this case," says Zwibel. "The tribunal was very clear that they looked at a number of different factors in this particu- lar case and decided that in this particular case, there was no dis- crimination or harassment in the workplace or discrimination with respect to employment." The tribunal's ruling doesn't mean unions' right to free speech always trumps discrimination concerns, according to Zwibel. The CCLA encouraged the court to consider all of the facts, includ- ing the fact that the comments arose at a time of extreme tension between workers and the em- ployer and that Taylor-Baptiste is a manager at the jail, Zwibel notes. In its ruling, the Divisional Court said the union's Charter rights were "ultimately just a fac- tor that was considered, amongst others, in deciding as a question of mixed fact and law in the par- ticular circumstances of this case, whether the blog posts were with- in or outside of s. 5(1) of the code." The deadline to appeal the Di- visional Court's decision is this week, according to Agarwal. At press time, Taylor-Baptiste was still mulling over the option of pursing an appeal. LT NEWS Innovatio_LT_June2_14.indd 1 14-05-29 1:04 PM I The tribunal found the union's right to free speech trumped the manager's right to freedom from discrimina- tion, says Ranjan Agarwal.

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