Law Times

Page 8 November 16, 2015 • Law Times www.lawtimesnews.com Taylor-Baptiste v. Ontario Public Service Employees Union Manager criticized online seeking to take her case to SCC BY MICHAEL McKIERNAN For Law Times nionized employees disciplined for so- cial media miscon- duct could mount a defence of free expression after the Court of Ap- peal for Ontario upheld a find- ing that a union boss' "sexist and offensive" blog post didn't vio- late the Ontario Human Rights Code, according to an Ottawa labour lawyer. The Human Rights Tribunal of Ontario ruled back in 2012 that a blog post by union lo- cal president Jeff Dvorak about manager Mariann Taylor-Bap- tiste and an associated com- ment by an anonymous poster had drawn on sexist stereotypes about women. However, the tri- bunal ruled they didn't breach the Human Rights Code be- cause they weren't discrimina- tory "with respect to employ- ment" as required by s. 5(1). In coming to that conclusion, the tribunal took into consider- ation Dvorak's right to freedom of expression and association under the Charter of Rights and Freedoms, something Taylor-Baptiste's counsel ar- gued it couldn't do. However, in Taylor-Baptiste v. Ontario Public Service Employees Union, the appeal court ruled the tribunal had acted reason- ably in doing so. Administra- tive tribunals, the three-judge panel concluded in the July 3 decision, are "empowered, and indeed required, to consider Charter values" when making decisions. Christopher Rootham, a partner in the employ- ment law group at Nelligan O'Brien Payne LLP, says an increasing number of em- ployers resort to discipline following off-duty conduct such as critical Facebook or Twitter posts but he suggests the Taylor-Baptiste decision could offer a new defence option for disciplined or dis- missed employees who belong to a union. "If the Court of Appeal is right that Charter values, in- cluding freedom of expression, are always at issue when dealing with administrative decision- making, then labour arbitra- tors may be obliged to consider them when considering cases of off-duty misconduct," says Roo- tham, a lawyer who regularly advises employees and trade unions as part of his practice. "I wonder, in the light of this decision, whether there is a new factor in play, which is balancing the employee's right to free ex- pression against the traditional interest of the employer in pro- tecting its reputation." The case dates back to early 2009 when Dvorak, an employ- ee and union leader at a Toronto jail, wrote a blog post about his manager, Taylor-Baptiste, dur- ing a period of collective bar- gaining negotiation and intense labour unrest. "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," wrote Dvorak in reference to Taylor-Baptiste's common law partner, a fellow manager at the facility. The comment by an anony- mous poster, approved by Dvor- ak before publication, suggested Taylor-Baptiste should "go back to her maiden name" in order to avoid besmirching the "good union name" of her ex-husband, a former union leader. In a complaint to the tribu- nal, Taylor-Baptiste accused Dvorak and the union of dis- criminating against her on the basis of sex and marital status. It dismissed her application in a decision that highlighted Dvorak and the union's rights to freedom of expression and as- sociation. "[Dvorak's] postings were made on issues of union-man- agement concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business," wrote adjudicator David Wright in the July 2012 decision. "The applicant, as a manager, is a person with relative power in the workplace relationship with employees. Most impor- tant, union comments on work- place issues are constitutionally protected expression of opinion and exercise of freedom of asso- ciation, and close to the core of those rights." In a judicial review applica- tion at the Divisional Court, Taylor-Baptiste argued Char- ter values should only come into play for an administrative tribunal when it encounters an ambiguity in its home statute. Even if the tribunal could take Charter values into account, Taylor-Baptiste argued the decision was un- reasonable in balancing them against the statutory objec- tives of the code. The Divisional Court and, subsequently, the ap- peal court ruled with Dvorak and the union. They con- cluded that the Supreme Court's decision in Doré v. Barreau du Québec requires administrative tribunals to consider Charter values in their decisions. In addition, the appeal court ruled the tribunal's balancing exercise was reasonable, finding that its "detailed, intelligible and transparent reasons" showed that it was "alive to the various interests at play in determining whether, as a question of mixed fact and law, the respondents' conduct fell within or without the reach of s. 5(1) of the Code." Cara Zwibel, director of the Fundamental Freedoms pro- gram at the Canadian Civil Lib- erties Association, appeared for the organization as an interven- er at the appeal court. She wel- comes the decision for cement- ing the Charter's place in ad- ministrative decision-making. "The Charter, as part of the Constitution, is the supreme law of the land, so we think that all laws and government action should be consistent with it. It should be operating in the back- ground of every decision," she says. But Taylor-Baptiste's lawyer, Ranjan Agarwal, says his client is pinning her hopes on an ap- peal to the Supreme Court of Canada after a string of defeats at the lower courts. "What I think has surprised me the most is that not one court or tribunal has had any real sympathy for the victim of what, in my view, is clear online bullying of a worker," says Agar- wal, a constitutional lawyer and partner at Bennett Jones LLP in Toronto. "At some point, for justice to be done, I think a court has to recognize that Ms. Taylor- Baptiste is not some nameless, faceless manager. Yes, she is a manager but she's about as far removed from the decision- making process at the bargain- ing table as anyone. She's paid a very high price, and I person- ally don't think she should have been made to bear the brunt of what happens during the fight between the union and manage- ment." LT 'What I think has surprised me the most is that not one court or tribunal has had any real sympathy for the victim of what, in my view, is clear online bullying of a worker,' says Ranjan Agarwal. FOCUS ON Labour & Employment Law U Yonge Richmond Centre 151 Yonge Street | Suite 1404 Toronto, ON M5C 2W7 416.865.0504 littler.com Your people and employment law challenges cross borders, times zones and cultures. And so do our solutions. We bring global thinking and experience to your workforce issues— wherever business takes you. We're global because you are. Untitled-1 1 2015-11-11 2:03 PM

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