Law Times

Law Times • OcTOber 3, 2016 Page 7 www.lawtimesnews.com COMMENT Employer liable for Twitter misuse BY NIKOLAY CHSHERBININ T witter is a public social media platform that allows people to create content and share it at a prodigious rate. Its users' comments, known as tweets, are particularly effective in spreading their sentiments. Increasingly, companies mine Twitter for information about their services and products. Employers and unions mine it, too, al- beit for different reasons. A case in point is Toronto Transit Commission and ATU, Local 113, [2016] OLAA No. 267, where arbitrator Howe found the TTC liable for failing to protect its employees from harassment and discrimination on Twitter. This novel decision augments employers' duty to take reasonable steps to protect its employees form cyber-harassment. In TTC, the union filed a grievance challenging the TTC's use of its Twitter account, publicly known as @TTChelps. It asserted that the TTC's conduct is contrary to its obligation to provide a workplace that is safe and free of harassment. In support, the union produced tweets, which were critical of the manner in which TTC employees perform their duties and contained derogatory, offensive, abusive, racist, homophobic, sexist and/ or threatening language. It suggested that the TTC allowed @TTChelps to become a vehicle of harassment and asked the arbitrator to terminate it. In response, the TTC argued that its employees do not have the right to be free from public complaints, because they provide a public service that is partially paid for by tax dollars. Consequently, they should be accountable to the public and it is anti-democratic to suggest that the public does not have the right to complain about the TTC's employees. The union retorted that it is inappropriate for the TTC to be taking complaints about employees through @TTChelps or discussing what are, in essence, private matters on Twitter. By doing so, the TTC is using Twitter as a surrogated public complaint process, thereby circumventing the public complaint process bargained for by the parties. Further, the union successfully argued that whenever the TTC uses Twitter for public communication about the conduct of employees in the workplace, that sphere becomes part of the workplace, which in turn triggers the TTC's obligation to control it. Sections 5(1) and 5(2) of the Ontario Human Rights Code give every person a right to freedom from discrimination with respect to employment and harassment in the workplace, because of race, ancestry, place of origin, colour, ethnic origin and, among others, sexual orientation. Adju- dicators and the courts have held that an employer is liable not only for its own acts but also those of its customers, agents, visi- tors, guests and employees. While it is not possible for an employer to prevent all in- appropriate behaviour, it does have control over how it responds to discriminatory or harassing conduct in the workplace, re- gardless of how it occurred. A number of tweets that the union presented called a TTC employee offensive terms that referred to sexual orientation and race. Having found that the TTC's responses to offensive tweets were inadequate, the arbitrator suggested that to deter people from sending such tweets the TTC should not only have indicated that it does not condone abusive, profane, derogatory or offensive comments but should have requested the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. Ultimately, the arbitrator found that the "TTC has failed to take all reasonable and practical measures to protect" its employees from harassment by members of the public, as required by the Code. In an attempt to have @TTChelps ter- minated, the union argued that the priva- cy of TTC employees is invaded by tweets disclosing where they work, their em- ployee numbers and details of complaints about their conduct. Having refused to shut down the TTC's Twitter account, the arbitrator explained that a TTC employ- ee's badge number is not private informa- tion, nor is the bus number that a TTC employee is driving or the route number on which it is being driven, because in the context of an employee who works in public providing a public service, there is no reasonable expectation of privacy regarding that information. Eliminating @TTChelps would not preclude informa- tion of that type from being posted on so- cial media. The arbitrator also pointed out that @TTChelps permits the TTC to provide useful information to customers. However, he cautioned that care needs to be taken to ensure that the information provided on @TTChelps is accurate and does not include inappropriate editorializing. The arbitrator ordered the TTC to refine its social media policy, which should include templated responses to tweets, a statement that the TTC does not condone abusive, profane, derogatory or offensive comments and, among others, demand that the tweeters immediately delete the offensive tweets or they will be blocked. TTC further expands the notion of workplace into cyberspace and affirms that employers have duties and obligations regarding their use of social media, just as employees do. While TTC was decided in a unionized context, its conclusions are applicable to non-unionized workplaces. Prudent employers who use Twitter should have social media policy, which should include the arbitrator's suggestions, contain an obligation for an employee to report cyber-harassment forthwith and spells out a manner on how to deal with harassing and discriminatory tweets toward their employees. LT u Nikolay Chsherbinin is an employment and immigration lawyer and author of The Law of Inducement in Canadian Employ- ment Law. He can be reached at 416-907- 2587 or by visiting nclaw.ca. Embrace reconciliation in practice BY BOB RAE P rime Minister Justin Trudeau has promised a "new relationship" with the indigenous people of Canada. Of all his pledges, perhaps the most important and compelling was the commit - ment to implement in full the 94 recommendations of the Truth and Reconciliation Commission led by now-Sen- ator Murray Sinclair. It is now time for both the federal and provincial govern- ments to embrace the journey of reconciliation in practice as well as in rhetoric. The willingness to make symbolic ges- tures should not be dismissed, but it needs to be matched by a political will to change both the law and policy. The commission firmly placed the residential school disaster in its historic context. The same governments that implemented the ruthless policy of forcibly taking chil - dren away from their parents and placing them in insti- tutions whose purpose was to destroy their language and culture and force assimilation introduced other policies as well, notably the Indian Act and treaties whose written texts insisted on indigenous party signing declarations of cessation and surrender of land. The current legal and policy landscape is still domin - ated by the legacy of this evil trinity of our Victorian past: dividing and conquering through the Indian Act, destroy- ing culture and language through residential schools and clearing the land through colonial treaty implementation. The commission has made an emphatic proposal that Canada's policy future needs to ref lect a completely differ - ent approach, one that fully respects the consequences of continuous indigenous presence on the lands of Canada since time immemorial, and the fact that Canada was not "discovered," that there were people here when Europeans first arrived and that indigenous people had their own lan - guages, culture, laws, institutions and ways of life that are still present today despite best efforts to destroy them. A genocide was attempted, but it did not work. Governments actually agreed to address these issues in the Charlottetown Accord when they agreed to put the inherent right of self-government into the Constitution with an agenda for implementation. When the Accord went down to defeat in most provinces, the commitment to self-government was forgotten. Some progress has been made in modern land claims and new treaties, but it has been pretty glacial. In policy terms, the federal government continues to insist that money transfers must ref lect past spending patterns and that all claims to legal title must be abandoned and surrendered. We are also faced with the terrible irony that those jurisdictions without the old treaties have made more progress in self-government than Ontario, Manitoba, Sas - katchewan, Alberta and British Columbia, where most in- digenous people live. The recent Supreme Court decision on Treaty 3 makes it clear that the obligations of the Crown apply to both the federal and provincial governments. When one considers the ongoing controversies around mining, pipelines and resource development, it is appar - ent that the doctrines of surrender and exclusive Crown sovereignty are rejected by indigenous people, and that they are asking for new understandings and arrangements that ref lect their teachings and values that the land must be shared and that life in the air, the land and the water must be respected. Specifically, it is time for the federal and provincial gov - ernments to abandon their insistence on legal surrender and to accept that sovereignty on traditional territories will be shared. At the same time, all governments, including in- digenous governments, need to come to terms with the fact that Indian Act bands are, for the most part, too small to be able to carry out the work of government on their own. Regional and treaty-wide institutions need to be strength - ened in order for self-government to be real. It is also essential that the fiscal framework of the past be abandoned. The decision of the Canadian Human Rights Tribunal in First Nations Child and Family Caring Society of Canada has implications for hous- ing, health, education and all social services. It means that "separate and unequal" has to go, and that funding for these essential services has to match the principles of equalization that are set out in the Constitution to ensure equal provision for Canadian citizens living in different provinces. It is ludicrous to create a third order of govern - ment and then insist that the moneys and revenues f low- ing to those governments should still be controlled and determined by Ottawa and the provinces. It is also illegal. These are the next essential steps. They will force change in Ottawa and in every provincial capital. They will be ex - pensive, for the simple reason that the enforced poverty and discrimination that has been such a part of the indigenous experience in this country have cost lives and are now a na- tional shame and an international embarrassment. These changes will also require that all Canadians join the jour- ney in their hearts and minds as well, as the Truth and Rec- onciliation commissioners insisted in their report. Stephen Harper once remarked that Canada's inter- national credibility was enhanced by the fact that we had no imperial baggage. The truth is that our international credibility is undermined by our unwillingness to admit to our colonial past and present. Canadian governments, today, are the inheritors of structures of domination and discrimination that were intended to destroy indigenous people and their institutions. That indigenous peoples and cultures have survived is a deep tribute to their resilience. The central issue for our time is our willingness to come to grips with this past and to make sure the present and fu - ture are different, and to ensure that this vision of a thriv- ing future is based on a deep and lasting partnership. LT uBob Rae was the Premier of Ontario from 1990 to 1995 and currently is a senior partner at Olthuis Kleer Town- shend LLP. He works with First Nations across Canada as legal counsel, advisor, negotiator and arbitrator. u SPEAKER'S CORNER Labour Pains Nikolay Chsherbinin

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