Court of Appeal Decision of the Week

Do Offensive Blog Posts Amount to Discrimination “With Respect to Employment”?

Case: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495

Keywords: administrative decision-maker, standard of review, freedom of expression, blog posts

Synopsis: The Appellant, Mariann Taylor-Baptiste, and the Respondent, Jeff Dvorak, both worked at the Toronto Jail. In late 2008 and early 2009, during a period of labour unrest and collective bargaining, Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the jail’s local branch of the Respondent union. Mr. Dvorak operated a blog about union matters on which he authored a blog post, and permitted the posting of a comment written by someone else, accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to the Human Rights Commission, alleging discrimination “with respect to employment” contrary to section 5(1) of the Ontario Human Rights Code (“Code”) and harassment “in the workplace” contrary to section 5(2) of the Code.

For reference, section 5(1) reads as follows:

“Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”

The Human Rights Tribunal found the comments in the blog posts were sexist and offensive, but held the posts were not conducted “with respect to employment” or “in the workplace.” The Tribunal ruled the scope of section 5(1) of the Code was ambiguous on the facts and had to be interpreted in a way that took into account Mr. Dvorak’s Charter rights of freedom of expression and association. The Tribunal ultimately concluded Mr. Dvorak did not discriminate against Ms. Taylor-Baptiste with respect to employment.

Ms. Taylor-Baptiste applied to the Ontario Divisional Court for judicial review of the Tribunal’s decision. The Divisional Court unanimously dismissed her application, holding the Tribunal’s decision to be reasonable. Ms. Taylor-Baptiste appealed to the Ontario Court of Appeal. She abandoned her claim regarding a breach of section 5(2) of the Code, but maintained the Tribunal erred in dismissing her section 5(1) claim. In particular, she argued the Tribunal erred by holding the words “with respect to employment” were ambiguous, thus necessitating a consideration of Charter values and a balancing of Mr. Dvorak’s free speech and associational rights against her Code right to be free from discrimination.

Writing for a unanimous Court of Appeal, Justice Brown held the Tribunal’s decision was reasonable and should not be interfered with. The appeal was dismissed.

Importance: The primary issue before the Court of Appeal was whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision – the blog posts did not infringe Ms. Taylor-Baptiste’s right to equal treatment “with respect to employment without discrimination” under section 5(1) of the Code. On an appeal from a decision disposing of an application for judicial review, the appellate court must decide whether the court below identified the appropriate standard of review and applied it correctly. The appellate court “steps into the shoes” of the lower court, with its focus on the administrative decision.

Before the Divisional Court, the parties agreed the standard of review on questions respecting the scope of section 5 of the Code was reasonableness, and the Divisional Court identified reasonableness as the applicable standard of review. As such, the Divisional Court followed the jurisprudence that under the reasonableness standard, the decisions of the Tribunal on determinations of fact and the interpretation and application of human rights law are entitled to the highest degree of deference having regard to the Tribunal’s expertise and specialization.

In his analysis, Justice Brown found the Divisional Court properly examined the Tribunal’s reasons as a whole. He also agreed with the Divisional Court’s finding that it was difficult to see ambiguity on the face of the language of section 5(1) of the Code. He held the issue the Tribunal faced more accurately should have been characterized as “deciding a question of mixed fact and law in the particular circumstances of this case.” This issue did not require the Tribunal to resolve an ambiguity in the statutory language, but rather to interpret and apply the Code to the specific circumstances of the case.

Justice Brown further agreed with the Divisional Court’s conclusion that the Tribunal was entitled to thoroughly examine the facts of the case in order to determine the key question of mixed fact and law. He made a point to highlight the parties’ agreement that any determination about whether conduct violates s. 5(1) of the Code requires an examination of all relevant facts.

The Court of Appeal agreed with the Divisional Court’s analysis regarding whether or not to consider the Respondents’ Charter rights. Justice Brown cited the Supreme Court’s decision in Doré v Barreau du Québec, 2012 SCC 12 regarding the reasonableness of a decision by the Disciplinary Council of the Barreau du Québec. The Appellants made two submissions in arguing the Tribunal acted unreasonably in taking Charter values into account in its analysis: (1) an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its enabling statute at issue in a case; and (2) the Charter values interpretive principle articulated in Doré only applies in instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy.

Justice Brown found the decision in Doré, when read as a whole, prevented the acceptance of these two submissions. First, in Doré the Supreme Court held that “administrative decisions are always required to consider fundamental values.” Second, the context which framed the court’s discussion in Doré was analogous to the present case, namely, the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory rule. Consequently, Justice Brown did not interpret the binding jurisprudence as permitting the Court of Appeal to interfere with the Tribunal’s decision simply because it considered Charter values in the course of determining whether the Respondents’ conduct violated section 5(1) of the Code.

The Appellants submitted, in the alternative, that if the Tribunal was entitled to take into account Charter values in deciding whether the Respondents’ conduct violated the Code, the Tribunal failed to strike a reasonable balance between Charter values and the statutory objectives of the Code. Justice Brown found that although the Divisional Court did not conduct this part of its judicial review in the precise sequence described in Doré, it performed the substantive equivalent. He held the Tribunal thoroughly considered the objective of section 5(1) of the Code and the evidence that related to that objective.

Justice Brown found the Tribunal properly identified freedom of expression and freedom of association enshrined in sections 2(b) and 2(d) of the Charter as the relevant Charter rights in the circumstances of this case. He found that section 2(b) protects a broad range of expressive activity, including “distasteful” expression. According to Justice Brown, the Tribunal understood the legal principles, stating “the nature of the expression is a factor in the balancing of rights.” Although the Tribunal held the blog postings contained rude, distasteful, and sexist remarks – they found the postings did not amount to hate speech.

Justice Brown noted the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under section 2(d) of the Charter. Such expressive activity can play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker.

In the Charter portions of the Tribunal’s decision, Justice Brown found the Tribunal explained, in a transparent and intelligible way, how the Charter rights it was selecting arose on the specific facts of the case. The two Charter rights it selected were logically related to the facts of the case, thereby satisfying the requirements of Doré that the administrative tribunal select relevant Charter values.

Regarding whether the Tribunal’s balancing of the Charter rights with the objectives of the Code was proper in the circumstances, Justice Brown quoted the Supreme Court’s decision in Dunsmuir v New Brunswick, 2008 SCC 9:

[C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

Justice Brown found the Tribunal gave detailed, intelligible and transparent reasons for its decision that the Respondents’ conduct did not constitute discrimination “with respect to employment.” The Court of Appeal held the Tribunal engaged in a proportionate balancing of the statutory objective of section 5(1) of the Code with the Charter rights of expressive and associational freedom engaged by the specific facts of this case.

The Tribunal’s reasons disclosed 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 section 5(1) of the Code. In light of the deference that the prevailing, binding reasonableness standard of review accords to the Tribunal’s findings of fact and determinations of questions of mixed fact and law, Justice Brown could not conclude the Tribunal’s conclusion fell outside the range of possible, acceptable outcomes defensible in respect of the facts and law. Ms. Taylor-Baptiste’s appeal was dismissed.

Finally, it should be noted this case does not necessarily create a “blanket exemption” protecting all forms of union speech from the requirements of section 5 of the Code. Justice Brown found the Appellant’s submission in this regard to be misplaced. The Tribunal expressly stated that its analysis was confined to the facts before it and the result might be different in another case. As the Divisional Court emphasized in its reasons: “The Associate-Chair took pains to say more than once that the outcome here is based on the particular constellation of facts in this case.”

Counsel for the Applicant (Appellant) Mariann Taylor-Baptiste: Ranjan Agarwal and Amanda McLachlan (Bennett Jones LLP, Toronto)

Counsel for the Intervener (Appellant) Attorney General of Ontario: Matthew Horner and Padraic Ryan (Ministry of the Attorney General for Ontario, Toronto)

Counsel for the Respondents (Respondents) Ontario Public Service Employees Union and Jeff Dvorak: Caroline Jones and Jodi Martin (Paliare Roland Rosenberg Rothstein LLP, Toronto)

Counsel for the Respondent (Respondent) Human Rights Tribunal of Ontario: Margaret Leighton and Linda Chen (Social Justice Tribunals Ontario, Toronto)

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Posted: Wednesday, July 08, 2015