Taylor-Baptiste v. Ontario Public Service Employees Union et al., 2015 ONCA 495

• Judge: Hoy, A.C.J.O., Watt and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 16, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 495;(2015), 338 O.A.C. 361 (CA)

Taylor-Baptiste v. OPSEU (2015), 338 O.A.C. 361 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.003

Mariann Taylor-Baptiste (applicant/appellant) v. Attorney General of Ontario (intervenor/appellant) and Ontario Public Service Employees Union, Jeff Dvorak and Human Rights Tribunal of Ontario (respondents/respondents)

(C59529; C59543; 2015 ONCA 495)

Indexed As: Taylor-Baptiste v. Ontario Public Service Employees Union et al.

Ontario Court of Appeal

Hoy, A.C.J.O., Watt and D. Brown, JJ.A.

July 3, 2015.

Summary:

Taylor-Baptiste was Dvorak's manager at the Toronto Jail. Dvorak was president of the jail's local union, and operated a union blog. During intense collective bargaining, Dvorak authored a blog post and permitted a post in response, both accusing Taylor-Baptiste of nepotism and incompetence. Taylor-Baptiste complained to the Human Rights Commission, alleging discrimination "with respect to employment" (Human Rights Code, s. 5(1)) and harassment "in the workplace" (Code, s. 5(2)). The Ontario Human Rights Tribunal dismissed the complaint, holding that the s. 5(1) claim for discrimination "with respect to employment" was not made out. The Tribunal also held that, on the facts, the harassment was not "in the workplace." Taylor-Baptiste applied for judicial review.

The Ontario Divisional Court, in a decision reported at (2014), 323 O.A.C. 376, dismissed the application, holding that the Tribunal's decision was reasonable. Taylor-Baptiste appealed, with leave. She maintained that the Tribunal erred in dismissing her s. 5(1) claim; in particular, by holding that the words "with respect to employment" were ambiguous, thus necessitating a consideration of Charter values and a balancing of Dvorak's free speech (Charter, s. 2(b)) and associational rights (Charter, s. 2(d)) against her Code right to be free from discrimination.

The Ontario Court of Appeal dismissed the appeal.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles (incl. Charter) - [See Civil Rights - Topic 990.1 ].

Civil Rights - Topic 990.1

Discrimination - Employment - Discrimination by union - The applicant and the respondent both worked at the Toronto jail - The respondent was president of the jail's local union, and operated a union blog - The key question was whether the blog posts at issue violated s. 5(1) of the Human Rights Code (Ont.) - The Tribunal concluded that, in the particular circumstances of this case, the applicant's claim for discrimination "with respect to employment" was not made out - The Tribunal ruled that the scope of s. 5(1) was ambiguous on the facts, thus necessitating a consideration of Charter values and a balancing of the respondents' free speech and associational rights against the applicant's Code right to be free from discrimination - The Divisional Court dismissed the judicial review application - The Ontario Court of Appeal dismissed the appeal - "[T]he Tribunal gave detailed, intelligible and transparent reasons for its decision ... . The Tribunal engaged in a proportionate balancing of the statutory objective of s. 5(1) of the Code with the Charter rights of expressive and associational freedom engaged by the specific facts of this case. ... I cannot conclude that the Tribunal's conclusion fell outside the range of possible, acceptable outcomes defensible in respect of the facts and law." - See paragraphs 49 to 73.

Civil Rights - Topic 1064

Discrimination - By sex - Application of Charter - [See Civil Rights - Topic 990.1 ].

Civil Rights - Topic 1843.4

Freedom of speech or expression - Limitations on - Postings on social networking websites - [See Civil Rights - Topic 990.1 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - [See Civil Rights - Topic 990.1 ].

Cases Noticed:

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 28, footnote 2].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 39, footnote 4].

Shaw et al. v. Phipps et al. (2012), 289 O.A.C. 163; 347 D.L.R.(4th) 616; 2012 ONCA 155, refd to. [para. 40, footnote 5].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 42, footnote 6].

Peel Law Association et al. v. Pieters et al. (2013), 306 O.A.C. 314; 116 O.R.(3d) 81; 2013 ONCA 396, refd to. [para. 42, footnote 8].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 52, footnote 9].

R. v. Clarke (C.) (2014), 456 N.R. 43; 316 O.A.C. 384; 2014 SCC 28, refd to. [para. 55, footnote 13].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 2015 SCC 12, refd to. [para. 57, footnote 14].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 67, footnote 17].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 67, footnote 18].

United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al., [2013] 3 S.C.R. 733; 451 N.R. 253; 561 A.R. 359; 594 W.A.C. 359; 2013 SCC 62, refd to. [para. 69, footnote 20].

Mounted Police Association of Ontario et al. v. Canada (Attorney General) (2015), 466 N.R. 199; 2015 SCC 1, refd to. [para. 69, footnote 20].

Saskatchewan Labour Federation v. Saskatchewan (2015), 451 Sask.R. 1; 628 W.A.C. 1; 2015 SCC 4, refd to. [para. 69, footnote 20].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 5(1) [para. 2].

Counsel:

Ranjan K. Agarwal and Amanda C. McLachlan, for the appellant, Mariann Taylor-Baptiste;

Matthew Horner and Padraic Ryan, for the appellant, Attorney General of Ontario;

Caroline Jones and Jodi Martin, for the respondents, Ontario Public Service Employees Union and Jeff Dvorak;

Margaret Leighton and Linda Chen, for the respondent, Human Rights Tribunal of Ontario;

Cara Zwibel, for the intervener, Canadian Civil Liberties Association;

Reema Khawja and Sunil Gurmukh, for the intervener, Ontario Human Rights Commission.

This appeal was heard on April 16, 2015, before Hoy, A.C.J.O., Watt and D. Brown, JJ.A., of the Ontario Court of Appeal. In reasons written by D. Brown, J.A., the Court delivered the following judgment, released on July 3, 2015.