July 30, 2015 By: Christopher C. Rootham
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The Ontario Court of Appeal recently weighed in on the controversy concerning offensive blog posts by employees about managers. The Ontario Court of Appeal agreed with the Human Rights Tribunal of Ontario (“HRTO”) that, in this case, the blog posts did not offend the Ontario Human Rights Code (“Code”).

The blog in this case was operated by the local branch President of a union. During a period of labour unrest, the author of the blog wrote a post about a manager, stating that the manager only got her job because of her “boyfriend”, among other offensive remarks. An anonymous poster then made a comment to the effect that the same manager was not as good as her common-law spouse. After some pressure from management, the author of the blog stopped making new postings and made his blog inaccessible without a password. The blogger was not disciplined as a result of an agreement reached through collective bargaining.

The manager later filed a complaint under the Code, alleging discrimination and harassment, or more specifically, that the above-noted blog posts belittled her on the basis of sex and marital status. Before deciding whether that was true, the HRTO had to determine, as a preliminary matter, whether the claim for discrimination was “with respect to employment” under s. 5(1) of the Code, and whether the claim for harassment was “in the workplace” under s. 5(2) of the Code. The HRTO concluded that the blog posts were protected by s. 2(b) (freedom of expression) and s. 2(d) (freedom of association) of the Canadian Charter of Rights and Freedoms (“Charter”) and therefore did not fall within the definition of “with respect to employment” or “in the workplace”.

The Court of Appeal concluded that the HRTO acted reasonably by dismissing the complaint. The main issue before the Court of Appeal was whether the HRTO erred by considering “Charter values” in this case. The manager relied upon a longstanding legal principle that Charter values are only relevant in interpreting a statute when the statute is ambiguous. The Court of Appeal concluded that this principle applied to statutory interpretation, but did not apply to decisions by an administrative tribunal.

The Court of Appeal also concluded that administrative tribunals are empowered, and indeed required, to consider Charter values when making decisions. In this case, the HRTO was not only permitted, but required, to consider freedom of expression and freedom of association when deciding this case. The HRTO had properly identified that freedom of expression and freedom of association were engaged by this case, as even offensive or distasteful expression (short of calls for violence) warrant Charter protection. The HRTO proportionately balanced the Charter rights against the purposes of the Code. In this case, the HRTO reasonably sided with the Charter rights. The HRTO came to this conclusion in large part because of the following four factors: (1) the comments were on a matter of general union concern, during bargaining; (2) the manager was not upset by the sexist comments, but rather by the comments about her private relationship; (3) there were no human rights-based effects in the workplace; and (4) the posts were only available for a month, and there was a voluminous amount of other posts that did not mention the manager.

This case is noteworthy for two reasons. First, this is the clearest case to date for the principle that administrative tribunals must always consider the Charter consequences of their decisions. Second, this decision may prove relevant when considering the disciplinary consequences of off-duty misconduct. Employers are more frequently resorting to discipline in response to Facebook posts or blogs written by employees. This Court of Appeal decision may constitute a warning to employers that criticism by employees is Charter-protected activity. The Court of Appeal may also be signalling that courts will take a similar approach in wrongful dismissal actions as well.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law