COURT OF APPEAL FOR ONTARIO
CITATION: Taylor-Baptiste v. Ontario Public Service Employees Union,
2015 ONCA 495
DATE: 20150703
DOCKET: C59529 & C59543
Hoy A.C.J.O., Watt and Brown JJ.A.
BETWEEN
Mariann Taylor-Baptiste
Applicant
(Appellant)
and
Attorney General of Ontario
Intervener
(Appellant)
and
Ontario Public Service Employees Union, Jeff Dvorak and Human Rights Tribunal of Ontario
Respondents
(Respondents)
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
Heard: April 16, 2015
On appeal from the order of the Divisional Court (Justices Frances P. Kiteley, David Aston and Kevin W. Whitaker), dated May 28, 2014, with reasons reported at 2014 ONSC 2169, 323 O.A.C. 376, dismissing an application for judicial review from the decisions of the Human Rights Tribunal of Ontario, dated July 16, 2012, and February 1, 2013, with reasons reported at 2012 HRTO 1393, 1 C.C.E.L. (4th) 104, and 2013 HRTO 180.
Brown J.A.:
I. INTRODUCTION
[1] The appellant, Mariann Taylor-Baptiste, and the respondent, Jeff Dvorak, both worked at the Toronto Jail. In late 2008 and early 2009, when the events at issue took place, Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”).
[2] In early 2009, during a period of labour unrest and intense collective bargaining, 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, both accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to the Human Rights Commission, alleging discrimination “with respect to employment” contrary to s. 5(1) and harassment “in the workplace” contrary to s. 5(2) of the Human Rights Code, R.S.O. 1990, c. H.19.
[3] The Human Rights Tribunal’s decision did not turn on whether the offending blog posts constituted “discrimination” or “harassment”; the Tribunal was satisfied that the comments were sexist and offensive. Instead, the Tribunal focused its analysis on whether the blog posts constituted conduct “with respect to employment” or “in the workplace” – in other words, whether the conduct complained of fell within the areas of social activity regulated by the Code.
[4] The Tribunal found they were not, ruling that the scope of s. 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 concluded that, in the particular circumstances of the case, the 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.”
[5] The Divisional Court unanimously dismissed Ms. Taylor-Baptiste’s subsequent application for judicial review, holding that the Tribunal’s decision was reasonable.
[6] Ms. Taylor-Baptiste now appeals, with leave, to this court. She has abandoned her appeal regarding a breach of s. 5(2) of the Code, but maintains that the Tribunal erred in dismissing her s. 5(1) claim. In particular, she argues that the Tribunal erred by holding that 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.
[7] The Attorney General of Ontario (“AGO”) was joined as a party to the appeal in this court and supports Ms. Taylor-Baptiste’s position.
[8] For the reasons set out below, I conclude that the Tribunal’s decision was reasonable and I would not interfere with it.
II. THE FACTS
The parties
[9] In October 2008, Ms. Taylor-Baptiste became the Deputy Superintendent of Programs at the Toronto Jail for the Ontario Ministry of Community Safety and Correctional Services (the “Ministry”). Her common law spouse is Scott Gray, who is the Deputy Superintendent, Administration, at the Toronto West Detention Centre. Her former husband is Alan Taylor-Baptiste, who is the president of the OPSEU local at the Ontario Correctional Institute, a different jail.
[10] Mr. Dvorak is a correctional officer and was President of OPSEU Local 530 at the Toronto Jail from February 2008 to November 2009.
[11] In the fall of 2008, as collective bargaining between OPSEU members and the Province was underway, Mr. Dvorak started a blog about issues in the workplace. The Tribunal accepted that the blog’s purpose was to communicate with the Local 530 membership, especially about the ongoing collective agreement negotiations.
[12] Blog entries by Mr. Dvorak and others strongly criticized the Ministry as the employer, and also took aim at individual managers, politicians and journalists. The blog was widely read by people both in and out of the bargaining unit. Many posts used strong language; some used profanity. This reflected the difficult state of collective bargaining at that time, which Mr. Dvorak described before the Tribunal as “off the charts in terms of hostility.”
The blog entries
[13] The two blog entries that became the subject of Ms. Taylor-Baptiste’s complaint were posted on January 16 and 21, 2009. Mr. Dvorak wrote the first post. It was prompted by a work refusal under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, related to the failure to remove ice in the jail’s parking lot. Mr. Dvorak thought that Ms. Taylor-Baptiste had not properly dealt with this issue as a manager. He posted the following comment:
RO’S STEP Up
Yesterday our annex staff had a valid concern regarding the conditions they HAVE TO walk through to get to there [sic] work stations. Yet there [sic] deputy waited hours to call someone else to ask what she should do. 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. Clearly all you have shown is an inability to handle even the easiest of situations or staff relations. Perhaps our senior administration should reconsider there [sic] hiring practices for deputy’s [sic] and change the qualifications from having intimate knowledge off [sic] another deputy to something like maybe some experience doing the job, like Mr. Puntillo. Oh yeah I forgot doing the job for three years doesn’t even get you an interview. Anyways congratulations to the annex staff well done and keep showing this employer they can’t forget about you. I am out of town in Ottawa actually to tell some mp’s and senators just what kind of conditions we are working in but will be back tomorrow until then keep up the good fight!!!!!!!!!
[14] The second blog entry was a comment made by an anonymous poster on January 21, 2009, in response to Mr. Dvorak’s posting. Mr. Dvorak approved any comments before they were placed on the blog for public review. The anonymous comment read as follows (the capitals appeared in the original):
EXCELLENT WEBSITE GUYS AND GREAT COMMENTS/EDITORIALS BY YOUR PRESIDENT. GOOD TO SEE THAT THE MINISTRY IS A PROUD SUPPORTER OF THE “PETER PRINCIPLE” – ONE’S LEVEL OF INCOMPETANCE [sic] REACHED AND EXCEDED [sic] (could apply to all managers). AS A FELLOW C.O. I WOULD LIKE TO POINT OUT THAT MR. TAYLOR-BAPTISTE, IS NOTHING LIKE HIS “X” AND SHE COULD ACTUALLY TAKE GUIDANCE FROM HIS WORK ETHIC. HE IS THE UNION SCHEDULING ASSISTANT HERE AT O.C.I. AND PERFORMS HIS DUTIES WITH EXCEPTIONAL COMPITANCE [sic]. HE IS ALL ABOUT FAIRNESS AND DOING THE RIGHT THING FOR THE STAFF. IN HIS PRESENT CAPACITY HE HAS TO RELATE TO MANAGERS AND ALWAYS CHAMPIONS STAFF ISSUES AND CONCERNS. HE HAS THE FULL SUPPORT OF ALL THE UNCLASSIFIED STAFF, AS WELL AS THE CLASSIFIED. “T.B.” AS HE’S KNOWN, IS VERY DIPLOMATIC WITH ALL THE STAFF HERE, AND I BELIEVE HAS MANAGEMENTS RESPECT. IMAGINE THAT; A C.O. EARNING RESPECT! KEEP UP THE GOOD WORK AND LET MS. BAPTISTE KNOW THAT IF SHE NEEDS ANY HELP MAKING A DECISION IN THE FUTURE, I’M SURE HE WOULD HELP HER. MAYBE SHE SHOULD GO BACK TO HER MAIDEN NAME, OR GRAY, SO AS NOT TO BESMERCH [sic] THE GOOD “UNION” NAME OF TAYLOR-BAPTISTE.
local 229, O.C.I. C.O.
The aftermath
[15] Ms. Taylor-Baptiste alleged that the two posts belittled her on the basis of sex and marital status because they relied on stereotypical views about women obtaining positions of power through sexual relations. She alleged that the posts suggested she only got her managerial job because of her husband and exposed her personal relationships with others working at the Ministry. She also contended that the posts painted her as an incompetent woman, in contrast to competent men such as her current partner, her ex-husband, and Mr. Puntillo.
[16] For his part, Mr. Dvorak explained he had wanted to voice his belief that Ms. Taylor-Baptiste had obtained her position through nepotism because of her relationship with Mr. Gray. Mr. Dvorak asserted that nepotism is rampant in the Ministry, even acknowledging that he had been the beneficiary of the practice.
[17] On several occasions management raised concerns with Mr. Dvorak about the blog and asked him to remove the blog’s references to managers. Mr. Dvorak initially resisted those requests but, in mid-February 2009, he stopped making new postings. Several days later he made the blog inaccessible without a password, which he did not share with anyone else.
Complaint to the Human Rights Commission
[18] Management did not discipline Mr. Dvorak for his blog. After the collective agreement was concluded, the union and employer agreed that no discipline would be meted out to employees who had made blog postings during negotiations and who had not already been disciplined. Ms. Taylor-Baptiste filed a Workplace Discrimination and Harassment Prevention Policy complaint against Mr. Dvorak, but it was not pursued because of the agreement reached between the Ministry and the union.
[19] That led Ms. Taylor-Baptiste to file her complaint against the respondents alleging that the blog posts violated ss. 5(1) and 5(2) of the Code. Section 5(1) of the Code protects “equal treatment with respect to employment without discrimination” on enumerated grounds including sex and marital status. Section 5(2) of the Code provides employees with a right to freedom from harassment in the workplace by the employer or by another employee because of marital status, among other grounds.
[20] Before the Tribunal, Ms. Taylor-Baptiste testified that the two postings had upset her and she had felt under extreme stress following their publication, particularly because Mr. Dvorak was working in an office very close to hers. She thought people in the workplace knew who she was because of the blog posting and associated her primarily with that posting. Ms. Taylor-Baptiste sought assistance from the Employee Assistance Plan and was treated for pain in her jaw from grinding her teeth, a condition directly attributable to stress.
[21] Before the Tribunal, Mr. Dvorak testified that he felt regrets about the blog and its effect on Ms. Taylor-Baptiste, but he stated that one had to “understand what was going on and what was going on with me personally as well.”
III. DECISIONS OF THE HUMAN RIGHTS TRIBUNAL
[22] The Tribunal issued two decisions in respect of Ms. Taylor-Baptiste’s complaint: its initial decision dated July 16, 2012 (the “Initial Decision”) and its February 1, 2013, decision dealing with Ms. Taylor-Baptiste’s request for a reconsideration (the “Reconsideration Decision”).
The Initial Decision
[23] In its Initial Decision, the Tribunal acknowledged that postings on blogs and other electronic media can form part of or an extension of the workplace, but concluded that in the circumstances of this case the postings on Mr. Dvorak’s blog did not amount to harassment “in the workplace” because:
[t]hey were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”. However, even giving them a broad interpretation, the words of s. 5(2) cannot apply to this blog, given the context.[1]
As I mentioned, this holding is not challenged on appeal.
[24] As to Ms. Taylor-Baptiste’s complaint under s. 5(1) of the Code, the Tribunal acknowledged that the conduct of an employee which does not constitute harassment in the workplace under s. 5(2) of the Code, nevertheless could fall within s. 5(1). At para. 27 of its Initial Decision, the Tribunal framed the issue in the following terms:
The determination of whether actions constitute discrimination under s. 5(1) involves a consideration of all the relevant circumstances, including the seriousness of the conduct, their significance, their effect on the workplace, the role of the person making them, the effect on the applicant, and the reaction of the respondent to any concerns raised.
[25] One circumstance considered by the Tribunal was the nature of the expression at issue. The Tribunal found that Mr. Dvorak made or authorized the comments “in the course of his duties as a … union president,” as a result of which his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedoms.
[26] After taking into account several factors, including the Charter rights engaged, the Tribunal concluded that Mr. Dvorak had not discriminated against Ms. Taylor-Baptiste with respect to employment. The Tribunal stated, at para. 42 of its Initial Decision:
Most significant to my decision in this case are that the postings were tied to communication to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.
The Reconsideration Decision
[27] In its Reconsideration Decision, the Tribunal not only dealt with new Charter arguments advanced by Ms. Taylor-Baptiste, but also described, at para. 32, the analytical exercise it had undertaken in considering Ms. Taylor-Baptiste’s complaint:
The boundaries of what falls under the social areas of services, accommodation, contracts, membership in a vocational association and employment are not always clear. An adjudicator must undertake an interpretation of the broad words in the Code to determine, in a contested case, whether this is the type of activity that it regulates. In doing so, the Tribunal must interpret rights broadly, and also undertake a purposive and contextual interpretation of the legislation. The need for a large and liberal approach to the rights in the Code does not relieve those applying it from the difficult task of interpreting its boundaries.
[28] The Tribunal stated that where the issue was whether the activities in question fell within a social area regulated by the Code, it has favoured an interpretation under which “in cases of ambiguity the Code would not restrict activities at the core of the fundamental freedoms protected by s. 2 of the Charter”: Reconsideration Decision, at para. 33. The Tribunal was of the view that the direction given by the Supreme Court of Canada in Doré v. Barreau du Québec that “administrative decisions are always required to consider fundamental [i.e. Charter] values” confirmed the approach it had taken.[2]
IV. DECISION OF THE DIVISIONAL COURT
[29] The Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review of the Initial Decision and the Reconsideration Decision.[3]
[30] The Divisional Court concluded that whether the blog posts were “in the workplace” within the meaning of s. 5(2) of the Code was a question of mixed fact and law lying at the heart of the Tribunal’s expertise. The court deferred to the Tribunal’s decision on the point, holding that the Tribunal’s decision that the blog posts were outside the scope of s. 5(2) was reasonable.
[31] The Divisional Court went on to hold that the Tribunal’s decision that the blog posts fell outside of s. 5(1) of the Code also was reasonable. On that question of mixed fact and law, the Divisional Court concluded that the Tribunal was entitled to delve deeply into the specific facts of the case, including that Mr. Dvorak’s comments on management were protected by ss. 2(b) and 2(d) of the Charter. I will consider the Divisional Court’s reasons in more detail below.
V. THE PARTIES’ POSITIONS ON THE ISSUE ON APPEAL
[32] On this appeal, Ms. Taylor-Baptiste does not challenge the Tribunal’s finding that the blog posts were not made “in the workplace” within the meaning of s. 5(2) of the Code.
[33] Although the parties used different language to frame the main issue, in essence they agreed that the question before this court is whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe Ms. Taylor-Baptiste’s right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.
[34] The appellants submit that the Divisional Court did not properly apply the reasonableness standard. In their view, the Tribunal improperly took account of Mr. Dvorak’s Charter rights of freedom of expression and association in determining that the blog posts did not infringe Ms. Taylor-Baptiste’s right to equal treatment with respect to employment. They argue that the Tribunal’s approach, and the Divisional Court’s endorsement of that approach, is inconsistent with Supreme Court of Canada jurisprudence on when an administrative decision-maker may resort to Charter values to decide a case before it.
[35] In the alternative, the appellants submit that even if the Tribunal was entitled to take Charter values into account in its s. 5(1) analysis, it failed to balance reasonably the Charter values with the statutory objectives of the Code.
[36] The intervener, the Ontario Human Rights Commission, supports these arguments.
[37] For their part, the respondents submit that the Tribunal reasonably concluded that the impugned blog posts, on the specific facts of the case, were not “with respect to employment” within the meaning of s. 5(1) of the Code, and that the Tribunal properly used Charter values as an interpretive aid in reaching that conclusion.
[38] The respondent, the Human Rights Tribunal of Ontario, submits that the Supreme Court of Canada’s decision in Doré compels administrative decision-makers to consider and integrate Charter values into their adjudicative work. To this, the Canadian Civil Liberties Association adds that the Tribunal must consider and reconcile the fundamental Charter right of freedom of expression with a broad and purposive reading of the Code.
VI. THE STANDARD OF APPELLATE REVIEW
[39] 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.[4]
[40] Before the Divisional Court, the parties agreed that the standard of review on questions respecting the scope of s. 5 of the Code was reasonableness, and the Divisional Court identified reasonableness as the applicable standard of review. In so doing, the Divisional Court followed the jurisprudence of this court 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.[5]
VII. ANALYSIS
[41] Did the Divisional Court properly apply the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe Ms. Taylor-Baptiste’s right to equal treatment “with respect to employment without discrimination” under s. 5(1) of the Code?
A. The general principles that guide the review
[42] The reasonableness standard of review recognizes that certain questions coming before administrative tribunals do not lend themselves to only one particular result.[6] Consequently, reasonableness is concerned with both the existence of justification, transparency and intelligibility of the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[7] Where the reasonableness standard applies to an issue, the person seeking judicial review must show that the tribunal could not reasonably have arrived at the decision it reached.[8]
B. The Divisional Court’s approach to the Tribunal’s reasons
[43] In the present case, the Divisional Court properly examined the Tribunal’s reasons as a whole, reading the Initial Decision together with the Reconsideration Decision. In so doing, the Divisional Court considered the Tribunal’s reasons in their totality, rather than parsing them: at para. 38.
C. The Divisional Court’s treatment of the ambiguity issue
[44] Ms. Taylor-Baptiste and the AGO submit that the Tribunal unreasonably concluded that an ambiguity existed in the language of s. 5(1) of the Code which then permitted the Tribunal to consider Charter values in analyzing whether the respondents’ conduct had violated the section.
[45] I agree with the Divisional Court that it was difficult to see any ambiguity on the face of the language of s. 5(1) of the Code and that the issue the Tribunal faced more accurately should be characterized as “deciding as a question of mixed fact and law in the particular circumstances of this case, whether the blog posts were within or outside of s. 5(1) of the Code”: at paras. 29 and 38. That 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.
[46] Since the Tribunal had concluded that s. 5(1) of the Code contained an ambiguity, the Divisional Court reviewed the Tribunal’s decision on the point in depth to understand what the Tribunal meant by that conclusion. In the course of its review, the Divisional Court observed that the parties had presented the Tribunal with “stark and extreme perspectives” about how to apply s. 5(1) of the Code to the facts of the case: at para. 36. Whereas Ms. Taylor-Baptiste focused on her position as a woman entitled to a workplace free of sexism, the respondents focused on Mr. Dvorak’s right to union speech and his subordinate position vis-à-vis his manager, Ms. Taylor-Baptiste.
[47] The Divisional Court reproduced paras. 40-42 of the Reconsideration Decision in which the Tribunal had tried to take a more nuanced approach to the issue of whether the respondents’ conduct was “with respect to employment” under s. 5(1) of the Code. There the Tribunal repeated the factors it had taken into account and, at para. 41, summarized how it had balanced them:
Although I found it a difficult decision, in the end I concluded that the facts in this case tipped in favour of the public expressive nature of the comments. Central to the tipping of the balance in favour of this union expression were:
(1) The connection of the comments to a matter of union concern, made during bargaining, and made on a blog focused on union-management relationships, by the President of the union local.
(2) The impact of the comments on the applicant was her concern they had brought her personal life into the workplace, not the sexist stereotypes. As she described it, her concern and upset would have been the largely the same whether the point about her relationship with Mr. Gray was made using sexist language or not.
(3) The absence of any evidence of Code-based effects in the workplace. The only impact described was people commenting on the fact they had read about her.
(4) The applicant was mentioned twice among voluminous numbers of posts that were accessible for a period of only about a month.
[48] I agree with the Divisional Court’s conclusion, at para. 37 of its reasons, that the Tribunal was entitled to delve deeply into the facts of the case in order to determine the key question of mixed fact and law – i.e. whether, in the particular circumstances of this case, the blog posts fell within or outside s. 5(1) of the Code. Indeed, the parties agreed that any determination about whether conduct violates s. 5(1) of the Code requires an examination of all relevant facts.
D. Whether the Tribunal could consider Charter values as part of its analysis under s. 5(1) of the Code
[49] That brings us to the main point in dispute between the parties: what were the relevant facts or factors that the Tribunal was entitled to take into account in making its decision? The appellants submit that the Tribunal was not entitled to consider Charter values as factors in its analysis; the respondents contend it was. More specifically, the appellants submit that the Tribunal and Divisional Court erred in giving any consideration to Charter values because an administrative tribunal can only take such values into account if its home statute contains an ambiguity or if the tribunal is exercising a discretionary power. By contrast, the respondents argue that the Supreme Court’s Doré decision authorized the Tribunal to take into account the relevant Charter values, in particular, the Charter rights of freedom of expression and association.
[50] The Divisional Court observed, at para. 38 of its reasons, that “the Charter rights of Dvorak and OPSEU are ultimately just a factor that was considered, amongst others, in deciding as a question of mixed fact and law in the particular circumstances of this case, whether the blog posts were within or outside of s. 5(1) of the Code.” That court then addressed the appellants’ submission about the Tribunal’s ability to take into account Charter rights, concluding, at para. 40, that the Doré case stands for “the broad principle that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise.” The Divisional Court observed that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code engaged the core of the Tribunal’s expertise: Divisional Court Reasons, at para. 40.
[51] I agree with that analysis. In Doré, the Supreme Court considered the reasonableness of a decision by the Disciplinary Council of the Barreau du Québec. The Council found that Doré, a lawyer, had violated art. 2.03 of the Code of ethics of advocates, R.R.Q. 1981, c. B-1, r.1, which requires that the “conduct of an advocate must bear the stamp of objectivity, moderation and dignity.” The Council suspended Doré for 21 days from the practice of law. By the time the case reached the Supreme Court, Doré had served the suspension and was not appealing the penalty. His appeal was limited to the Council’s finding that he had breached the Code of ethics.
[52] The Court re-considered the appropriate framework to apply when reviewing administrative decisions for compliance with the Charter. At para. 24 of its reasons, the Court stated: “It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values.” The Supreme Court replaced the R. v. Oakes[9] s. 1 framework previously used to measure whether an administrative decision complied with the Charter with an approach under which a decision-maker is required to balance the Charter values at issue with the statutory objectives engaged.[10] If the reviewing court can conclude that the administrative decision-maker has properly balanced the relevant Charter value with the statutory objectives in exercising its statutory discretion, the decision will be found to be reasonable.[11]
[53] The appellants argue that the Tribunal acted unreasonably in taking Charter values into account in its analysis. They make two points.
[54] Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case. In support of their submission, they rely on the statement in Bell ExpressVu that “to the extent this Court has recognized a Charter values’ interpretive principle, such principle can only receive application in circumstances of genuine ambiguity.”[12]
[55] Binding authority prevents the acceptance of the appellants’ submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke[13], it stated, at para. 16:
Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.
[56] The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code.
[57] While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants’ submission. First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values”[14] (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule.
[58] Consequently, I do not interpret the binding jurisprudence as permitting this court to interfere with the Tribunal’s decision simply because it considered Charter values in the course of determining whether the respondents’ conduct violated s. 5(1) of the Code.
E. Whether the Tribunal properly balanced relevant Charter values with the objective of the Code
[59] As an alternative argument, the appellants submit that if the Tribunal was entitled to take into account Charter values in deciding whether the respondents’ conduct violated s. 5(1) of the Code, the Tribunal failed to strike a reasonable balance between Charter values and the statutory objectives of the Code.
[60] In Doré, the Supreme Court of Canada described the approach an administrative decision-maker should follow when applying Charter values: first, the decision-maker should consider the statutory objectives at play, and then ask how the Charter value at issue will best be protected in view of the statutory objectives by balancing the severity of the interference of the Charter protection with the statutory objectives.[15] The resulting decision is entitled to a measure of deference so long as it falls within a range of possible, acceptable outcomes.[16] As put by the Supreme Court of Canada at para. 58 of Doré: “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”
[61] Let me turn, then, to the Tribunal’s identification of the relevant statutory objective, its selection of the relevant Charter values, and its balancing of both.
The statutory objective
[62] 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. As to the applicable statutory objective, in para. 42 of its reasons the Divisional Court stated that in “the original decision the Tribunal pinpoints the Code’s objective as protecting Ms. Taylor-Baptiste from a poisoned work environment”. Indeed, in its Initial Decision (paras. 27, 31-35) and Reconsideration Decision (paras. 37-38, 40, 48-51, 56-57), the Tribunal thoroughly considered the objective of s. 5(1) of the Code and the evidence that related to that objective.
The Charter rights selected by the Tribunal
[63] At paras. 42 and 43 of its reasons the Divisional Court reviewed the Charter rights selected by the Tribunal – freedom of expression and freedom of association – writing that:
I agree with the statement in paragraph 29 of the original decision that “an analysis of the nature of the expression at issue which was made by Mr. Dvorak in the course of his duties as a local union president” necessitated consideration of the fact that “his comments on management are protected” by s. 2(b) and (d) of the Charter.
The broader consideration the Tribunal engaged in in this case could include the Charter rights of Dvorak and OPSEU as a factor to take into account in determining whether or not there was “discrimination with respect to employment” within the meaning of the Code.
[64] I agree with the Divisional Court’s analysis on this point. The Tribunal properly identified freedom of expression and freedom of association enshrined in ss. 2(b) and 2(d) of the Charter as the relevant Charter rights in the circumstances of this case.
[65] The appellants submit that the Tribunal’s selection of those Charter rights was unreasonable for two reasons: first, the discriminatory and offensive content of the blog postings do not lie at the core of constitutionally-protected speech; and, second, the protection afforded by s. 5(1) of the Code does not infringe associational freedom. I do not agree.
[66] Regarding the appellants’ submission about freedom of expression, the Tribunal wrote, in para. 44 of its Reconsideration Decision:
[The applicant] suggests that the blog posts, because they drew on sexist stereotypes to make their point, were not protected under ss. 2(b) or 2(d) of the Charter. She argues that the Tribunal failed to distinguish between “legitimate speech” and “illegitimate expression that runs counter to the equality rights values” in the Charter and the Code. This argument is not consistent with the principle that expression is protected under s. 2(b) of the Charter regardless of its content if it conveys meaning. See, for example, Ross v. New Brunswick School District No. 15, [1996] 1 SCR 825. The nature of the expression is a factor in the balancing of rights, and the Decision explicitly analyzed this issue at paras. 27 and 33-35. The applicant’s submission that the speech is “illegitimate” or not worthy of protection because it drew on a sexist stereotype runs counter to established jurisprudence on freedom of expression.
[67] I see nothing unreasonable in this conclusion. Section 2(b) of the Charter protects a broad range of expressive activity, including “distasteful” expression.[17] By the same token, it does not protect violent expression,[18] and some expression, such as hate speech, does not enjoy equal treatment in determining an appropriate balancing of competing values under a s. 1 analysis.[19] The Tribunal understood these legal principles, stating that “the nature of the expression is a factor in the balancing of rights.” But, the blog postings in this case were not hate speech. They contained rude, distasteful, and sexist remarks which even Mr. Dvorak acknowledged, upon reflection, appeared to him to have been “written by an asshole’:” Initial Decision, at para. 19.
[68] As to the appellants’ submission about the Tribunal’s selection of freedom of association as a relevant Charter right, the Tribunal enumerated, in para. 37 of its Initial Decision, the facts which engaged the respondents’ associational rights: the comments were made by Mr. Dvorak in his role as a local union president on a union blog, rather than in his role as a fellow employee; they dealt with union-management relations; Ms. Taylor-Baptiste was a manager who had the power in the workplace that came with that role; the comments were directed at the union membership; and, the posts expressed to the union members opinions on how Ms. Taylor-Baptiste had handled the work refusal by union members. That led the Tribunal, in para. 40 of its Initial Decision, to conclude:
His postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business…. Most important, union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association, and close to the core of those rights.
[69] Again, I see nothing unreasonable in the Tribunal’s conclusion on this point. As the Supreme Court has held, expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 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.[20]
[70] In these portions of its decisions, 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.[21]
The proportionality of the Tribunal’s balancing exercise
[71] As to the whether the Tribunal’s balancing of the Charter rights with the objectives of the Code was proper in the circumstances, one must recall the key principle that drives the presently prevailing approach to judicial review analysis. As stated by the Supreme Court, at para. 47 of Dunsmuir:
[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.
[72] In the present case, the Tribunal gave detailed, intelligible and transparent reasons for its decision that the respondents’ conduct did not constitute discrimination “with respect to employment” in violation of s. 5(1) of the Code. 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.
[73] 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 s. 5(1) of the Code. Facts such as those raised by this case can well “give rise to a number of possible, reasonable conclusions.” 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, including the balancing of Charter rights with the Code’s objective, I cannot conclude that the Tribunal’s conclusion fell outside the range of possible, acceptable outcomes defensible in respect of the facts and law.[22]
[74] I would make one final observation. Ms. Taylor-Baptiste and the AGO submit that the Tribunal’s decision effectively creates a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code. In my view, their concern is misplaced. The Tribunal expressly stated that its analysis was confined to the facts before it and that the result might be different in another case. As the Divisional Court emphasized at para. 28 of 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.” I agree with that statement.
VIII. DISPOSITION
[75] For the reasons set out above, I would dismiss the appeal.
[76] At the hearing of the appeal, the parties were not able to agree on costs. The respondents advised they would seek costs if successful; the Tribunal was not seeking costs. I would permit the parties to make written cost submissions, of up to five pages, on the following schedule: (i) the respondents are to deliver their cost submissions within ten days of the date of these reasons; and (ii) any party against whom the respondents seek costs may deliver responding cost submissions within ten days thereafter.
Released: July 3, 2015 (A.H.) “David Brown J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree David Watt J.A.”
[1] Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (the “Initial Decision”), at para. 26. See also, 2013 HRTO 180 (the “Reconsideration Decision”), at paras. 22 and 53.
[2] 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 35.
[3] 2014 ONSC 2169, 323 O.A.C. 376 (hereafter the “Divisional Court Reasons”).
[4] Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45 and 46.
[5] Divisional Court Reasons, at para. 20, citing Shaw v. Phipps, 2012 ONCA 155, 347 D.L.R. (4th) 616, at para. 10.
[6] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[7] Dunsmuir, at para. 47.
[8] Pieters v. Peel Law Association, 2013 ONCA 396, 116 O.R. (3d) 81, at para. 132.
[9] [1986] 1 S.C.R. 103.
[10] Doré, at paras. 55 and 56.
[11] Doré, at para. 58.
[12] Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62 (emphasis in original).
[13] 2014 SCC 28, [2014] 1 S.C.R. 612.
[14] Doré, at para. 35. See also Loyola High School v. Quebec (Attorney General), 2015 SCC 12, at paras. 3 and 4.
[15] Doré, at paras. 55 and 56.
[16] Doré, at para. 56.
[17] R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 729. See also, Reconsideration Decision, at para. 44.
[18] Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 112.
[19] Whatcott, at para. 114.
[20] Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733, at paras. 30 and 32; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, at paras. 66, 69 and 70; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, at para. 58.
[21] Doré, at para. 58.
[22] Dunsmuir, at para. 47.