Human Rights Tribunal relies on Charter values to dismiss complaints against unions
Nadine Blum
Nadine Blum looks at two recent cases involving human rights complaints against trade unions
The Human Rights Tribunal of Ontario has recently been asked to grapple with competing rights claims in cases where unions were accused of discrimination under the Human Rights Code. In two such cases, the Tribunal relied on Charter values – and, in particular, the value of freedom of expression – to conclude that no discrimination had occurred.
In the first case, Yuill v. Canadian Union of Public Employees, a complaint was filed by the sister of a man with an intellectual disability who resided in group residence operated by a community living organization. The employees who cared for the residents were on a legal strike and picketed peacefully outside of the group home, i.e. outside their workplace.
The sister, who was appointed as her brother’s litigation guardian, maintained that the picketing constituted discrimination against persons with disabilities in the area of services and accommodation. A similar complaint involving a different union and group home was heard by the Tribunal at the same time.
The Tribunal summarily dismissed both complaints on the basis that they had no prospect of success. It held that the employees were not service providers or assisting with the occupancy of accommodation while they were on strike. They had expressly withdrawn their services, and were protesting their employers’ failure to reach an agreement with their unions. Further, the unions (who were named as respondents in the complaints) had no role as service or accommodation providers at any time. Their role was to represent their members in their workplace interests, not to serve the clients of the home. Accordingly, they could not be seen as discriminating in providing services or accommodation to the residents.
The Tribunal further noted that picketing lies at the core of the right to freedom of expression under s. 2(b) and is also protected by the guarantee of freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms. Therefore, it held, any ambiguity in the application of the Code should be resolved in favour of not interfering with the picketing.
More recently, in Taylor-Baptiste v. Ontario Public Service Employees Union, the Tribunal dismissed a complaint brought by a manager at the Toronto Jail against OPSEU and its local president, who was also a correctional officer. She alleged that the respondents had harassed and discriminated against her with respect to employment on the grounds of marital status and/or sex.
The alleged discrimination and harassment occurred through comments posted on a public blog published by the local president to communicate with union members about workplace issues. In one post, the local president criticized the manager’s handing of a work refusal and made comments to the effect that she was incompetent and had been placed in her position through nepotism by her common-law spouse, who was the Deputy Superintendent of Administration at the Toronto West Detention Centre. The manager argued, among other things, that this comment was sexist as it perpetuated the stereotype of women “sleeping their way to the top.”
The other blog entry at issue was posted anonymously. It praised the manager’s ex-husband (who was a local union president at a different jail) and suggested she get help from him in making her future decisions. It further suggested that her continued use of his last name was besmirching a good union name.
In dismissing this complaint, the Tribunal weighed a number of factors, including the fact that the manager’s main concern had been the allegations of nepotism, not the sexism inherent in the comments, and that the comments had not resulted in a poisoned work environment.
However, it considered the “most important” factor militating against a finding of discrimination to be that “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.”
The Tribunal affirmed this analysis when the manager requested that it reconsider the decision. She argued that, because they were sexist, the blog posts lay outside of the “core” of protected expression. The Tribunal rejected this argument:
The use of stereotypes based on prohibited grounds to convey a political point is of a completely different nature than the promotion of hatred … The fact that they lie at the core of freedom of expression is one of the reasons why newspaper editorials cannot lead to Code claims, even if they contain racist or sexist statements that would offend the Code if said by a service provider to a customer, a worker to a co-worker, or a vocational association to its members. The use of stereotypes, on its own, does not diminish the importance of political expression.
While the Taylor-Baptiste case, like Yuill, is encouraging in that it demonstrates the Tribunal is alive to the need to protect the values of freedom of expression and association so that unions can effectively act “as the representative of workers who are vulnerable in their relations with management,” it must be emphasized that another similar case could be decided differently. The Tribunal in Taylor-Baptiste specifically noted these kinds of issues must be determined “case-by-case,” taking into account the seriousness of the conduct, the effect on the workplace, the role of the person making the comments, the effect on the applicant, and the reaction of the respondent to the complainant’s concerns.