The Role of Charter Values: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495
In Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, the Ontario Court of Appeal tackled the role Charter values may play in the administrative process. At the centre of the case were two employees who worked in a prison. Taylor-Baptiste was the manager of Dvorak, who was also a union president. During a period of labour unrest and collective bargaining, Dvorak maintained a blog where he wrote the following post:
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!!!!!!!!!
A commenter chimed in, noisily:
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.
Taylor-Baptiste complained to the Human Rights Tribunal. Although the Tribunal accepted that the comments were sexist and constituted harassment, the Tribunal also held that they were neither “with respect to employment” nor ” “in the workplace”, two conditions precedent to the application of the two provisions of the Human Rights Code invoked by Taylor-Baptiste (ss. 5(1) and (2)). In its initial decision and its reconsideration decision, the Tribunal relied heavily on the Charter protections for freedom of expression and freedom of association. In the latter decision, the Tribunal commented:
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.
For the Court of Appeal, Brown J.A. largely endorsed the Tribunal’s reasoning. Notably, he rejected the argument that an administrative decision-maker can only take account of Charter values where there is an ambiguity in the statute or where the decision-maker is exercising a discretionary power:
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. I agree with that analysis (at paras. 40-41).
Moreover, it was not unreasonable for the Tribunal to consider Charter values in its analysis: “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” (at para. 58). Brown J.A. held that the Tribunal’s decision was reasonable in the circumstances (at paras. 59-74).
For my post on the Divisional Court decision, see here. On balance, I think I agree with the Court of Appeal’s analysis. Across the range of decision-making — on matters of statutory interpretation, application of law to facts or exercises of discretion — an administrative decision-maker should be free to take Charter values into account in taking what it considers to be the best decision in the circumstances. It should not be necessary to identify a statutory ambiguity as a pre-condition (which involves guesswork as to what a reviewing court might say ex post facto). Of course, it may not always be appropriate to consider Charter values — because they are not raised by the individual concerned or do not arise in a meaningful way — but the decision should really be that of the decision-maker on the front line.
This content has been updated on July 22, 2015 at 10:59.