



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. Dvoraks manager. Mr. Dvorak was
    president of the jails 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 Tribunals 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. Dvoraks
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-Baptistes
    subsequent application for judicial review, holding that the Tribunals
    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. Dvoraks 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-Baptistes position.

[8]

For the reasons set out below, I conclude that the Tribunals 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 blogs 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-Baptistes 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 jails parking
    lot. Mr. Dvorak thought that Ms. Taylor-Baptiste had not properly dealt with
    this issue as a manager. He posted the following comment:

ROS 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 dont 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 deputys [
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 doesnt even get you an interview. Anyways congratulations
    to the annex staff well done and keep showing this employer they cant forget
    about you. I am out of town in Ottawa actually to tell some mps 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. Dvoraks 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  ONES 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 HES 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, IM 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 blogs 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-Baptistes complaint:
    its initial decision dated July 16, 2012 (the Initial Decision) and its
    February 1, 2013, decision dealing with Ms. Taylor-Baptistes 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. Dvoraks
    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-Baptistes 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-Baptistes
    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-Baptistes 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 Tribunals expertise. The court deferred to
    the Tribunals decision on the point, holding that the Tribunals 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 Tribunals 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. Dvoraks comments on management were protected by ss. 2(b)
    and 2(d) of the
Charter
. I will consider the Divisional Courts
    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 Tribunals 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 Tribunals decision that
    the blog posts did not infringe Ms. Taylor-Baptistes 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. Dvoraks
Charter
rights of freedom of expression and association
    in determining that the blog posts did not infringe Ms. Taylor-Baptistes right
    to equal treatment with respect to employment. They argue that the Tribunals
    approach, and the Divisional Courts 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
    Tribunals expertise and specialization.
[5]



VII.

ANALYSIS

[41]

Did
    the Divisional Court properly apply the reasonableness standard to the
    Tribunals decision that the blog posts did not infringe Ms. Taylor-Baptistes
    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 Courts approach to the Tribunals reasons

[43]

In
    the present case, the Divisional Court properly examined the Tribunals reasons
    as a whole, reading the Initial Decision together with the Reconsideration
    Decision. In so doing, the Divisional Court considered the Tribunals reasons
    in their totality, rather than parsing them: at para. 38.

C.

The
    Divisional Courts 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 Tribunals 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. Dvoraks 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 Courts 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 Courts
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 Tribunals 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
    Tribunals 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 Councils 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 courts discussion
    in
Doré
was analogous to the present case  i.e. the determination by
    an administrative tribunal about whether a persons 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 Tribunals 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 Tribunals 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 Courts 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 Tribunals 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 applicants 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 Tribunals 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 Tribunals 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 employers 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 Tribunals balancing exercise

[71]

As
    to the whether the Tribunals 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
    Tribunals 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 Tribunals 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 Tribunals 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 Tribunals 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.


