Written by David Doorey, York University
Last week, I considered the possibility that conservative governments in Canada might soon add “vaccine status” to the list of prohibited grounds in human rights legislation in order to protect anti-vaccine folks from discrimination at work. Now conservative pundits (see here and here) are losing their minds because some workers are being fired for donating money to the Ottawa Occupiers and insurrectionists whose stated goal (see this insane MOU) was to overthrow the Liberal government.
This week, a worker employed as a communications officer in the Ontario government was terminated for donating $100 to the insurrectionists. Almost certainly more people will be terminated in the coming days as folks scour and report on a leaked document listing all of the donors. Others may be terminated for participating in the occupation.
Personally, I’m enjoying watching the political right becoming woke to the fact that our system of employment law allows employers basically free rein to fire employees for any or no reason at all. In the normal course, conservatives resist laws that restrict employer freedom and “flexibility” to run their business as they like. For example, rarely do you see conservative pundits arguing for stronger employee protections laws or easier access to unionization, which are the only two routes to restricting employer freedom to terminate employees for any reason they like. Unions, because they bargain “just cause” provisions into their collective agreements, and legislation because it imposes explicit restrictions on employers’ otherwise complete freedom to terminate employees for any reason at all.
However, when it comes to employees being fired for giving money to a motley crew of people hoping to overthrow a Liberal government, the conservative punditry is suddenly all about workers’ rights and the injustice of employer freedom. Fantastic!
Does Human Rights Law Protect Donors or Participants in the Protests?
The most interesting legal angle regarding the termination of donors to the insurrectionists is whether these people already have a human rights route to challenge the termination. The argument is that donating money to the convoy is a form of political speech that is protected by the prohibited ground of “political opinion” or “political belief” that is found in human rights legislation across Canada. Every jurisdiction in Canada prohibits discrimination in employment on the basis of political belief , except for Ontario, Alberta, Saskatchewan, the federal jurisdiction, and Nunavut. Workers who lose their jobs in these latter 5 jurisdictions have no human rights complaint available to them, so the human rights argument won’t help the Ontario government staffer fired last week (Does she have a Charter “freedom of expression” argument?). However, a donor who is terminated from their job in Manitoba, BC, or the Maritimes might have grounds for a human rights complaint.
In those jurisdictions where “political belief” is a prohibited ground, tribunals have adopted a broad and liberal interpretation of the meaning of “political”. It clearly includes partisan support for a particular political party, but it also extends beyond this to include comments, actions, and expressions of opinions on public policy and legislation. For example, after reviewing decisions applying “political belief” in British Columbia’s Human Rights Code, the BC Human Rights Tribunal summarized the ground as follows:
From these authorities, I conclude that to be a political belief protected by the Code, the belief need not be confined to a partisan political belief. It should involve public discourse on matters of public interest which involves or would require action at a governmental level. [Fraser v. BC Ministry of Forests, Lands, and Natural Resource Operations (2019)]
Insofar as a terminated employee can persuade a human rights adjudicator that the donation was intended to support a movement to end certain public health mandates and protest a particular political party (federal Liberals or Ontario PCs, for example), they would have a pretty strong argument that they have been discriminated against on the basis of their “political beliefs”. Assuming that “political belief” applies here, the termination of a donor or participant in the convoy would violate human rights legislation unless the employer could somehow argue that removing the worker is a bona fide occupational requirement (a difficult argument one would think).
It will take some time for the dust to settle on this one. We will need to watch how many employees are terminated for their support of the protests and whether any of them employed in a jurisdiction where “political belief” is included in the list of prohibited grounds challenge their termination. From my vantage point, I would love to watch the political right cheer on a worker using the human rights machinery to challenge employer freedom and prerogative. That will be a fantastic spectacle. Stay tuned.