When Political Theatre Becomes Workplace Drama: Political Speech And Work

• Law Firm: McMillan LLP
• Subject Matter: Employment and HR, Government, Public Sector, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Human Rights
• Author: Mr Dave McKechnie, David Fanjoy, Khaleed Mawji (Summer Student) and Kiira Kaarid (Summer Student)
• Published date: 30 May 2023

Introduction

Over the past several years there have been numerous examples of employees who face repercussions for making their political views heard within and outside the workplace. The COVID-19 pandemic brought an acceleration of cases where employees' opinions about an issue in the public square has brought the scrutiny of their employer. For example, the Ontario Superior Court of Justice recently considered a decision by the College of Nurses of Ontario to discipline two nurses for making unfounded comments on social media regarding the COVID-19 virus, mask mandates, vaccinations and other public health measures.¹ It is not hard to find situations where an employee's opinion about a topic has landed them in hot water.

However, employers must first consider the human rights implications of political speech before taking action. In many Canadian jurisdictions, human rights legislation provides a measure of protection from politically motivated sanctions against employees. At present, eight jurisdictions in Canada have incorporated 'political belief,' or some derivation thereof, as a prohibited ground of discrimination within their human rights legislation: British Columbia, Manitoba, Québec, Prince Edward Island, New Brunswick, Nova Scotia, Newfoundland and Labrador, and the Yukon.

This bulletin provides a summary of the current status of legislative protections for political belief across Canada, followed by an overview of the implications for employers.

Jurisdictions with an Expansive Definition of Political Belief

In British Columbia, Manitoba, Québec, and Newfoundland and Labrador, human rights legislation provides an expansive definition of workplace-based protections for employees with respect to their political beliefs. Although there is no explicit definition of 'political belief' in these jurisdictions' human rights legislation, their respective human rights regulators and tribunals have shaped the wide scope of protections.

British Columbia: British Columbia's definition of 'political belief' is the most developed of all jurisdictions. The British Columbia Human Rights Tribunal has summarized the following guiding principles to determine whether a belief constitutes a protected political belief:

• Political belief should be determined on the facts and circumstances of each case;
• Political belief should be given a liberal definition, not confined to partisan political beliefs, yet with reasonable limitations;
• A political belief should have a factual foundation with a reasonable level of cogency and cohesion to ensure there is sufficient tangibility to the belief;
• A political belief should be genuinely held. It must not be a passing idea nor a position taken for convenience or advantage in the circumstances in which the conflict arises. It must be broader than an individual's own personal interests; and
• A political belief should be core to a person's...