Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Meeting 13: The Challenges of Social Media

In this meeting the HRLG discuss the challenges of social media in today's environment.  This session will look at how decision makers are defining what constitutes harassment when social media is part of the equation in both the educational and the workplace environment.


Guest Speakers

Neil Bearse, School of Business


Cases Discussed

Pridgen v. University of Calgary, 2010 ABQB 644 (CanLii), aff'd in part by 2012 ABCA 139 (CanLII)

Two undergraduate students who were found to have committed non-academic misconduct after they posted negative comments about a professor on a Facebook page created by another student called "I no longer fear hell, I took a course with Aruna Mitra". They claimed their right to freedom of expression had been breached. It was found that the Charter does apply to University disciplinary proceedings against students, but that the discipline had been excessive. It was further found that the Facebook wall does have a utility as a forum of discussion and that the students' Charter rights were infringed. Ultimately the decision to discipline was quashed. The University disciplinary committee's decision was found unreasonable based on the denial of right of appeal, no proper explanation of why non-academic misconduct found based on definition in Student Misconduct Policy, and no evidence showing injury caused to the Professor in question.


Frederick Zhang v. The University of Western Ontario, 2010 ONSC 6489 (CanLII)

A first year law student was expelled after making a number of inappropriate Facebook postings. The student claimed the discipline breached his right of free speech and that the University lacked authority to find misconduct because his Facebook postings were off-campus. However, the particular postings, due to their threatening nature, do not constitute protected speech. The committee specifically found that the posting was not protected by Mr. Zhang's right to free speech as set out in Part I, s. 6 of the Code. Furthermore, the University's Code of Student Conduct expressly states it applies to off-campus conduct that has or is reasonably seen to have an adverse effect on the rights of university members, which was found to be the case. Ultimately, the committee determined that "a reasonable person would find the message posted by Mr. Zhang disturbing and threatening and would cause fear and apprehension among his classmates.


University of Windsor Judicial Panel Decision No. JPH-12/13-10 issued Nov 8, 2012

The incident involved a student in the Faculty of Nursing charged with posting uncivil and/or harassing comments about a fellow student and a Faculty member on Twitter. The first three tweets were directed at a fellow classmate, while the fourth tweet was directed at a faculty member. It was found that while these tweets were crude, insensitive and failed to adequately capture the context that gave rise to them. Taken together, these tweets amount to uncivil conduct, and yet the fourth tweet was deemed as protected under sub-section 2(b) of the Charter as an exercise of the student's freedom of expression. Ultimately none of the tweets, taken individually, were deemed to have risen to a "serious enough" level to constitute harassment. In this case it was determined that , the threat of disciplinary charges for comments made on social media platforms (whether public or semi-public) that are alleged to be "uncivil", "unprofessional" or similarly nebulous grounds, should never take priority over students' right to freedom of expression.


Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (CanLII)

The employee made racist Facebook comments about her manager. The comments were deemed to amount to harassment in employment contrary to the Code. Consequently, employee was ordered to take human rights training.


Alberta Union of Provincial Employees v. Alberta Health Services (Hajrallahu Grievance), [2012] AGAA No. 7 (Wallace)

Grievor terminated for harassment of co-worker - physical touching and posting harassing messages exchanged largely through Facebook's private messaging function. However the alleged misconduct was somewhat unclear in this case. There was first of all a problem in discerning the truth of the physical incident against a backdrop of two employees who possessed some measure of social relationship between them. In the case of the harassing Facebook exchange, the events happened in part while both employees were off-duty and that both of them, however improbably, seem to have treated it as not being conduct that related to work. Both appeared to consider themselves free to indulge in a cycle of nasty, personal remarks in which there was provocation on both sides. The incidents were ultimately found to constitute misconduct and consequently warranted discipline. However, while the incident was deemed to justify discipline, it was not found to be cause for discharge. The result was that the grievance upheld and grievor reinstated without compensation.


Canada Post Corp. and CUPW, [2012] CLAD No. 85

The employee was dismissed for derogatory, harassing and bullying remarks about supervisors and employer on Facebook. In this case the Employer argued that the postings were grossly insubordinate, had the potential to damage the reputation of the Corporation, and had greatly harmed the supervisors. In response, the Union submitted that the Grievor had no intention of making her Facebook postings public and was simply venting to her friends and co-workers. She had further assumed the messages were private and not visible to her employer. However, while the grievor might have bFelieved that her postings were private, it was found that reasoning did not relieve her of the responsibility for what she wrote. It was ultimately concluded that the employer had just cause for dismissal, as the Grievor's did not appear remorseful and her attitude suggested that she would be a poor candidate for re-establishing the employment relationship.


McIntosh v. Metro Aluminum Products Ltd & Zbigniew Augustynowicz, 2011 BCHRT 34

Company and owner held liable for $30,000 in damages due to owner's "textual harassment" of female employee. In this case Mr. Augustynowicz and Ms. McIntosh had consentingly entered into a sexual relationship. However, when that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh's working environment. Yet Mr. Augustynowicz  continued to subject Ms. McIntosh to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. In conclusion, Ms. McIntosh's departure from Metro was deemed to be due to the sexual harassment.


Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB)

Firing of two employees of a car dealership over crude, insulting and threatening Facebook comments made about their supervisor and manager and comments discouraging the public from doing business with employer upheld. In this case, the Union argued that the Employer did not have proper cause for dismissal and even if it did, the terminations were motivated at least in part by anti-union animus. Therefore, the Union charges that the Employer committed an unfair labour practice and the terminations should be rescinded by the Board. In conclusion, the Employer was found to not be motivated by anti-union animus. Furthermore, it was found that the comments were inappropriate and insubordinate and created a hostile work environment for co-workers and supervisors. It also said they were likely to damage the reputation and business interests of the Employer. As a result, the Employer was found to not have breached the Code and termination was deemed appropriate.


Saskatchewan (Ministry of Corrections, Public Safety and Policing) and S.G.E.U. (Hawryluk) (Re)¸106 C.L.A.S. 157)

A "Secret" invite-only Facebook Group was created by an employee and involved in by other employees. In this group, racist and derogatory pictures and comments posted regarding the payments made to residential school survivors. It was found that the grievors' action violated a number of internal policies including the Government's Anti-Harassment Policy which defines race as prohibited ground, the Standards of Conduct for Corrections Staff which holds that corrections workers are held to a higher standard of conduct than members of the public, the In-Scope Competency Profiles which outlines the knowledge, skills and personal attributes that corrections workers must either bring to the position or learn while in the position, and finally the Information Technology Acceptable Usage Policy which outlines incidental and unacceptable usage of various technologies, including network computers. Despite the use of a "private group" function, the court found that the Internet is a unique universe to which anyone with a computer has access and entry. As a result, there was clear reputational risk to the employer and the employer had the right to respond to the misconduct that caused the risk. Ultimately the termination of the employees in the Group was upheld.