Tribunal to review free-speech issue
MUNICIPAL GOVERNMENT: Decision on city worker’s complaint could have impact ‘in B.C. and across Canada’
The B.C. Human Rights Tribunal says the City of Vancouver apparently threatened an employee to not express his political beliefs, and that an “important” case questioning whether the city’s code of conduct violates Canada’s Charter of Rights and Freedoms must be heard.
The tribunal’s decision means the wording and interpretation of Vancouver’s code of conduct will be examined, possibly leading to clarifications that could impact employers and employees across Canada.
As The Province has previously reported, city garbage man Milan Kljajic filed a human rights case after the city used its code to block him from speaking at a Vancouver Park Board meeting in February 2013 against city plans to take control of park board associations.
In arguments to the tribunal, the city denied that it discriminated against Kljajic, and asserted its code conforms to the charter. The city also argued it has “publicly altered its interpretation” of the code, and the tribunal would be wasting “scarce” resources by hearing Kljajic’s complaint.
Tribunal member Walter Rilkoff disagreed, stating in a Dec. 3 decision: “In my view, this is an important matter. Free speech is a charter-protected right.”
“I note that the freedom to hold and to express one’s political opinions is one of the touchstones of our democracy,” Rilkoff wrote. “Employees of the city are told in the code of conduct policy that they enjoy broad political freedoms but, at least in this case, appear to have faced threats to their continued employment with the city if they were to exercise those freedoms.”
Kljajic was elected the new president of Kensington Community Centre Association in early 2013. When city managers learned of his intention to speak for his association at a Feb. 25 park board meeting, managers consulted on whether the code gave grounds to stop him, and decided it did, and made plans to contact Kljajic and warn him. If an employee breaches the code, managers can discipline and ultimately fire them.
Kljajic’s manager Mike Zupan sent him a letter citing Section 7 of the code, which says staff are not permitted to lobby elected officials, and employees can’t make public statements “unfairly attacking” the city, its staff or politicians.
Kljajic said he was shocked by the city’s move, felt bullied and intimidated, suffered panic and anxiety attacks, and feared losing his job of 10 years. Months later he suffered a heart attack, which he told the tribunal was due to the stress of living under the threat of Zupan’s letter.
Zupan was named in Kljajic’s complaint. But Rilkoff dismissed that part of the claim, deciding Zupan had little involvement besides being the “good soldier” that signed the city’s letter to Kljajic.
The city argued Kljajic suffered “no adverse impact” by being barred from speaking to the park board, and that “it has retreated from the position it took in the Zupan letter.”
Rilkoff noted that the city has not rescinded the letter sent to Kljajic, or made its new interpretation of the code known to him.
“The city’s new interpretation does not address the fact that under the now seemingly rejected interpretation, Mr. Kljajic was denied the right to speak,” he wrote. “Any interference with that right must be strictly circumscribed with the onus being squarely on those who restrict it.”
In an interview, Kljajic told The Province he feels like “the little guy” going against a city with “unlimited legal resources.”
“This isn’t just about me,” Kljajic said. “This case could set precedents for employees in B.C. and across Canada.”
Kljajic’s lawyer, Dean Davison, argued that the city’s code is “uncertain and unsustainable.”
“I think it is important to make (code of conduct) policy very clear to every party, what employees can and can’t do,” Davison said. “It should not be open to interpretation.”
City spokesman Tobin Postma said the city will continue with the tribunal process, and Rilkoff’s Dec. 3 decision is a “technical procedural decision which does not speak to the merits of the case.”