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Charter Protects (Ontario) School Board Employees

Published:

August 15, 2024

Author(s):

• David Fraser

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On June 21, 2024, the Supreme Court of Canada concluded – decisively – that the Canadian Charter of Rights and Freedoms applies to protect the privacy of employees of a public school board in Ontario in the context of a computer search.  In York Regional District School Board v. Elementary Teachers Federation of Ontario, the Court found the employer Board breached the section 8 of the Charter right to be free from unreasonable search and seizure of two teachers when it inadvertently accessed a private “log” about workplace issues the two teachers maintained in the cloud but accessed during work hours and via their work laptops. The practical question remains: in these circumstances, how do the section 8 Charter rights play out – bearing in mind principals can’t go get search warrants?

Reasonable Expectation of Privacy. The Court reiterated the well-settled analysis respecting how to determine whether there’s a “reasonable expectation of privacy” and whether a search is “reasonable” in the circumstances. To determine whether an individual has a reasonable expectation of privacy, courts and arbitrators must look at:

• The subject matter of the search.
• Whether the individual had a direct interest in the subject matter
• Whether the individual had a subjective expectation of privacy in the subject matter
• Whether the subjective expectation of privacy was objectively reasonable.

Whether the search is “reasonable” depends on the circumstances. The Court noted that some criminal law cases that have arisen in the educational context can be used to help inform the analysis but was clear that you can’t just apply the criminal law jurisprudence, such as R. v. Cole, to the workplace willy-nilly; the section 8 of the Charter analysis is contextual and thus must be adapted to “occupational realities.” For example, there’s no criminal law analogy to a principal performing their statutorily mandated tasks, noting the employer’s operational realities, policies and procedures rather than criminal law issues of exigency and law enforcement objectives, is the starting point for determining the reasonableness of an employee’s expectation of privacy. The Court also notes that one should be mindful of the fact that the consequences of a workplace search by an employer for employment purposes can be very different than for a criminal investigation. The Court essentially said the existing jurisprudence from workplace arbitrations where there is a “balancing of interests” between the employer’s and the employee’s rights are proper considerations for this analysis. Unfortunately, the Court didn’t actually apply this analysis in this case. It didn’t expressly say it was adopting the Court of Appeal’s analysis of this search – which focused on reasonable privacy expectations rather than the Charter analysis – but that’s implicit.

Closer Scrutiny. At the end of the day, the decision is a bit unsatisfying from a privacy point of view. The Court essentially said that for public sector employers, arbitrators must use the section 8 Charter analysis – but the analysis arbitrators already use will get them to the same place. This will mean a search will be more closely scrutinized and because the Charter is specifically engaged, there’s likely a wider latitude for judicial review.

Privacy Laws. It’s also interesting that none of the decisions, from the Divisional Court to the Supreme Court of Canada, even mentioned the Ontario privacy laws that apply to school boards and thus actions by principals: the Ontario Municipal Freedom of Information and Protection of Privacy Act. One would think this law would have some impact on the expectation of privacy a school board employee may have vis-a-vis their employer.

Public Sector. It’s important to remember this case is confined to public sector employers. The Charter clearly applies to public school boards in Ontario, and likely applies to public school boards in other provinces (though not necessarily to universities, health authorities and other entities that thought of as being “public sector”).

The Case

Two teachers believed another teacher was ineffective and unfairly favored by the school principal. Concerned about their performance reviews, one of the teachers sought union advice and was told to document their concerns. That teacher began a private log on their Google account, shared with the other teacher, accessible only to them via internet browser. Both teachers accessed the “log” via their school-owned and provided laptops. Although its existence was known within the school, its content remained private. Several other staff members reported a “toxic” environment and suspected the teachers were keeping a log. The principal, after consulting with the Board Superintendent and human resources, initiated a search but found nothing in the Board’s own files. On one day, the principal entered the classroom of one of the teachers and found their unattended laptop open, jiggled the mouse and it “woke up”. The principal saw the log, took photos with his phone of about 100 entries. The principal reported this to the Superintendent, confiscated the laptops and shared the log with the Board. Despite searches, no log files were found on the laptops themselves. The Board disciplined the teachers for improper conduct based on the use of Board technology to maintain the log during work hours. The Board gave the teachers written reprimands valid for three years.

The Decisions

The union grieved the discipline, seeking to rescind the reprimands and claiming $15,000 in damages for each teacher for privacy breaches. By the end of the arbitration hearing, over three years later, the reprimands were already removed from the teachers’ files. The case focused on the alleged privacy breach claim.

Arbitration. The arbitrator concluded that while the teachers had a subjective expectation of privacy in their log, this expectation was diminished due to its visibility on the workplace laptop. The principal and the Board’s actions were reasonable and justified, considering the circumstances and the Education Act’s objective of maintaining a safe and orderly school environment. Thus, the arbitrator held that the teachers’ privacy rights were not breached by the principal or the Board.

Divisional Court. The union sought judicial review. The majority of the Ontario Divisional Court decided the Charter did not apply in this workplace context and found the arbitrator’s decision reasonable. But a dissenting judge leaned heavily on the Charter to find the arbitrator’s decision unreasonable. That judge found the arbitrator was required to balance the teachers’ rights under section 8 of the Charter against the Education Act’s objectives of maintaining proper order and discipline in the school and developing co-operation and co-ordination of effort among the members of the staff of the school, and that allowing the Board to access “what are essentially the private thoughts and communications” of the teachers unjustifiably impaired the Charter rights of “teachers (and potentially other people in the workplace)”.

Ontario Court of Appeal. The Ontario Court of Appeal had a very different take from the majority of the Divisional Court. It concluded the Charter was engaged and the arbitrator’s decision was unreasonable. It found looking at the log was akin to looking at one’s diary, in which the teachers “were entitled to record their private thoughts – including complaints about co-workers and supervisors – for their own purposes and to expect that those thoughts would remain private.” They had a reasonable expectation of privacy in the log – and the principal breached it. The teachers made efforts to secure the log and it became available to the principal only due to inadvertence. Whether a search is reasonable needs to be looked at within the full context. Principals may have an increased duty when it comes to the safety of students, but they are agents of the employer when dealing with the workplace, even if it’s been characterized as “toxic.” The Court of Appeal found a Charter violation and quashed the arbitrator’s decision. The union appealed to the Supreme Court of Canada

Supreme Court of Canada. Much of the Court’s discussion revolves around whether the Charter applies to a school board, whether it applies in the employment context and whether it’s up to arbitrators dealing with a grievance under a collective agreement to address and apply the Charter.

• Charter. The Court agreed with the Court of Appeal that at least in Ontario, the Charter applies to school boards in all they do – including in managing their workplaces. As a result, the section 8 Charter rights of the teachers was engaged when the principal searched the laptop, and the reasonableness of that search had to be scrutinized in the context of that right.

• Arbitrators. The Court also made it clear that arbitrators have the ability – and the obligation – to determine Charter issues that are linked to matters properly before them and must act consistently with the Charter and its values. The Court also notes it’s an access to justice issue. This makes sense. Canadian courts are already over-burdened. Imagine the result if the Court had said “yes, the Charter applies to everything a school board does”, but you’d have to begin an arbitration to determine the issue about the collective agreement while at the same time going to a superior court to have the Charter question considered.
• Balancing of Interests. As to the reasonableness of a particular search, the Court largely approved the “balancing of interests” that is the lens through which labour arbitrators have generally adjudicated the question. With respect to this particular search, the Court did not revisit that analysis and noted the question of the teachers’ reprimands was now moot.

Please contact your McInnes Cooper lawyer or any member of our Education Law Team @ McInnes Cooper to discuss the impact of the Charter on your workplace management.

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