On June 21, 2024, the Supreme Court of Canada released its much-anticipated decision in York Region District School Board v Elementary Teachers’ Federation of Ontario. This decision affirms that public school teachers in Ontario are entitled to their rights under the Canadian Charter of Rights and Freedoms (the “Charter”) when their employer performs search and seizure in the workplace.
a) Factual Overview
The Grievors, two elementary school teachers, were in continuous conflict with another newly hired teacher, Mr. JH. They claimed that Mr. JH had significant shortcomings in his performance and was receiving preferential treatment from the principal.
The Union advised the Grievors to keep notes regarding their concerns. They began keeping a log recording their concerns regarding Mr. JH. The log was kept on a personal, password-protected log stored in the cloud. It could be accessed from any computer with an internet connection but was not stored on the school board’s computer.
A number of colleagues became aware of this log and informed the principal. The principal had entered one of the Grievor’s classrooms for an unrelated reason when he saw that the Grievor’s school-owned computer was unattended. The principal jiggled the computer mouse, and the log appeared on the screen. About 100 entries in the log contained “much nastiness all the way through it.” The principal scrolled through the log and took pictures of it with his cellphone. He printed the pictures and used them in his investigation of the incident.
The Grievors received a letter of reprimand regarding the log and their treatment of Mr. JH. The Union opposed this discipline, alleging that the principal’s actions in accessing the log violated the Grievors’ right to privacy by accessing their private digital information without cause.
b) Arbitrator’s Decision
Arbitrator Gail Misra upheld the discipline, concluding that there was no breach of the Grievors’ “diminished” reasonable expectation of privacy in the log when balanced against the School Board’s “legitimate interest” in addressing the issue of the toxic work environment allegedly caused by the Grievors (paras. 262-63).
c) Judicial Review – Divisional Court
On judicial review, the majority of the Divisional Court upheld the reasonableness of the arbitrator’s decision. The majority held that no Charter issues arose from the search because an employee does not have a s. 8 Charter right (the right to be secure against unreasonable search and seizure) in a workplace environment, unlike in a criminal context. The dissent found that the Charter applied and the arbitrator’s decision was unreasonable because she misunderstood the nature of the s. 8 right.
d) Court of Appeal
The Court of Appeal unanimously allowed the appeal and quashed the arbitrator’s decision. It held that the majority of the Divisional Court erred in concluding that s. 8 did not apply. The Court of Appeal conducted a correctness review and held that the principal’s actions in reading the log, taking screenshots of it, and sending it to the Board violated the grievors’ reasonable expectation of privacy and constituted an unreasonable search under s. 8 of the Charter.
e) Supreme Court of Canada
The question before the Supreme Court was whether school boards in Ontario are obligated to apply s.8 of the Charter when undertaking a search in the workplace.
i. Majority Decision
A majority of the Supreme Court confirmed the Court of Appeal decision that the Charter applied. The Court did not confirm the Court of Appeal’s finding that there was a breach of s.8 in the circumstances.
The York Region District School Board, and other Ontario school boards like it, are created and governed by Ontario’s Education Act. They perform a function that is delegated to them by the government. Public education is a governmental function according to the constitution; if school boards did not administer public education, the government would be obligated to take on these functions itself.
The Charter applies to organizations that are governmental in nature, or over which the government exercises a sufficient degree of control to make the entity akin to a government. School boards are inherently governmental organizations, acting as an arm of the government, and are therefore subject to the Charter. The principal, acting as an agent of the school board, was also required to comply with the Charter.
It was argued that the arbitrator’s “balancing” analysis met the requirements under s.8 of the Charter even though she did not expressly mention the Charter. The majority of the Supreme Court disagreed and found that the arbitrator must expressly address s.8 in her analysis and reference both arbitral jurisprudence and s.8 jurisprudence when making her decision. The Court went on to say that the normal remedy would be to remit the issue back to the arbitrator to reconsider applying the s.8 analysis. However, at this point the issue was moot and so the court opted to simply set aside the arbitrator’s decision.
ii. Insights
The Supreme Court’s decision is significant in that it confirms the application of the Charter to Ontario School Boards. This has implications for other public organizations that are similarly creatures of statute.
Does the decision mean employers conducting workplace investigations must apply the same standards as police investigations? The short answer to that is “no.” However, they must be cognizant of individual rights under s. 8 and consider that. The Supreme Court expressly identified that the analysis is a balance and the severity of the implications of a decision about an individual is a factor to consider. Workplace discipline is not the same as the possibility of someone losing their liberty.
In all cases where a search is conducted in the workplace by a “state actor,” the “totality of the circumstances” must be considered. Four lines of inquiry serve as a guide:
- an examination of the subject matter of the search;
- a determination as to whether the claimant had a direct interest in the subject matter;
- an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
- an assessment as to whether this subjective expectation of privacy was objectively reasonable
The Court noted that employees may not have a reasonable expectation of privacy in their work computer and referenced the prior decision in R. v. Cole:
[103] Inevitably, the reasonable expectation of privacy takes its colour from context. Thus, the employer’s operational realities, policies and procedures may affect the reasonableness of an employee’s expectation of privacy (Cole, at para. 54). For example, in Cole, this Court recognized that the storing of personal information on a computer owned by the employer and the existence of a policy stating that data so stored belongs to the employer would tend to diminish the reasonable expectation of privacy (para. 52). On the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy (para. 54).
What is the standard to be applied in a labour context? For now, the Supreme Court has suggested a small change – the arbitrator must expressly consider section 8 in addressing privacy rights in the workplace:
[105] I hasten to add that what may be considered proportionate in a criminal context, where penal liability is at stake, may look different in a labour relations context where the consequence, albeit serious, does not threaten liberty. In evaluating the reasonableness of the impugned search at the second step of a s. 8 analysis, arbitrators should have regard to employment relations under the terms of the collective agreements. The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis. There exists a considerable body of arbitral decisions regarding privacy in the context of collective agreements that arbitrators may properly have regard to in conducting a s. 8 analysis (see, e.g., Doman Forest Products Ltd. and I.W.A., Loc. 1-357, Re (1990), 13 L.A.C. (4th) 275 (B.C.); Toronto Transit Commission and A.T.U., Loc. 113 (Belsito) (Re) (1999), 95 L.A.C. (4th) 402 (Ont.)).
[106] The effect of this decision is not to displace existing arbitral jurisprudence, but rather to ensure that it respects Charter rights. Arbitral jurisprudence now encompasses a considerable body of decisions that reflect a great breadth of experience; this will continue to play an important role in resolving grievances arising under collective agreements. However, such decisions should also be taken in accordance with the direction in Conway to analyze Charter rights when they apply. This must inform their decision as to the grievance under the collective agreement. [emphasis added]
These paragraphs suggest that not much may change in the arbitral landscape. As for implications for the application of other sections of the Charter on School Boards and other public employers, that is a bigger question beyond this article’s scope.