School Board Update
Supreme Court of Canada Addresses Workplace Privacy Rights in Ontario Schools
Date: July 16, 2024
On June 21, 2024, the Supreme Court of Canada rendered its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario. The decision establishes that Ontario school boards are “government”—and thus subject to the Canadian Charter of Rights and Freedoms (Charter)—and provides guidance on how alleged breaches of an employee’s Charter-based right to privacy should be assessed.
Case History
The Elementary Teachers’ Federation of Ontario (Union) filed a grievance on behalf of two teachers (Grievors) pursuant to the collective agreement between the Union and York Region District School Board (Board), resulting in the consensual appointment of an arbitrator.
The events underlying the grievance involved a school principal’s discovery, by happenstance, of an online log created and authored by the Grievors (Log). The Log contained information about, and evidence of, their experiences with, and negative views about, their colleagues. Although the Log had been stored on the Grievors’ personal Google Cloud accounts, they had both, from time to time, used Board-owned computers at the school to edit the Log. The principal, in the course of his duties, found the Log left open on a Board classroom computer.
The arbitrator had to decide whether the Board violated the collective agreement and the Grievors’ privacy rights by investigating and disciplining the Grievors based in part on information contained in the Log. The arbitrator found:
- the classroom computer belonged to the Board, was for classroom use, and was not for the Grievors’ exclusive use
- the Grievors had accessed the Log on the Board’s classroom computers
- one of the Grievors left the Log open and accessible on a Board classroom computer
- the principal was aware of the toxic environment within the teaching team and was aware of the Log prior to his inadvertent discovery of it on the Board computer
- the principal was empowered by s. 265 of the Ontario Education Act to utilise any Board computer and seize the Log
Having considered the principles and analytical framework established by the Supreme Court in R. v. Cole and R. v. M. (M.R.) (decisions that dealt with criminal misconduct in schools) the arbitrator concluded that the Grievors had a diminished reasonable expectation of privacy, which the principal did not breach. The arbitrator dismissed the Union’s grievance. The arbitrator adopted certain principles from Charter caselaw but did not analyze the case as a “Charter breach” because the parties did not argue the case in that way.
The Union sought judicial review of the arbitrator’s award. A majority of the Divisional Court found that the arbitrator’s award was reasonable, concluding among other things that the arbitrator reasonably considered and applied the caselaw and reasonably found that, in the totality of the circumstances, the Grievors’ expectation of privacy was diminished.
The Union appealed the Divisional Court’s decision to the Ontario Court of Appeal. In 2022, the Court of Appeal overturned the Divisional Court’s decision and quashed the arbitrator’s award. At the Court of Appeal, the case was argued by the Union (in part) in relation to the right under s. 8 of the Charter to be free from unreasonable search and seizure.
In its decision, the Court of Appeal assumed that the Charter applied to school boards, the Grievors had a s. 8 Charter reasonable expectation of privacy in the workplace, and the arbitrator’s award incorrectly applied the law to the facts and should be quashed. The Court of Appeal held that the arbitrator erred in her assessment and application of the “totality of the circumstances” test and thereby erred in her assessment of whether the Grievors had a “reasonable expectation of privacy” and whether it had been breached.
The Board sought and was granted leave to appeal to the Supreme Court of Canada. The matter came before the Supreme Court in October 2023.
Ontario School Boards Are Government
The Supreme Court unanimously declared that Ontario school boards are subject to the Charter because public education is inherently a governmental function and, by their very nature and in light of the provisions of the Education Act, Ontario school boards are manifestations of the government. The Court confirmed therefore that all actions of Ontario school boards are subject to Charter scrutiny.
Despite the fact that the case had not been argued at arbitration as a Charter claim, the Supreme Court majority opinion held that the arbitrator should nonetheless have decided the case by subjecting it to a full Charter analysis.
The Supreme Court expressly stated that it was leaving for another day “the question of the applicability of the Charter to public schools in other provinces, or to the operation of private schools” (at para. 84).
The Charter Right to Privacy in the Workplace
In obiter, the Supreme Court majority opinion provided guidance on how workplace privacy claims under s. 8 of the Charter should be addressed by decision-makers. The Court noted that a reasonable expectation of privacy takes its colour from the context—and that decision-makers should be cautious in adapting the s. 8 framework from the criminal law context to the employment context. The relevant contextual factors in the workplace privacy analysis can include factors such as an employer’s operational realities, policies and procedures, the level and degree of regulation, and the terms of the relevant collective agreement.
The Court also took care to confirm that its decision does not displace existing arbitral jurisprudence dealing with workplace privacy claims; rather, the Court’s stated goal and an adjudicator’s task going forward is to ensure that Charter rights are analyzed where they exist.
Key Takeaways
This decision serves as a reminder that entities that are subject to the application of the Charter should be mindful of Charter principles and protections, and how those might apply in the workplace/employment context, when carrying out their operations.
York Region District School Board was represented at the Supreme Court of Canada by Hicks Morley’s Frank Cesario, Sean Sells and Lesley Campbell.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
