In Elementary Teachers Federation of Ontario v. York Region District School Board, the Ontario Court of Appeal held that section 8 of the Charter applies to the actions of principals conducting workplace investigations of interpersonal conflict between teachers. Further, the Court found that the Board’s investigation violated the teachers’ reasonable expectation of privacy and constituted an unreasonable search under section 8. The Court of Appeal unanimously allowed the teachers’ appeal from the Divisional Court, which had upheld the Labour Arbitrator’s decision that the search was reasonably authorized by the Education Act.
The Facts
A York Region School Board principal began investigating allegations that two teachers were creating a toxic workplace environment. The Principal had received several reports of a “log” that was being kept by the two teachers on their Board-issued classroom computers, and that this log contained negative statements about a third teacher and that teacher’s relationship with the Principal. The Principal also heard reports from a few other school staff members that the two teachers were spreading negative rumours, inflicting a toll on the mental health of school staff. A staff member reported that one of the two teachers had read the log aloud to her and confirmed that it was vitriolic.
During the investigation, the Principal initiated several searches of the class computers and the two teachers’ shared Google drive folders via the Board’s IT department. These searches failed to turn up the log, which was being kept by the two teachers on a shared Google Doc hosted on their personal Google accounts. However, the teachers were accessing their personal Google account on their classroom laptops.
The Principal happened on the log by chance – one of the teachers had left the Google Doc open on their classroom computer, which had been left on and logged in when one of the two teachers left at the end of the school day. The Principal entered the classroom at the end of the day, saw that the computer was open, and touched its mousepad. A Google Doc called “Log Google Docs” was open on the screen. The Principal read through the log and took about 100 pictures with his cellphone to document its contents.
The Principal informed his Superintendent, who then instructed that the Principal confiscate the two teachers’ laptops. The Board then issued letters of discipline to the teachers for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. The Board placed reprimands on their files for three years. The teachers’ union, Elementary Teachers of Ontario (ETFO) grieved the discipline, initiating the proceedings.
Arbitrator and Divisional Court Decisions
The Arbitrator found that the two teachers had a reasonable expectation of privacy in the contents of the log, but that the Board’s search was reasonably authorized by the Education Act and no section 8 Charter breach had occurred.
The majority of the Divisional Court upheld the Arbitrator’s decision as reasonable. O’Bonsawin J wrote at para 103 that, “unlike in a criminal context, in a workplace environment, an employee does not have a section 8 right to be secure against unreasonable search and seizure.” Instead, the Arbitrator was reasonable in weighing a balance between a “diminished expectation of privacy against the duty of the employer to manage the workplace,” and reached a reasonable conclusion in this case.
The Ontario Court of Appeal
In a unanimous decision written by Huscroft J.A., the Ontario Court of Appeal rejected the majority decision of the Divisional Court and allowed ETFO’s appeal, quashing the Arbitrator’s award.
As the Arbitrator’s decision involved the application of section 8 Charter jurisprudence, Huscroft J.A. held at paras 33-37 that the appropriate standard of review is correctness, citing R. v. Shepherd at para 20 as controlling.
The Charter Applies to Board Employees
At paragraph 42, Huscroft J.A. categorically rejects O’Bonsawin J’s holding that section 8 of the Charter does not apply to employees in a workplace environment. On the question of the applicability of the Charter to school boards in the first place, the Court of Appeal proceeded on the assumption that it does, at paras 38-41. Noting that while a majority of the Supreme Court has never conclusively held that the Charter applies, Huscroft J.A. refers to the Cole decision where it was conceded by the Crown that the Charter applies to schools and the Supreme Court had also proceeded on that assumption.
The Proper Test – Section 8 Jurisprudence
Accordingly, Huscroft J.A. only considers the section 8 Charter jurisprudence in determining the outcome of this appeal: did the actions of the Board violate the two teacher’s right to be free from unreasonable search and seizure? At paras 46-48 the Court lays out the framework for the reasonable expectation of privacy analysis, citing the four-part test from R. v. Edwards:
- What was the subject matter of the search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?”
Identifying the “key question” as the fourth, whether there is an objectively reasonable expectation, Huscroft J.A. cites a list of non-exhaustive factors set out by R. v. Tessling that assist in providing an answer:
- the location of the search;
- whether the subject matter was in public view;
- whether the subject matter was abandoned;
- whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
- whether the investigative technique was intrusive in relation to the privacy interest;
- whether the investigative technique itself was objectively unreasonable; and
- whether the information exposed any intimate details of the claimant’s lifestyle, or information of a biographical nature.”
Subject Matter: The Teachers’ Private Conversation
Huscroft J.A. finds at paras 50 and 52 that the two teachers’ “personal messages to one another – their electronic conversation” was the true subject matter of the search. The Arbitrator had found that the subject matter was the log, but the section 8 analysis requires a more flexible understanding. Since the log was “an electronic record of their private conversations,” there was a high potential that personal information about the teachers would be revealed to a reader.
The Teachers’ Had a Direct Interest
The Court of Appeal holds, at para 51, that the teachers “had a direct interest in the information contained in their log: each contributed to the personal conversation that the Board used to discipline them.” There is no further discussion of the teachers’ direct interest.
The Teachers Had a Subjective Expectation of Privacy
Continuing in para 51, the Court of Appeal finds that the teachers had a subjective expectation of privacy over the contents of their conversation. The teachers had “done all that they could to protect the privacy of their communications,” by password protecting the log and restricting its use to themselves. They therefore expected that the conversation was private, and that it would remain so.
Huscroft J.A. held that the teachers’ decision to use Board computers to access the log did not diminish their subjective expectation of privacy over their electronic conversation. Further, the failure to shut down the computer was apparently an irrelevant factor in assessing their subjective expectation.
Objective Reasonability of the Teachers’ Subjective Expectation of Privacy
Since there was a high likelihood that the log would reveal personal information, at paras 52-57 Huscroft J.A. holds there was an objectively reasonable expectation of privacy, deserving (and demanding) protection from unreasonable search.
The Arbitrator erred by finding that since the log did not contain “biographical core” information it was afforded a diminished protection. At paras 55-56, Huscroft J.A. stresses that the nature of the information is not determinative of the privacy right – even if it is not “biographical core” information, there can still be an objectively reasonable expectation of privacy. Regardless, the Court of Appeal (implicitly) finds that the log was information about the teachers’ “biographical core,” since it contained their private thoughts and complaints about their co-workers and supervisor.
At para 57, the Court of Appeal lists several facts that may have diminished the objective reasonability of the teachers’ expectation of privacy: if the teachers had intentionally given access to more individuals; if they had stored the log on shared Board computers; or if they were “otherwise indifferent to their privacy.” However, Huscroft J.A. rejects the Arbitrator’s conclusion that the objective reasonability of the expectation was diminished due to the teachers leaving the log open in plain sight – in fact it had “skewed her analysis of the reasonableness of the search.”
The Education Act Can Authorize Workplace Searches
First, the Court found the search was authorized by law, with the Court of Appeal citing R. v. M. (M.R.) and R. v. Jarvis for the “well-established” authorization of principals to search students. The Court of Appeal assumes at para 61, without deciding on the issue, that the Education Act can also authorize the search of “others who may be in the school, including teachers.” Huscroft J.A. strongly cautions, however, that “this power may seldom be exercised” on teachers.
For the second step, the Court of Appeal did not discuss the reasonability of the Education Act.
The Education Act’s Powers Were Unreasonably Exercised Here
The bulk of the Court’s analysis is on the third step, assessing the actual exercise of the authority conferred by section 265 of the Education Act.
At paras 61-62, the Court of Appeal notes that the restrictions imposed on the exercise of authority by state actors in a criminal law context are much higher than in the regulatory context – and that principals ought to be evaluated by the latter’s less exacting standards. When searching students, for example, there is an accepted demand for flexibility and speed to ensure the safety of pupils in the Principal’s charge. In this case there was no such “dangerous situation that required urgent action.”
Critically, at para 60, the Court of Appeal observes that urgent action is likely not required in the search of a teacher, or other school staff, unless preserving student safety or well-being is the purpose of the search. Principals are not responsible for the general welfare of teachers or staff in the same way they are for students, and there is therefore a lowered need for exigent action. At para 64, Huscroft J.A. holds that “concerns arising out of employment relationships in the workplace” will likely not be enough to justify the kind of power Principals have when searching students – and “branding workplace relationships ‘toxic’ does not alter this.”
The Court of Appeal does not give much (if any) weight to the negative effects on the workplace allegedly created by the two teachers. Instead, at para 70 the analysis concludes by characterizing the Principal’s investigation as an intrusion on their “private thoughts … not to be mined by the school Principal, no matter how innocently the Principal may have come upon the log or how pressing his concerns were.”
Commentary
School boards must now be extremely cautious when conducting computer searches of employees if the preservation of student safety or well-being is not the aim of the search. Otherwise, boards risk running afoul of the Charter’s section 8 privacy guarantees. This case illustrates how principals must be very careful when they are acting in their routine “employee management” capacity. Section 265 of the Education Act gives principals many duties and powers to limit others’ rights, but those powers must only be executed when they strike the right balance between validly competing rights.
This decision does not appear to limit the kinds of routine operations that IT departments conduct, such as remotely accessing hard drives for maintenance or document recovery. The decision also should not limit the ability for boards to look through board-hosted hard drives or network drives, so long as employees’ personal files are not the target of a search.
The decision highlights the importance of electronic monitoring policies that establish clear expectations for both employers and employees. If a board will look through personal files on a board computer, employees should be put on notice. Otherwise, the employees will have an objectively reasonable expectation that their personal files will not be examined or scrutinised in day-to-day circumstances. Further, boards should strive to train their principals on the fundamentals of privacy, as these issues become more prevalent in an ever-digitizing world.
About the Author
Andrew Easto is an articling student at Toronto District School Board.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.