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.
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