In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court of Canada (“SCC”) held that Ontario public school boards are “inherently governmental” for all purposes, and therefore fall within section 32 of the Canadian Charter of Rights and Freedoms (“Charter”). As a result, the Court held that in the circumstances of this case, a principal committed an unreasonable search within the meaning of section 8 of the Charter when he viewed and took pictures of a password-protected private Google-document containing work-related concerns. This was in spite of the fact that the principal found the document open on a teacher’s Board-issued laptop when he pressed on the touchpad.
The grievance did not explicitly allege a Charter violation, and according to the Court majority, the arbitrator did not consider whether the Charter applied. Rather, the arbitrator applied the established arbitral approach of balancing privacy interests in the workplace and dismissed the grievance.
On judicial review, the Divisional Court upheld the arbitrator’s decision as reasonable and found that section 8 does not apply in a workplace context.
The Court of Appeal quashed the arbitral decision and overruled the Divisional Court by holding that the Charter applied and the search was unreasonable under section 8.
The SCC’s majority conducted a correctness analysis and held that section 8 of the Charter applied, and was breached. While the arbitral decision was set aside, it was not remitted, as the issue of discipline was moot.
Facts
Two teachers (“Grievors”) at a public school had concerns about another teacher receiving preferential treatment from the principal. After raising concerns with their Union representative, the Grievors were told by the Union to maintain notes about their concerns. Following this advice, the Grievors kept a private log on their personal Gmail accounts, which was stored as a Google Document. The log was not saved on a workplace drive or on a board-issued laptop.
The principal heard from other staff members that the Grievors were keeping a log containing “toxic” comments about the workplace (para 11). Upon entering one of the Grievor’s classrooms, the principal saw that her Board laptop was open and touched the mousepad. The log appeared on the screen and the principal scrolled through it, taking screenshots with his cellphone. According to the principal, the log contained “much nastiness all the way through it” (para 13). The principal notified the school board who instructed him to seize the laptop and send along his photos for investigation. The Grievors subsequently received written reprimands from the school board for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. The Union grieved the written reprimands, claiming that the school board violated their privacy rights without reasonable cause and used this as a basis to discipline the Grievors.
Reasons
The SCC decision addressed three issues, as discussed below:
Issue 1: Does the Charter Apply?
The SCC held that Ontario school boards are “inherently governmental” and subject to the Charter pursuant to the first branch of the test set out in Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. An entity that is found to fall within that branch is governmental for the purposes of Charter applicability, meaning that that all of that entity’s activities are subject to the Charter. The SCC did not address whether school boards in other provinces are similarly subject to the Charter.
The SCC provided further comments that constituted “general guidance” in obiter on the application of section 8 and the privacy of school employees (para 96). The SCC stipulated that an employee’s “reasonable expectation of privacy” in the employment context may be informed by an employer’s “operational realities, policies and procedures” as well as a principal’s statutory mandate to maintain order in the school (para 98). Additionally, an analysis of the reasonableness of a search or seizure under section 8 must first consider whether there is a reasonable expectation of privacy based on the “totality of the circumstances” (paras 101-102). Then, it must determine whether the search or seizure was reasonable.
Issue 2: What is the standard of review?
The SCC held that the standard of review is correctness as it was a constitutional question that requires a final and determinate answer.
Issue 3: Should the arbitrator’s award be set aside?
The SCC found that the award must be set aside because the arbitrator applied the wrong conceptual and analytical framework in failing to appreciate the constitutional nature of the issue. However, the disciplinary issue was moot as the written reprimands were removed from the Grievors’ files pursuant to the sunset clause in the applicable collective agreement.
Accordingly, labour arbitrators are expected to proactively perform an analysis consistent with the relevant Charter provision where an individual’s constitutional rights are affected. It is insufficient for an arbitrator to solely apply the arbitral privacy framework at common law or any other analytical framework.
Analysis and Implications
Generally, this case suggests that all Ontario public school boards ought to conduct a review of their policies and procedures to ascertain whether any Charter rights and freedoms are implicated. Ontario school boards will want to ensure they have clear policies regarding ownership over both employer-issued technology and data stored on those devices. It would also be advisable to develop policies relating to searches that may have criminal and/or employment-related implications.
It will also be prudent for school boards to deliver training to administrators on conducting reasonable searches and seizures for disciplinary purposes. This training will want to consider searches that may have criminal implications, in addition to those undertaken purely for disciplinary/employment purposes.
It is likely that arbitrators will apply the framework in this decision when adjudicating privacy-related grievances in respect of Ontario school boards.
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