Under the Education Act and the Human Rights Code, Ontario public school boards are required to provide a discrimination- and harassment-free environment.[1] This is achieved, in part, by ensuring that complaints are taken seriously and handled with care.
Courts have underscored the school board’s duty to balance their right to conduct investigations against their employees’ right to privacy. For example, the Supreme Court of Canada (“SCC”) in R v Cole, 2012 SCC 53, considered whether an employer was entitled to access an employee’s workplace computer; and more recently, in Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476, Ontario’s Court of Appeal determined whether an employer was entitled to access a teacher’s password-protected personal account on a school-board-issued laptop.[2] These cases demonstrate that the answers to these issues are far from clear.
Employee Privacy and Public School Boards
The SCC first addressed the scope of an employee’s privacy rights on a school-board-issued device in Cole.[3] In that case, the Court concluded that Mr. Cole, a teacher at the school, had a reasonable expectation of privacy in his Internet browsing history on his board-issued laptop. In reaching its decision, the Court applied the “totality of the circumstances” test, which asks:
- What is the subject matter of the alleged 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 expectation of privacy objectively reasonable, given the totality of the circumstances?[4]
Writing for the majority, Justice Fish concluded that Mr. Cole had a reasonable, though limited, expectation of privacy.[5] The Court’s analysis considered the following:
- Internet-connected devices: Internet-connected devices were reasoned to increase the sensitivity of the data contained because these devices, by their very nature, “reveal [an individual’s] specific interests, likes, and propensities [...including] the information [they] seek out and read, watch, or listen to…”[6]
- Policies and practices: The school board’s internal policies diminished Mr. Cole’s privacy rights because they were sufficiently clear and explicit. Although the policy allowed Mr. Cole to use his laptop for personal use, it also claimed ownership of the data stored on the device.[7] The principal also reminded teachers annually that the files stored on the school’s network servers and hard drives were not guaranteed to be private, given the school’s technological limitations.[8]
- Ownership of the device: Device ownership alone was not sufficient to eliminate Mr. Cole’s expectation of privacy.[9] While the board owned the laptop, the nature of the information accessed on it maintained a reasonable expectation of privacy.
Altogether, Mr. Cole’s subjective expectation of privacy was objectively reasonable because the informational content was “meaningful, intimate, and organically connected to his biographical core.”[10] This factor outweighed the school’s ownership of the device, policies and practices, and technological limitations. Therefore, even in a workplace setting, the expectation of privacy could be significant if personal and private data are involved.
A decade after Cole, Ontario’s Court of Appeal clarified the scope of an employee’s privacy rights when using a school-board-issued device in Elementary Teachers. In that case, the court examined whether Ms. Shen and Ms. Rai, teachers at the school, had a reasonable expectation of privacy in a password-protected personal account that was accessed through a board-issued laptop. In determining that their subjective expectation of privacy was reasonable, the court considered the following:
- Potential to reveal personal information: The court described Ms. Shen’s log as an “electronic record of [her and Ms. Rai’s] private conversations.”[11] This supported a finding that her expectation of privacy was objectively reasonable because, as an electronic form of communication, it had considerable potential to reveal her personal information.[12]
- Biographical core: The court held that information connected to a claimant’s biographical core would support a reasonable expectation of privacy.[13] The court also clarified that the scope of an individual’s biographical core may include their private thoughts.[14]
- Effort to maintain privacy: Ms. Shen’s efforts to maintain the privacy of her logs supported a reasonable expectation of privacy.[15] Although she had inadvertently left the log open on her board-issued laptop, this did not diminish her privacy expectations.[16]
A Reasonable Investigation
Balancing employee privacy rights with the school board’s obligation to investigate is critical; however, ensuring that an investigation is conducted reasonably and thoroughly is equally essential. When determining whether a response to a complaint is reasonable, the following factors are evaluated (Laskowska v Marineland of Canada Inc., 2005 HRTO 30):
- Pre-complaint: Whether the employer was aware of issues of discrimination and harassment during the time of the incident? Whether the employer had an anti-discrimination and harassment policy and complaint mechanism in place? Whether management and employees were adequately trained?
- Post-complaint: Whether the employer addressed the complaint seriously, promptly, and sensitively, including whether they reasonably investigated the complaint; and
- Resolution of the complaint: Whether the employer reasonably resolved the complaint, given the circumstances? And whether the employer communicated their findings and actions to the Complainant.
Although the analysis will be fact-dependent, generally, damage awards may be reduced when an employer has a well-communicated and thorough investigation process. Consequently, school boards may want to consider the following:
Clear Policies
Workplace policies should outline internal and external investigation processes. This includes detailing the level of privacy an employee can anticipate, the procedures and scope for gathering evidence, and relevant notices and consent requirements.
Restricted Information Gathering
Employee information should be collected only if there is a legitimate objective or legal requirement for the information collection, the objective or requirement can be met in a minimally intrusive way, and employee consent can be obtained beforehand.
Provide Information on a Need-to-Know Basis
Employee information should be provided on a need-to-know basis. For instance, a witness who is being interviewed may not need to know the Complainant’s identity to describe what they observed, while a Respondent may need to know the Complainant’s identity to have an opportunity to respond fairly to allegations made against them.
Where new information is provided, parties must have an opportunity to respond.
Terms of Reference
A Terms of Reference describing the investigation’s methods, as well as defining the scope and objective of the investigation, should be provided to the parties. When new allegations or information arise, the Terms of Reference should be amended. This ensures that the parties have an opportunity to address the new allegations and to consent to the new information being provided.
Conclusion
Public school boards face the ongoing challenge of balancing their legal duty to investigate complaints with their employees’ right to privacy. While case law offers guidance, the boundaries of employee privacy, particularly concerning work-issued devices, continue to evolve. To minimize liability, school boards must establish clear policies outlining investigative processes, restrict the collection of information, limit access to sensitive information, and remain adaptive throughout the investigation. Ultimately, a well-communicated and thorough approach—one that respects privacy rights while fulfilling the duty to investigate—addresses complaints effectively while also upholding a workplace environment free from discrimination and harassment. By striking this balance, school boards can foster both accountability and trust within their institutions.
[1] Education Act, RSO 1990, c E-2, s 300.0.1; Human Rights Code, RSO 1990, c H-19, s 1.
[2] R v Cole, 2012 SCC 53 [Cole]; Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 [Elementary Teachers].
[5] Cole, supra note 2 at paras 56–58.
[7] Cole, supra note 2 at paras 54-55.
[10] Cole, supra note 2 at para 58.
[11] Elementary Teachers, supra note 2 at para 52.
[13] Elementary Teachers, supra note 2 at para 55.
[14] Elementary Teachers, supra note 2 at para 56.
[15] Elementary Teachers, supra note 2 at para 57.
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