In a recent decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024, the Supreme Court of Canada considered the applicability of the Canadian Charter of Rights and Freedoms to school boards and, in so doing, concluded that teachers, in their employment relationship with school boards, are protected by the right to be secure against unreasonable search or seizure under section 8 of the Charter. At the heart of the analysis, the Court held that public school boards in Ontario are inherently “governmental” for the purposes of section 32 of the Charter and, consequently, the actions of a school board in carrying out its governmental functions are required to be Charter compliant.
While much has been written about the decision and its impact on privacy rights in the workplace generally, the decision requires a closer read in terms of examining privacy rights in the context of professional regulation and the takeaways for regulators in understanding the ever-evolving reach of the Charter and its role in regulatory decision-making. As always, our analysis of the case starts with the facts.
Facts
The case centered on two teachers who had been disciplined by their school board employer for maintaining a private “log” that the employer (and other employees at the school) contended was creating a toxic work environment and constituted a breach of the school board’s “Respectful Workplace Policy”. According to the evidence, the log was stored remotely on a cloud-based server in a private account, and it was not accessible or saved to the school board’s server. The school principal had been made aware of the log’s existence and conducted an unsuccessful IT search of the schools’ internal databases. However, later in the school year, the principal visited one of the teachers’ classrooms, to return some teaching materials after class, and found the school board’s laptop was opened and was left unattended in the room. When he touched the laptop mousepad, the log appeared on the screen. The principal then took photos of the log on his cell phone, and the teachers’ laptops were subsequently seized and searched. As a result of the contents of the log, the school board reprimanded the teachers, in writing, for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice.
The Elementary Teachers’ Federation of Ontario (the “Union”) grieved the written reprimands, sought to have them rescinded, and requested that each teacher be awarded $15,000 for the breach of their privacy rights. Although the Union argued that the school board had violated the teachers’ right to privacy, it did not explicitly allege a Charter breach as part of the grievance. In terms of the search, the Union alleged three breaches of the teacher’s privacy: (1) the Board’s search of its IT platforms; (2) the principal’s search of the board’s classroom laptop; and (3) the searches conducted after the board seized both laptops. Ultimately, the arbitrator dismissed the Union’s grievance and concluded, among other things, that there was no breach of the teachers’ “diminished” reasonable expectation of privacy in the log when balanced against the board’s “legitimate interest” in addressing the issue of the toxic work environment allegedly caused by the teachers. The arbitrator’s decision was upheld on appeal to the Divisional Court, with the majority holding that the framework for analysis was not section 8 of the Charter, but rather the rights of employers and employees under the collective agreement.
The Union appealed the Divisional Court’s decision to the Court of Appeal for Ontario. In its decision, the Court of Appeal quashed the arbitrator’s decision and concluded that (1) section 8 of the Charter applied to the actions of the principal and the school board; (2) the teachers had a reasonable expectation of privacy; (3) the arbitrator erred in interpreting and applying the law concerning the teachers’ Charter right; and (4) the arbitrator reached an unreasonable decision.