Privacy rights in the workplace: Supreme Court expands charter protections for public school teachers
By Chad Sullivan and Chiara Nannucci
Introduction
A recent Supreme Court of Canada decision (York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22) has once again highlighted the ongoing evolution of privacy law and its influence on the outcome of labour arbitrations.
In this decision, the Supreme Court of Canada (“SCC”) extended the scope of s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) holding that s. 8 of the Charter applies to School Boards in Ontario (and the actions of their principals on their behalf) as a governmental entity.
Consequently, the SCC held that public school teachers in Ontario[1] are protected from unreasonable search and seizure at their place of employment under s.8 of the Charter.
Facts
Two teachers, Ms. Shen and Ms. Rai (the “Grievors”), employed at a public school within the York Region District School Board (the “Board”), developed concerns about the teaching effectiveness of some Grade 2 teachers and the perceived preferential treatment they were receiving from the school’s principal. Fearing that such favoritism might negatively impact their performance evaluations, Ms. Shen, on the Elementary Teachers Federation of Ontario (the “Union”)’s advice, started a private log with her concerns via her personal Gmail account, which she later shared with Ms. Rai. The log was stored in the cloud, was separate from the school’s systems, and was accessible through a private internet account.
Upon discovering the log, the principal contacted IT and HR, which found no record of it on any of the School Board’s devices.
The principal entered Ms. Shen’s classroom while Ms. Shen was absent, and found Ms. Shen’s laptop open. As the principal touched the laptop’s mousepad, a document called “Log Google Docs” appeared on the screen. The principal read the content, took photos with his phone, and then shut down the laptop. After informing the Board superintendent of the “inappropriate” information he had found, they agreed that the superintendent should seize the laptop. Subsequently, Ms. Rai’s Board laptop was also seized.
Following these events, the Board issued written reprimands to the Grievors. The Union filed a Grievance, asserting that the Board had violated the Grievors’ right to privacy without cause and had used this information as the basis for disciplining them.
Arbitrator’s decision
The arbitrator, Gail Misra, examined whether the Grievors had a reasonable expectation of privacy in their log, questioning if the Principal’s and Board’s actions constituted a breach of privacy. While s. 8 of the Charter was not directly addressed, some of its principles were considered.
The arbitrator first analyzed whether the Grievors had a reasonable expectation of privacy. In her analysis, she considered that the search involved the Grievors’ private log, initially believed to be on a Board’s classroom laptop; the Grievors were the logs sole users; and the log was password-protected and not exclusively stored on the Board’s devices. The arbitrator concluded that although their expectation of privacy was reasonable, it was reduced because the log was found in “plain view” on a Board laptop and the information contained in the log was neither personal nor intimate.
Citing R. v. Cole, 2012 SCC 53, the arbitrator concluded that there were no breaches of the Grievors’ diminished expectation of privacy in the log, as they were outweighed by the Board’s legitimate interest in addressing the alleged toxic work environment. Specifically, the arbitrator ruled that the Board’s search of its data files was reasonable for it was conducted under section 265 of the Education Act, R.S.O. 1990, c. E.2. Balancing the employees’ privacy with the Board’s responsibility to manage the school, the arbitrator concluded that the search was justified, finding that the Board had reasonable cause to conduct the search to maintain order and discipline within the school.
Supreme Court of Canada
After decisions by the Ontario Superior Court and Court of Appeal, the SCC ultimately quashed the arbitrator’s decision and would have remitted it back to the arbitrator, to properly consider a s.8 Charter analysis, to determine whether the search and seizure infringed the school teachers’ Charter rights.
However, whereas the written reprimands had been expunged under the collective agreement’s sunset clause, the matter was moot and the decision of the arbitrator was simply set aside.
While the SCC held that s.8 of the Charter applies to School Boards in Ontario, it urged caution against simply transposing the s.8 Charter framework from the criminal law context (as delineated in cases like R v. Edwards, [1996] 1 S.C.R. 128 and R v. Cole, 2012 SCC 53) to the employment law context.
This makes sense, as an employer cannot obtain a court order or warrant when it needs to investigate as part of its managerial obligations. Nor are the stakes as high – no one’s liberty at stake in an employment law dispute.
The SCC held that the s.8 Charter analysis in the employment law context should take into account the following factors to determine whether any particular search performed by a government employer is legal:
- Whether there is a reasonable expectation of privacy. Here courts / labour arbitrators are to consider all the circumstances including:
- An examination of the subject matter of the search;
- A determination as to whether the claimant had a direct interest in the subject matter;
- An inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
- An assessment as to whether this subjective expectation of privacy was objectively reasonable.
- Whether the search and seizure was reasonable.
As can be seen from the list of factors above, an employer’s policies can potentially play a significant role in diminishing an employee’s expectation of privacy – especially if clearly worded and communicated effectively.
On the other hand, practices such as allowing employees to use work laptops for personal purposes may weigh in favour of an employee having a reasonable expectation of privacy.
Key takeaways
The implications of privacy law are continually evolving and can significantly influence employment and labour arbitration decisions.
Employers in the government sector must be mindful that the Charter may apply when it is investigating or searching its company owned equipment as part of a human resources issue.
Further, an employer’s policies and practices can have a real impact on whether its investigative efforts are ultimately upheld as legal by a judge / arbitrator or whether such efforts may be all for nothing.
[1] The SCC explicitly declined to rule whether all public schools, across all provinces, are subject to the Charter.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour and Employment Group.
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