The Supreme Court of Canada recently ruled that Ontario public school boards are subject to the Charter, including the actions carried out by Ontario school principals. York Region District School Board v Elementary Teachers' Federation of Ontario 2024 SCC 22 (Decision) dealt with three school district searches of a teacher's private password protected log communications which had been stored in the Cloud but written via the school district laptop computer: one was conducted by the school principal and the two others were conducted by the school district's IT.
THE STORY
In 2014 - 2015, two newly employed Grade 2 teachers, Elena Shen and Manreet Rai (" the Teachers"), who were part of four-teacher team, felt that JH, another newly hired teacher, was not contributing sufficiently to the team and was perceived as favoured by school principal Pettigrew. The Teachers did not share their concerns with the principal but spoke to their union.
Having been advised by the union to keep notes of her concerns, Shen used the Board's laptop computer and internet to access her private Gmail account to create a log. She then shared the log with Rai through Rai's private Gmail account.
The log was not saved on a Board laptop nor workplace drive; it was stored 'in the cloud' as a private Google Docs document, through a private internet account unrelated to the Board.
Around Thanksgiving 2014, Principal Pettigrew got wind of Shen's log which raised toxic work-environment concerns.
In December 2014, Principal Pettigrew entered Shen's classroom to return some teacher materials. Shen was not present. Seeing the laptop open, he touched the mousepad, saw the log that opened on the screen, scrolled through, and read it. The principal then took screenshots of the log and shut down the laptop. The log included a record of events made by the Teachers from September 12 to December 16, 2014. The school district subsequently seized the Teachers' laptops.
SEARCHES CONDUCTED BY THE SCHOOL DISTRICT AND ENSUING EVENTS
The school district conducted three searches:
Search #1 The principal's search of Shen's school district classroom laptop;
Search #2 The IT Services' search of the Board's IT platforms (to see whether a log in fact existed)
Search #3 Forensic search of the computers used by the Teachers.
The Teachers' log communications led the school district to issue written reprimands to the Teachers, which the union argued violated their right to privacy without reasonable cause. (Pursuant to a collective agreement "sunset clause", the reprimands were eventually removed from the Teachers' records.)
At the grievance arbitration, the parties focused on whether the Board's investigation breached the collective agreement. Arbitrator Gail Misra, who was not asked to consider whether s. 8 of the Charter had been violated (but who did consider principles derived from s. 8 of the Charter), dismissed the grievance, finding no breach of the Teachers' reasonable expectation of privacy when balanced against the school board's interest in managing the workplace.
COURT HISTORY
In 2020, the matter proceeded to judicial review. The majority of Ontario's Superior Court of Justice, Divisional Court upheld the reasonableness of the arbitrator's decision finding that no Charter issues arose from the search because an employee, unlike in a criminal context, did not have the right under s. 8 of the Charter to be secure against unreasonable search or seizure in a workplace environment. The dissent said the Charter applied.
In 2022, Ontario's Court of Appeal unanimously allowed the union's appeal, quashed the arbitrator's decision finding the searches to have been unreasonable under s. 8 of the Charter.
On June 21, 2024, the majority of the Supreme Court set aside the arbitrator's decision for failure to have taken into consideration s. 8 of the Charter; the school board's appeal was dismissed.
SECTION 8 OF THE CHARTER: RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE FOR ONTARIO SCHOOL BOARD EMPLOYEES
Ontario school board employees, including teachers, benefit from section 8 of the Charter which states, "Everyone has the right to be secure against unreasonable search or seizure."
Because Ontario school boards are "manifestations of government", section 8 applies to Ontario government employees who thus cannot be subject to unreasonable searches and seizures by their employer:
- a government employee's reasonable expectation of privacy "takes it colour from context."
- The context in which employee personal information is placed on an employer-owned computer is important: to the extent they concern employee computer use, government workplace policies, practices, and customs are relevant.
- In relation to Ontario school boards, their 'operational reality', policies and procedures may affect the reasonableness of their employees' expectation of privacy.
- To demonstrate how this principle applies in the work setting,
the majority gave two examples, referring to its 2012 ruling in R v
Cole, 2012 SCC 53:
- 'operational realities' may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information such as the storing of personal information on a computer owned by an Ontario school board by the existence of a policy stating that data so stored belongs to the school board (see R. v Cole 2012 SCC 53 at para. 52);
- on the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy (R. v Cole 2012 SCC 53 at para. 54).
In evaluating the reasonableness of a work-related search, Ontario school boards should also have regard to collective agreement terms and the arbitral case law on the "balancing of interests" of management rights versus privacy rights.
Additionally, section 8 Charter case law is clear that the assessment of an employee's reasonable expectation of privacy does not depend on the content but rather, what matters is the potential for a search to reveal information touching on an employee's biographical core and that this type of information, when contained on Internet-connected devises, tends to reveal one's specific interests, likes, and propensities.
DOES THE CHARTER APPLY TO ALBERTA SCHOOL BOARDS?
The Decision relates specifically to Ontario public school boards. The Court left for another day the applicability of the Charter to public school boards in other provinces.
Alberta's Court of King's Bench have held that the Charter does not apply to Alberta school boards: Calgary Roman Catholic Separate School District No. 1 v O'Malley, 2007 ABQB 574 and Hamilton v Rocky View School Division No. 41, 2009 ABQB 225.
It is possible that Alberta courts could (depending on how a Court were to apply the legal test in Eldridge) apply a similar analysis (as to the applicability of the Charter to Alberta school boards) to that undertaken in the Decision. This would mean that the actions of Alberta school board trustees, superintendents, system leaders, administrators, teachers, etc. as government actors, would be subject to and scrutinized under the Charter. In that event, Alberta school board employees subjected to a workplace search would be afforded section 8 Charter protection.
Alberta school boards are already familiar with student searches under section 8 of the Charter. The authority of principals to search students is well established: R. v M. (M.R.), [1998] 3 S.C.R. 393. In M. (M.R.) the Supreme Court interpreted section 8 of the Charter in the school setting to the 'occupational realities' of schools and refrained from requiring school boards to secure search warrants to conduct student searches (where the school administrators are not acting as an agent of the state). The 'occupational reality' is that school administrators must be able to ensure student safety, and exercise flexibility to deal speedily and effectively with breaches of school rules and to discipline problems that may arise. (This analysis is different from the one undertaken in the Decision.)
TIPS AND TAKEAWAYS
Even though the Decision is specific to Ontario school boards, there are three important human resource-related tips and takeaways for Alberta school authorities:
- The operational realities, policies, and procedures of an Albertan school authority are relevant in determining the reasonableness of an employee's expectation of privacy at work: it is critical that technology-related workplace policies and procedures reflect a reasonable balance between a school authority's right to manage its workforce versus employee reasonable expectation of privacy.
- Acceptable Technology User Agreements / Workplace Technology
User Policies, training and monitoring practices should be
reasonable and up to date. The same should address:
- whether employees may use work technology for personal use;
- limitations of employee personal use on work technology;
- the employer's right to access its technology;
- the employer's reasonable right to monitor employee technology use: to what extent / for what purpose and the limits of the same;
- the approach taken by the employer to balance its right to manage the workplace versus employee privacy rights;
- when / in what circumstances the employer may conduct a search and seizure of employee usage on its technology.
- Context matters (as also noted by the Ontario Court of Appeal at paras. 67 and 68): Principal Pettigrew found Shen's log by happenstance. Once the principal realized he was looking at Shen's log, it was as though he had found her diary which he had no legitimate purpose to read, let alone take screenshots of.
This was not a case in which a school principal stumbled across a dangerous situation that required urgent action to ensure student or employee safety. Principal Pettigrew had not discovered anything dangerous; he had discovered the Teachers' private conversations. It was a record of thoughts to which he was not entitled.
CLOSING COMMENT
We will update you on any court decisions which address the applicability of the Charter to Alberta school boards. We are also watching to see how other Charter rights of school board employees (i.e., freedom of religion and freedom of expression) will be addressed on a go forward basis by the courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.