In York Region District School Board v. Elementary Teachers' Federation of Ontario, 2024 SCC 22 the Supreme Court of Canada found that the Charter applies to Ontario public school boards. In particular, the Supreme Court found that s.8 of the Charter, which protects against unreasonable search and seizure, protects teachers from unreasonable search and seizure by those acting as agents of the school board.
Background
Two teachers employed by an Ontario public school recorded their private communications regarding workplace concerns on a shared personal password-protected log stored in the cloud. The school principal was made aware of the log and entered a classroom of one of their teachers while they were absent. The principal touched the mousepad of the Board supplied computer and the log opened on the screen. The principal took screenshots of the log with his cellphone, and these screenshots were subsequently made the basis for the school board to issue written reprimands to the teachers.
The union grieved the discipline, alleging that the principal's search violated the teachers' right to privacy. The union did not allege that the principal's action breached the Charter. The arbitrator dismissed the grievance, concluding that there was no breach of the teachers' reasonable expectation of privacy when balanced against the school board's interest in managing the workplace.
The majority of the Divisional Court upheld the reasonableness of the arbitrator's decision, finding that no Charter issue arose from the search because an employee does not have the right under s.8 of the Charter to be secure against unreasonable search or seizure in a workplace environment. The dissenting judge found that the Charter applied and that the arbitrator's decision was unreasonable. The Court of Appeal unanimously allowed the appeal and quashed the arbitrator's decision. The Court of Appeal reviewed the arbitrator's decision on the standard of correctness and held that the search was unreasonable under s.8 of the Charter.
Supreme Court of Canada's Decision
The Supreme Court of Canada dismissed the appeal. Both the Supreme Court majority and minority found that Ontario public school board teachers are protected by s.8 of the Charter in the workplace. The majority and minority written decisions disagreed over how the arbitrator's decision should be reviewed and the appropriate standard of review.
The majority, applying the correctness standard, concluded that the arbitrator erred by limiting her inquiry to the arbitral framework rather than considering the legal framework under s.8 of the Charter. The Supreme Court found that the Charter applied using s.32 of the Charter and the two-branch framework that was established by the Supreme Court in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 to determine when the Charter applies to an entity. The Supreme Court determined that school boards are governmental by nature, based on a review of Ontario's Education Act, and are therefore subject to the Charter under the first branch of the framework established in Eldridge. The Supreme Court elaborated that school boards are essentially an arm of government in that they exercise powers conferred on them by the provincial legislature. Public education is inherently a governmental function, and all actions carried on by Ontario public schools are subject to Charter scrutiny, including the principal's actions, as he acted in his official capacity as an agent of the Board and not in his personal capacity. The Supreme Court elaborated that administrative tribunals are tasked with adjudicating Charter questions when they arise and that, where a Charter right applies, an administrative decision-maker must perform an analysis consistent with the relevant charter provision. Accordingly, it was not sufficient for the arbitrator in this case to make some reference to Charter jurisprudence. Rather, the arbitrator should have made a clear acknowledgement and analysis of that Charter right in her written decision.
The majority further explained that the standard of correctness applies because the issue of constitutionality on judicial review is a constitutional question that requires a final and determinate answer from the courts.
In contrast, the minority disagreed with how the majority reviewed the arbitrator's decision. The minority found that presumption of reasonableness applied given that that the question of whether the teachers' privacy rights had been breached involved an application and assessment that was heavily dependent on the specific and factual and statutory context. Although the arbitrator's decision was unreasonable because her reasoning was not consistent with the principle of content neutrality, the minority found that the arbitrator clearly understood that the Charter and s.8 jurisprudence applied to the grievance.
Takeaways
This case illustrates that employers in workplaces where the Charter applies must also be mindful of how Charter rights may apply to their employees. In particular, employers must be mindful of how s.8 of the Charter may provide enhanced protection of their employees' privacy rights.
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