On June 21, 2024, a long awaited decision from the Supreme Court of Canada was released which provides clarity on the role of labour arbitrators in applying the Canadian Charter of Rights and Freedoms (the "Charter") and on the reasonable expectation of privacy in the workplace.1
What Happened?
The case originated with a grievance arbitration involving two teachers employed by the York Region District School Board (the "School Board"). The teachers had been disciplined based on their communications contained in a private online log regarding workplace concerns. The communications were stored on a shared password-protected log in the cloud, and not locally on the School Board's laptop.
The teachers' principal was aware of the existence of the log but the School Board's IT services had been unable to previously locate it on the School Board's system. Evidence of the communications was eventually obtained by the school principal when he entered the classroom of one of the teachers without her presence, and found her Board-issued laptop unattended. The principal touched the mousepad of the Board laptop, which was already unlocked, revealing that the log was open on the screen. The principal then read what was on the screen and proceeded to scroll through the document, taking screenshots with his cellphone.
An investigation was launched into allegations against the teachers and they ultimately both received written letters of discipline, which were to remain on their files for a minimum of three years. The teachers' union brought a grievance on their behalf, claiming that the search of the laptop violated their reasonable expectation of privacy at work. No breach of the Charter was alleged at the time of the original grievance.
Judicial History
Arbitration
The arbitrator reached a number of conclusions regarding the screenshot evidence which eventually led to the grievors' discipline, including:
- The log was the subject matter of the search and the grievors had a direct interest in the subject matter;
- The grievors had a subjective expectation of privacy regarding the log;
- The grievors' expectation of privacy was objectively reasonable in the circumstances since they had taken steps to keep the log private;
- Given one of the teachers had left the log open in the classroom on the School Board's laptop, there was a diminished expectation of privacy regarding the log.
Ultimately, the Arbitrator found that that the School Board had not breached the grievors' reasonable expectation of privacy when balanced against the School Board's interest in managing the workplace.
Judicial Review
The union brought an application for judicial review of the arbitrator's decision to the Ontario Divisional Court.
The Divisional Court, on a split basis, upheld the reasonableness of the arbitrator's decision. The majority found that no Charter issues arose as a result of the search of the laptop, because in a workplace environment, unlike in a criminal context, an employee does not have a right to be secure against unreasonable search and seizure – as is required under section 8 of the Charter.
The dissent concluded that the Charter did apply, that the search did impair the grievors' rights under section 8 of the Charter, and that the arbitrator's decision was unreasonable
Court of Appeal
The union further appealed the decision of the Divisional Court to the Ontario Court of Appeal.
The Court of Appeal unanimously allowed the appeal and quashed the arbitrator's original decision. The Court stated clearly that public school teachers were captured under the purview of the Charter and therefore protected from unreasonable search and seizure by their employers pursuant to section 8.
The Court of Appeal found that in the circumstances, the principal's actions violated the grievors' reasonable expectation of privacy and constituted an unreasonable search under section 8.
What did the Supreme Court Decide?
The School Board finally appealed the decision of the Court of Appeal to the Supreme Court of Canada.
The Supreme Court began its decision noting that it was an opportunity for the court to determine the applicability of the Charter to Ontario public school boards. The majority concluded that school boards are inherently government for the purposes of the application of the Charter, and accordingly teachers, and other board employees, are protected by section 8.
The Supreme Court made several remarks in the context of the case which have broader impact on labour arbitration decisions, specifically:
- Administrative tribunals, including labour arbitrators, should play a primary role in the determination of Charter issues falling within their specialized jurisdiction;
- Where a Charter right applies, an administrative decision-maker should perform an analysis consistent with the law of that Charter provision; and
- Where an arbitrator has the power to decide questions of law regarding the Charter, there must be clear acknowledgement and analysis of that right – mere reference to Charter jurisprudence is not sufficient.
By failing to consider the legal framework under section 8, the Supreme Court ultimately found that the arbitrator erred in her analysis, and dismissed the appeal.
Takeaways
As a result of this decision, the Supreme Court has stated that a grievance which implicates an alleged violation of a Charter right is a legal constraint on the analysis of the arbitrator. The result brings some clarity to employers who are clearly under the purview of the Charter, but may create unclear situations for employers that are less obviously subject to Charter scrutiny.
The Supreme Court also reinforced that there may be a right to a reasonable expectation of privacy in the workplace. In this matter, the Arbitrator did not correctly consider the Charterright at issue. The court noted that the employer's operational realities, policies and procedures can be relevant in determining the reasonableness of an employee's expectation of privacy. However, a search of an internet-connected device tends to reveal "specific interests, likes and propensities", that touch on a person's biographical core. Caselaw has found that these situations attract a reasonable expectation of privacy under the Charter. It is not the content of the information searched, but the potential for the search to reveal information touching on the individual's biographical core, that should be considered in determining whether a reasonable expectation of privacy exists.
Footnote
1. York Region District School Board v. Elementary Teachers' Federation of Ontario, 2024 SCC 22
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