On June 21, 2024, the Supreme Court of Canada (the "SCC") released it decision in York Region District School Board v. Elementary Teachers' Federation of Ontario clarifying the capacity of an arbitrator to address issues under the Canadian Charter of Rights and Freedoms (the "Charter").
Background
The SCC's decision stems from a grievance made on behalf of two public school teachers (the "Grievors") employed by the York Region District School Board in Ontario. The grievance alleged that the Grievors' right to a reasonable expectation of privacy in the workplace had been violated. No allegation of a breach of the Charter was raised in the grievance.
The Grievors in this case had concerns of preferential treatment of one of the teachers and the impact of interpersonal issues on their upcoming performance reviews. On the advice of the union, the Grievors began to document their concerns in a private log stored on one of the Grievor's personal email accounts. The log could be accessed and edited by both Grievors. The log was not saved on a workplace drive or on their school laptops.
When the principal of the school was informed of the existence of the log, they requested that an IT search be done. The search yielded no results as the log was private.
Evidence of the log was obtained by the school's principal when he entered the classroom of one of the teachers, touched her laptop and revealed the log open on the screen. The principal took screenshots of the log before shutting down the laptop.
The teachers were given written reprimands for failing to conduct themselves in accordance with the Ontario College of Teachers' Standards of Practice.
Arbitration
The arbitrator considered whether the Grievors in fact had a reasonable expectation of privacy with respect to the log. Although the arbitrator did not address whether there was a breach of section 8 of the Charter, they did reference jurisprudence where such breaches were considered. Ultimately, the arbitrator concluded that the school board had a "legitimate interest" in addressing the allegation of a toxic work environment, and when such an interest was balanced against the right to reasonable privacy, no violation was found.
Judicial Review to Ontario Divisional Court
The arbitrator's decision was appealed to the Divisional Court, who upheld the decision and concluded that there were no Charter issues. The majority of the Divisional Court agreed with the arbitrator that the principal's actions were reasonable under his duty to maintain order and discipline in the workplace and that the log was not close enough to the Greivors' "biological core." It was decided that the appropriate framework for adjudicating this case was the rights set out in the collective agreement and not section 8 of the Charter.
The Court of Appeal
The matter was further appealed to the Ontario Court of Appeal. The Court of Appeal unanimously allowed the appeal, holding that the Charter applied to the actions of the school board. The Court of Appeal concluded that the right to a reasonable expectation of privacy was afforded to the teachers under section 8 of the Charter and the principal violated such rights at the time of the unreasonable search and seizure of the Grievors' laptops.
The Supreme Court of Canada
The school board appealed to the Supreme Court of Canada (the "SCC") who upheld the decision of the Court of Appeal and confirmed that the Charter applies to public school boards as government entities.
A two-branch framework for determining whether the Charter applies to an entity was developed by the SCC in Eldridge v British Columbia (Attorney General). The first branch applies when the entity itself is found to be "government" because it is government in nature. The second branch involves a private entity carrying out a government activity. The SCC determined that the first branch applied to Ontario public school boards as public education is an inherently government function. It is important to note that the SCC did not determine the applicability of the Charter to public schools in other provinces, or to the operation of private schools.
The SCC clarified several issues in regards to consideration of Charter issues by administrative tribunals. First, it was concluded that so long as it falls within their jurisdiction, administrative tribunals can address Charter issues. Second, where a Charter issue arises, the administrative decision-maker should perform an analysis that is consistent with the relevant Charter provisions. In this case, the SCC found that the arbitrator was required to consider section 8 Charter rights and failed to do so by focusing the analysis on management rights versus the privacy interest of employees. The SCC noted that an arbitrator cannot disregard the applicable Charter requirements and that simply referencing existing caselaw is not a sufficient analysis of Charter rights.
The SCC provided comments in obiter in regards to the school board employees' right against unreasonable search and seizure. They noted that courts should be cautious in adapting the section 8 framework from the criminal context to the employment context. In the employment context, reasonable expectation of privacy will be impacted by an employer's operational realities, policies and procedures.
Key takeaways for employers
Although this decision may not have a direct impact on many employers, it provides guidance for monitoring employees and conducting investigations. It also serves as a reminder to employers that searches of workplace computers and devices must appropriately take into account the privacy interests of employees on those devices.
Employers should be mindful of their own policies and procedures, as well as the relevant provisions of any collective agreement that may be in place impacting an employee's right to privacy.
This blog was written with assistance from Summer Law Student Jill Klassen.
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.