Important Decision On Workplace Privacy Rendered By The Supreme Court Of Canada

On June 21, 2024, the Supreme Court of Canada rendered an important decision on workplace privacy protections for teachers. In York Region District School Board v. Elementary Teachers' Federation of Ontario, the Supreme Court confirmed that Ontario public school board teachers benefit from the protections provided for in section 8 of the Canadian Charter of Rights and Freedoms (the "Canadian Charter") against unreasonable search or seizure.¹

This Supreme Court decision is of interest to all employers, with widespread implications for employees' reasonable expectation of privacy in the workplace.

THE FACTS

On the recommendation of their union, two public school teachers in Ontario recorded their concerns in writing about problems arising within their group of teachers. They kept their notes in a private log using their personal Gmail accounts. After staff members informed the school's principal of the log, the principal initiated a search for the document in the school's computer system. No log was found.

Later in the year, the principal entered one of the teacher's classrooms to return teaching materials and noticed the teacher's laptop was on. When he touched the mouse pad, the screen displayed the log in question. The principal photographed passages of the document using his phone.

The two teachers then had their computers seized and the log was sent to the School Board for investigation. The teachers were reprimanded by the School Board for violating the standards of practice for their profession. Following these events, the union filed a grievance contesting the reprimands in the teachers' records, arguing that their right to privacy in the workplace was violated.

Supreme Court decision

In a unanimous decision, the Supreme Court found that Ontario public school board teachers working under the aegis of the Education Act have a protected right to privacy under section 8 of the Canadian Charter.

This finding follows from the analytical framework set out in the Eldridge decision, wherein the Supreme Court affirmed that Ontario public school boards are governmental entities subject to the Canadian Charter. As such, public education is "inherently a government function."²

However, the Supreme Court did not determine whether section 8 of the Canadian Charter—or the right to privacy more generally—was violated for these two teachers. Since the arbitrator did not take section 8 protections into account in her analysis, this in itself was enough to quash her decision. There was also no need for further arbitral consideration, since the reprimands had been long since removed from the teachers' files pursuant to a provision in their collective agreement.

The Supreme Court has elsewhere issued comments that apply more broadly to issues of employee privacy, as well as comments relating to workplace searches where section 8 of the Canadian Charter applies:

• To determine whether an employee's right to privacy was violated, the tribunal or arbitrator must first assess if there was a reasonable expectation of privacy in the workplace and whether the search or seizure was unreasonable.
• This reasonable expectation of privacy in the workplace is not absolute, but rather contextualized in the totality of the circumstances. It is thus essential to take all context into account when recognizing such rights. On this point, the Supreme Court refers to the Cole decision, where it determined that an employer's data collection policy for work computers diminished employees' reasonable expectation of privacy (without eliminating it altogether). On the other hand, that employees were permitted to use their professional computers for personal purposes does support a reasonable expectation of privacy.
• The right to privacy in the workplace is distinct from the right to privacy in criminal matters. To determine if a search and seizure is unreasonable, arbitrators should take into account employment relations "under the terms of the collective agreements."³ They should also consider existing arbitral jurisprudence regarding the balance of interests between employers' and employees' privacy rights.

What employers need to know

This latest Supreme Court decision is in keeping with the Cole and Morelli decisions. They outline how employers' right of direction can be exercised while still protecting employee privacy.

The Supreme Court's comments remind employers that it is in their interest to implement a clear framework for their employees' use of work electronics, especially given the ubiquity of remote work.

To this end, employers should include specific provisions in the collective agreement (in unionized environments) or in employment contracts. They should also review the business's existing policies and processes. This helps better define employees' reasonable expectation of privacy and gives employers more leeway when acting on their legitimate interests, including managing performance or investigating a workplace incident.

Communicating this framework to employees is critical to its application. Educating managers and employees on the reasonable expectation of privacy in the workplace is encouraged. In particular, employers often face issues related to employees' use of social media or instant messaging. Access to communications can also be important when addressing harassment and discrimination.

To sum up, employers should know that their freedom to respond to a problematic incident or situation depends on the employee privacy framework already in place.

The authors are grateful to law student Gabrielle Poulin for her invaluable contribution to this article.

Footnotes

1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11.

2. York Region District School Board v. Elementary Teachers' Federation of Ontario, 2024 SCC 22 at para 81.

3. York Region District School Board v. Elementary Teachers' Federation of Ontario, 2024 SCC 22 at para 105.

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.