Elementary Teachers’ Federation of Ontario v. York Region District School Board, 2022 ONCA 476 (40360)

In the recent decision Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, the Court of Appeal for Ontario found that a school’s principal breached two teachers’ rights to privacy when he read and documented the teachers’ personal emails to each other, which had been left open on a school laptop.

This case acknowledged teachers’ rights against unreasonable search and seizure according to Section 8 of the Canadian Charter of Rights and Freedoms. 

In this case, two teachers had been recording their communications about another teacher and their work environment on a private log. In an attempt to discipline them through the school board, the principal took pictures of the conversations that were left accessible. Under the Education Act, a principal has the power to “maintain proper order and discipline in the school”.

At the discipline grievance, the arbitrator had no clear evidence on whether the principal’s actions were intentional. Though the grievors were entitled to a reasonable expectation of privacy, their rights were diminished as they were responsible for leaving the log unsecured on a school computer. As a result, the arbitrator determined that their rights were not violated.

At the appeal, the Court of Appeal disagreed with the arbitrator’s decision and held that the principal violated the Charter right to be free from an unreasonable search.

The Court held that the arbitrator erred in considering the subject matter of the correspondence and the grievor’s diminished expectation of privacy. Because the logs were stored and secured in the cloud, with reasonable security and privacy measures taken, the Court concluded that the principal’s search was unreasonable.

The Court noted that the principal’s concern must be related to students, for it to be reasonable:

“In my view, concerns arising out of employment relationships in the workplace are unlikely to justify a similarly broad and flexible search and seizure authority. Branding workplace relationships “toxic” does not alter this.”

The principal was expected to respect the grievors’ rights to privacy the moment he knew that he had accessed a private log. With no direct purpose in reading it, taking screenshots and submitting the private logs to the Board, the Court of Appeal declared a violation of the section 8 Charter right.

Employers should beware that just because an employee is using the employer’s hardware does not mean that the employer has the right to interfere with, or get access to, an employee’s private communications.