School Boards Bound by Charter
The Supreme Court of Canada (“SCC”) recently decided in York Region District School Board v. Elementary Teachers Federation of Ontario that the Canadian Charter of Rights and Freedoms (“Charter”) applies to Ontario public school boards. Specifically, the application of the s. 8 right to be free from unreasonable search and seizure in the workplace. The decisions will inform future judgments regarding reasonable expectations of privacy in non-criminal contexts like the workplace.
Background
In 2014, Ms. Shen and Ms. Rai (“the grievors”) were hired by York Region District School Board (“the Board”). The grievors began a shared Google Doc to log concerns about another teacher. The shared Google Doc was attached to their personal email accounts and saved to ‘the cloud’, but often accessed via their work laptops.
When the principal became aware of the shared Google Doc, an unsuccessful IT search was conducted to uncover it. Escalating his search, the principal entered Ms. Shen’s classroom and activated her open laptop by touching its mousepad. The laptop opened to the shared Google Doc, which the principal photographed and forwarded to the Board. These photographs formed the basis of written reprimands given to the grievors by the Board.
In 2018, the matter went to arbitration and the grievors’ reasonable expectations of privacy was found to be outweighed by the Board’s interest in managing the workplace. Therefore, the Board did not unlawfully violate the grievor’s privacy.
One year later, the Divisional Court upheld the arbitrator’s conclusion. However, in 2022, the Ontario Court of Appeal overturned the Divisional Court’s ruling and quashed the arbitrator’s decision for failing to consider the grievors’ s. 8 Charter rights.
Supreme Court of Canada
The SCC concluded that the arbitrator failed to properly consider the grievor’s s.8 right to be free from search and seizure in their decision. There must be a clear acknowledgement and analysis of the Charter right. The arbitrator merely balanced the interests of managerial control with employee privacy. For this reason the arbitrator’s decision was incorrect and was quashed by the SCC.
This case specifically concerned the application of s. 8 in Ontario school boards. However, the decision will impact the way that all constitutional issues are analyzed in the context of Canadian schools. Judges and arbitrators are now required to apply rigorous constitutional analysis where Charter questions arise in the context of public school. Even where there is consent, when dealing with an Ontario school board, the arbitrator has no choice but to apply the relevant Charter test.
Charter standards are highly contextual and complex. Specifically in the context of s. 8, the court will consider both subjective expectation of privacy and the objective reasonableness of the belief. Employers in the education system are encouraged to consult their lawyer to ensure compliance with Charter standards.