Charter Cases Affecting Canadian Schools

Workplace Privacy and the Charter: Does the Charter Apply to Public School Boards?

Facts

In the 2014-15 school year, two Grade 2 teachers (the Teachers) were newly employed at a public school in the York Region District School Board (the Board). Shortly after the school year began, problems arose within the Grade 2 teachers group. The Teachers felt that a colleague was ineffective and receiving preferential treatment from the Principal. They were concerned about how interpersonal issues might impact performance reviews.

One of the Teachers contacted the Elementary Teachers Federation of Ontario (the Union) and was told to keep notes about her concerns. As such, she started a private log using her personal Gmail account. The Teachers both had access to the log, which could be edited by both. The log was not saved on a workplace drive or Board device. It was stored “in the cloud” as a private Google Doc, through a private internet account unrelated to the Board. Some others at the school were aware that the Teachers were maintaining a log.

The Principal was told by staff that the Teachers had workplace concerns and were keeping a log. The Principal discussed this with the Board Superintendent, Human Resources, and IT. An IT search was conducted. No log was found.

In December 2014, the Principal entered the Teacher’s classroom to return materials after class had ended. The Teacher was not present. The Principal saw that a Board laptop used by the Teacher was open and touched the mousepad. A document called “Log Google Docs” opened on the screen. The Principal read what was visible, scrolled through the document and took cellphone screenshots. When finished, he shut down the laptop.

The Principal emailed the Superintendent that he had obtained the contents and there was “much nastiness all the way through it.” The Principal and Superintendent agreed they should seize the laptop as it was a Board computer. A school caretaker did so on their behalf. The Principal forwarded screenshots of the log to the Board for investigation. The other Teacher’s laptop was also seized – it was closed when taken.

On January 23, 2015, the Teachers were given written reprimands by the Board arising from the events, for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice.

The Grievance

On February 6, 2015, the Union grieved the written reprimands, requesting to have the reprimands rescinded and that each Teacher be awarded $15,000.00 in damages for the Board’s breach of their privacy. The Union claimed the Board violated the Teachers’ right to privacy without reasonable cause and used that information as a basis for discipline.  In January 2018, pursuant to a collective agreement “sunset clause,” the reprimands were removed from the Teachers’ records.

The grievance was arbitrated between September 2016 and June 2018. The issue before the arbitrator was whether the Teachers’ privacy rights were breached. The Arbitrator considered whether the Teachers had a reasonable expectation of privacy in the log, such that searches by the Principal and the Board breached their privacy. Notably, the Arbitrator was not asked to consider whether section 8 of the Canadian Charter of Rights and Freedoms was infringed; however, principles derived from s. 8 Charter jurisprudence were considered.

The Union alleged three privacy breaches: The Board’s IT search; the Principal’s classroom search of the laptop; and searches conducted after the Board seized both Teachers’ classroom laptops. Dismissing the grievance, the Arbitrator concluded there was no breach of the Teachers’ “diminished” reasonable expectation of privacy, when balanced against the Board’s legitimate interest in addressing the issue of the toxic work environment allegedly caused by the Teachers. 

Judicial Review

The Union applied to the Ontario Superior Court of Justice (Divisional Court) for judicial review of the Arbitrator’s decision. The issue was not moot by virtue of the removal of the reprimands from the Teachers’ records. The Court upheld the reasonableness of the Arbitrator’s decision, finding that no Charter issues arose from the search because an employee does not have a s. 8 right to be secure against unreasonable search or seizure in the workplace, unlike in a criminal context.

Court of Appeal

The Union appealed to the Ontario Court of Appeal. The Court of Appeal unanimously allowed the appeal, quashing the Arbitrator’s decision. It held that the Divisional Court erred concluding that s. 8 did not apply. Conducting a review of the Arbitrator’s decision, the Court of Appeal held that the search was unreasonable under s. 8 of the Charter.

Cause of Action

The Board appealed to the Supreme Court of Canada.

Legal Issue

The appeal provided an opportunity for the Supreme Court to determine the applicability of the Charter to Ontario public school boards. 

Decision

The appeal was dismissed with costs, and the Arbitrator’s decision was set aside. While the majority of the Supreme Court opined that the Charter applies to Ontario public school boards, it acknowledged that each case will depend upon the specific factual and statutory context.

The case was not remitted for further arbitral proceedings given that the events took place nearly 10 years prior. Given the significant proceedings, remitting in the circumstances was not an efficient use of public resources. The parties were left with the Supreme Court’s reasons that s. 8 of the Charter applies to Ontario public school boards and the Court of Appeal’s determination that there was a breach of the Teachers’ privacy rights. 

Reasons

Scope of Charter Application

Section 32 of the Constitution Act, 1982 sets out the scope of the Charter’s application. The Supreme Court in Eldridge established a two-branch framework for determining when the Charter applies to an entity (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R.). Under the first branch, it may be determined that an entity is itself “government” for the purposes of s. 32 where (1) by its very nature, or (2) the degree of governmental control exercised over it, the entity is akin to government. Under this branch, where the entity is found to be “government”, the Charter applies to all its actions.

Government By Nature

A review of Ontario’s Education Act in this case confirmed that Ontario public school boards are government by nature and therefore subject to the Charter under Eldridge’s first branch. In the Court’s view, Ontario public school boards are, in effect, an arm of government, exercising powers conferred upon them by the provincial legislature – powers and functions which the legislature would otherwise have to perform. Public education is inherently a governmental function. The Court held that all actions carried on by Ontario public school boards are subject to Charter scrutiny, including the Principal’s actions in this case, as he acted in his official capacity as an agent of the Board – a statutory delegate – and not in his personal capacity. 

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (Supreme Court of Canada).

Authored by Anna Zadunayski LLB, MSc. 

Implications and Applications

The preceding case is not a blanket precedent. The Supreme Court carefully cautioned that whether or not the Charter applies to Canadian public school boards depends upon the specific factual and statutory context. Not all Canadian jurisdictions will have legislation identical to the Education Act, RSO 1990, c E.2. However, the facts of this case were straightforward and could have happened anywhere. The decision serves as very strong authority for the legal proposition that where public school boards are an arm of government, exercising powers conferred upon them by a provincial legislature (powers and functions the legislature would otherwise have to perform), there is a strong likelihood that Charter rights and freedoms (and correlating responsibilities) will apply. As such, Canadian public school boards should take this decision very seriously, and use it to inform their conduct.   

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