SCC Hears Important Appeal on Workplace Privacy and Charter Application

On October 18, 2023, the Supreme Court of Canada (SCC) heard arguments in York Region District School Board v. Elementary Teachers’ Federation of Ontario. This appeal raises the important question of whether the Canadian Charter of Rights and Freedoms (Charter), and specifically, the right to be free from unreasonable search and seizure, applies to school boards. The Court’s decision could also provide needed guidance on expectations of privacy in non-criminal contexts like the workplace.

Background

The Elementary Teachers’ Federation of Ontario filed a grievance on behalf of two elementary school teachers who received a written reprimand for misusing technology belonging to the York Region District School Board (School Board). The teachers used a personal, password-protected Google Drive to create a log of concerns about another teacher. The potential existence of this record caused other teachers to complain about the work environment, leading to an investigation by the school’s principal.

Although the log was password-protected and created using personal accounts, it was accessed when the principal touched one of the grievors’ laptops, which was inadvertently left open in a classroom. The principal took pictures of the log, printed the photos and forwarded them to the School Board. A month later, the grievors received “letters of discipline” for using School Board technology for the log.

The arbitrator held that the grievors had a reasonable expectation of privacy in the log, which was diminished by leaving the computer open in the workplace. Therefore, the principal’s investigation was reasonable and did not violate the teachers’ privacy rights given concerns raised about a toxic work environment. The Ontario Divisional Court upheld this decision. In dissent, Justice Sachs noted the arbitrator failed to balance the grievors’ rights under section 8 of the Charter against the statutory objectives the principal was seeking to enforce under the Education Act, mainly maintaining proper order and discipline in the school. Highlighting the impact of this decision, Justice Sachs noted, “employees should be disciplined for what they do, not for what they think and say in private communication.”

The Ontario Court of Appeal (Court of Appeal) overturned the Divisional Court, holding that the arbitrator and the majority  of the Divisional Court erred in interpreting the grievors’ section 8 rights in their workplace.

Issues 

Application of Charter to School Boards

A key question in this appeal is whether school boards are subject to the Charter. The SCC’s jurisprudence establishes two bases under which the Charter can be found to apply to an entity. First, the entity can be considered part of “government” because of its governmental nature, meaning that all of its activities are subject to the Charter. Second, certain activities of the entity can be considered “governmental activities,” meaning that only those activities are subject to the Charter.  

The appellant argued that school boards are not subject to the Charter when dealing with workplace and employment matters, as in this case. The respondent argued that school boards are governmental in nature and are, therefore, subject to the Charter in all that they do. During the hearing, several Justices expressed concern about a situation in which school boards are not subject to the Charter and seemed inclined to conclude that the Charter applies to school boards given their inherently governmental nature.  

The SCC’s decision on this issue will have important implications for Canadian schools and environments where numerous constitutional interests are potentially engaged.

Workplace Privacy Rights

The extent of employee privacy rights in the workplace is a matter of significant debate. The federal Privacy Commissioner has noted that individuals have a right to privacy at work, even if they are on their employer's premises or using their employer's equipment. However, employers also need information about employees for legitimate activities like payroll, staffing, and to ensure performance management and workplace safety. The SCC has previously held that privacy rights among employees are normally diminished, but not entirely extinguished.

Canadian jurisprudence has also established that privacy is a normative concept. In the Charter context, section 8 requires courts to conduct a contextual analysis considering the “totality of the circumstances” to determine whether there is a reasonable expectation of privacy in the subject matter of the search. This highly contextual analysis depends on, among other factors, the nature of the subject matter (i.e., whether it relates to informational privacy, personal privacy or territorial privacy).

In this case, the arbitrator found that the log was not deserving of privacy protection because it did not touch upon the teachers’ “biographical core.” This view arguably misconstrues informational privacy interests, which are not limited to demographic information and can include one’s views or opinions. SCC jurisprudence reflects that privacy does not only protect an individual’s right to secrecy, but also their autonomy — the ability to make decisions about how one’s information is communicated. 

The Court of Appeal’s decision also noted that the grievors “did all that they could to protect the privacy of their communications” and that the log was “simply an electronic record of their private conversations.” The Court of Appeal further noted that “many private conversations occur electronically rather than in person or by telephone, through email, texting, or similar means” and that “the potential for personal information being revealed in such conversations is great.” Following the SCC’s decision in R v. Marakah, the objective reasonableness of an expectation of privacy must be determined in regard to the potential for personal information to be revealed, not just whether the information revealed is in fact personal.

The SCC’s decision on these issues will provide welcome guidance about reasonable expectations of privacy in the workplace, and unintended or accidental disclosures of private communications.

Blakes acted for the Intervener, Egale Canada.

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or any other member of our Litigation & Dispute Resolution or Privacy & Data Protection groups.