Introduction
The Supreme Court of Canada (SCC) ruled late last month that Ontario public school board teachers are protected from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms (Charter). This decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario confirms that all activities of Ontario public school boards are subject to the Charter as they are considered manifestations of government.
Background
The York Region District School Board (Board) issued written reprimands to two elementary school teachers for using a school laptop to access a private, password-protected log to document workplace concerns. The principal, aware of this log, found the laptop open after hours, accessed the document and photographed it. These photographs served as the basis for the reprimands.
The Elementary Teachers’ Federation of Ontario (ETFO) filed a grievance against the reprimands issued to the two teachers, arguing the search violated their right to privacy. The arbitrator found the teachers had a diminished expectation of privacy as the log was left open, discussed openly and in plain view. Balancing this against the Board’s interest in managing a toxic work environment, the arbitrator upheld the reprimands and dismissed the grievance.
On judicial review, the Divisional Court upheld the reasonableness of the arbitrator’s decision
The ETFO sought judicial review to quash the arbitrator’s award and declare that the Board breached the teachers’ privacy rights. The majority dismissed the application. They ruled that the arbitrator’s reasoning was justified, transparent and within a reasonable range of outcomes. The majority held that the framework for analysis of the teachers’ rights and expectations was based on the collective agreement, not section 8 of the Charter, and concluded that employees do not have section 8 Charter protection against unreasonable search or seizure in the workplace.
The dissent found the arbitrator’s decision unreasonable, concluding that the Board’s actions as a “state actor” fell within the Charter framework and affirming that employees have section 8 Charter rights in the workplace. As such, a different balance between Charter values and statutory objectives was appropriate.
The Ontario Court of Appeal quashed the labour arbitrator’s decision
The Court of Appeal found the arbitrator misinterpreted and misapplied section 8 of the Charter, resulting in an unreasonable dismissal of the grievance. The Court of Appeal emphasized the arbitrator’s reliance on section 8 case law and asserted that the grievors had a reasonable expectation of privacy.
The Court of Appeal concluded that: (1) section 8 of the Charter applied to the actions of the principal and the Board; (2) the grievors had a reasonable expectation of privacy; (3) the arbitrator erred in interpreting and applying the law concerning the grievors’ section 8 Charter right; and (4) the arbitrator reached an unreasonable decision.
Supreme Court of Canada decision
The SCC dismissed the Board’s appeal of the Ontario Court of Appeal’s decision.
Before this decision, the SCC has not made a definitive statement regarding the application of the Charter to school boards. After reviewing the Ontario Education Act and applying the test in Eldridge v. British Columbia, the SCC found that Ontario public school boards are, in effect, “an arm of government” in that they “exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves.” Further, the SCC declared that public education is inherently a governmental function with a unique constitutional quality. Ontario school boards are manifestations of government and, thus, subject to the Charter under the Eldridge test.
The arbitrator held a broad contractual power to answer questions regarding “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.” However, the SCC found that in a case where management is exercising a delegated public authority, the rights at issue are not purely private and contractual arbitrators must also consider the application of the Charter.
Justices Karakatsanis and Martin agreed with the majority that the Charter applies to Ontario public school boards and their activities under the first branch of the Eldridge framework.
However, they disagreed on the appropriate standard of review for the arbitrator’s decision. The dissenting members of the Court found that the reasonableness standard should apply to the arbitrator’s determinations, instead of the correctness standard, which prevailed at the lower courts and was endorsed by the majority. The dissent nevertheless would have found the arbitrator’s decision to be unreasonable for failing to engage fully with the broad privacy protections of section 8 and would have dismissed the appeal on these grounds.
Conclusion
The decision has significant implications for Charter protections, including privacy rights, in a workplace setting. It confirms that teachers in public school boards are protected under section 8 of the Charter against unreasonable search and seizure. It establishes that school boards, being inherently governmental, must conduct any search in compliance with Charter rights. Finally, the ruling underscores the necessity for administrative bodies exercising legislatively delegated public functions to fully integrate Charter analysis into their decision-making processes.
For more information on this topic, please reach out to the authors, Brandon Barnes Trickett, Laurie Livingstone and Kirsten Thompson.
The authors would like to thank summer student, Aminah Haghighi, for their assistance with this blog.
