York Region District School Board v. Elementary Teachers’ Federation of Ontario

York Region District School Board v. Elementary Teachers’ Federation of Ontario
Collection
Supreme Court Judgments
Date
2024-06-21
Neutral citation
2024 SCC 22
Case number
40360
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Ontario
Subjects
Administrative law
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22
Appeal Heard: October 18, 2023 Judgment Rendered: June 21, 2024 Docket: 40360
Between:
York Region District School Board Appellant
and
Elementary Teachers’ Federation of Ontario Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, British Columbia Civil Liberties Association, British Columbia Teachers’ Federation, Centre for Free Expression, Ontario College of Teachers, Power Workers’ Union, Society of United Professionals, National Police Federation, Ontario Principals’ Council, Canadian Association of Counsel to Employers, Egale Canada, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Centrale des syndicats du Québec and Queen’s Prison Law Clinic Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 107)
Rowe J. (Wagner C.J. and Côté, Kasirer and Jamal JJ. concurring)
Joint Concurring Reasons: (paras. 108 to 143)
Karakatsanis and Martin JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
York Region District School Board Appellant
v.
Elementary Teachers’ Federation of Ontario Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
British Columbia Civil Liberties Association,
British Columbia Teachers’ Federation,
Centre for Free Expression, Ontario College of Teachers,
Power Workers’ Union, Society of United Professionals,
National Police Federation, Ontario Principals’ Council,
Canadian Association of Counsel to Employers, Egale Canada,
David Asper Centre for Constitutional Rights,
Canadian Civil Liberties Association,
Centrale des syndicats du Québec and
Queen’s Prison Law Clinic Interveners
Indexed as: York Region District School Board v. Elementary Teachers’ Federation of Ontario
2024 SCC 22
File No.: 40360.
2023: October 18; 2024: June 21.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Application — Search and seizure — Teachers’ right to privacy at work — Ontario public school board principal taking screenshots of teachers’ private communications on school laptop — Communications forming basis for written reprimands grieved by teachers’ union on ground that teachers’ right to privacy violated — Arbitrator dismissing grievance — Whether Charter applies to public school boards in Ontario — If so, whether arbitrator’s decision should be set aside — Canadian Charter of Rights and Freedoms, ss. 8, 32.
Administrative law — Judicial review — Standard of review —Constitutional questions — Teachers grieving reprimand arising from screenshots taken by principal of their private communications on school laptop — Arbitrator dismissing grievance — Standard of review applicable to arbitrator’s decision as to whether teachers’ right to privacy violated.
Two teachers employed by an Ontario public school board recorded their private communications regarding workplace concerns on a shared personal, password‑protected log stored in the cloud. The school principal, who had been made aware of the log, entered the classroom of one of the teachers and, in her absence, touched the mousepad of her board laptop, saw the log that opened on the screen, read what was visible, then scrolled through the document and took screenshots with his cellphone. These communications then formed the basis for the school board to issue written reprimands. The teachers’ union grieved the discipline, claiming that the search violated the teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator, appointed pursuant to the collective agreement, dismissed the grievance. Applying the arbitral balancing of interests framework, the arbitrator found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s interest in managing the workplace.
On judicial review, the majority of the Divisional Court upheld the reasonableness of the arbitrator’s decision. The majority held that no Charter issues arose from the search because an employee does not have the right under s. 8 of the Charter to be secure against unreasonable search or seizure in a workplace environment, unlike in a criminal context. The dissent found that the Charter applied and the arbitrator’s decision was unreasonable because she misunderstood the nature of the s. 8 right. The Court of Appeal unanimously allowed the union’s appeal and quashed the arbitrator’s decision. It held that the majority of the Divisional Court erred in concluding that s. 8 did not apply. The Court of Appeal conducted a correctness review of the arbitrator’s decision and held that the search was unreasonable under s. 8 of the Charter.
Held: The appeal should be dismissed.
Per Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ.: Ontario public school board teachers are protected by s. 8 of the Charter in the workplace, as these boards are inherently governmental for the purposes of s. 32 of the Charter. Consequently, the grievance at issue implicated an alleged violation of a Charter right, and s. 8 of the Charter was a legal constraint bearing on the arbitrator’s analysis. On review, applying the correctness standard, the arbitrator erred by limiting her inquiry to the arbitral framework without regard for the legal framework under s. 8 that, as a matter of law, she was required to respect. This error is fatal and the arbitrator’s decision should be set aside.
Section 32 of the Constitution Act, 1982 sets out the scope of the Charter’s application. The Court in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, established a two‑branch framework to determine when the Charter applies to an entity. Under the first branch of the Eldridge framework, it may be determined that an entity is itself “government” for the purposes of s. 32 where, by (1) its very nature or (2) the degree of governmental control exercised over it, the entity is akin to a government. Under this branch, where the entity is found to be “government”, the Charter applies to all its actions.
A review of Ontario’s Education Act confirms that Ontario public school boards are government by nature and therefore are subject to the Charter under Eldridge’s first branch. They are, in effect, an arm of government, in that they exercise powers conferred on them by the provincial legislature, powers and functions which the legislature would otherwise have to perform itself. Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. All actions carried on by Ontario public school boards are subject to Charter scrutiny, including the principal’s actions in the instant case, as he acted in his official capacity as an agent of the board, a statutory delegate, and not in his personal capacity.
Administrative tribunals are competent to and tasked with the work of adjudicating Charter questions where they arise. Administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them and must act consistently with the Charter and its values when exercising its statutory function. The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction. This is in part an access to justice issue: there are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available. Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated. Where a Charter right applies, an administrative decision‑maker should therefore perform an analysis that is consistent with the relevant Charter provision.
The arbitrator in the instant case is broadly empowered, by Ontario’s Labour Relations Act, 1995, to answer questions regarding all differences between the parties arising from the interpretation, application, administration or alleged violation of the collective agreement, including any question as to whether a matter is arbitrable. Thus, the arbitrator has the power to decide questions of law, and was therefore required to decide the grievance consistent with the requirements of s. 8 of the Charter. This would properly entail drawing on both the relevant body of arbitral decisions and the s. 8 jurisprudence. However, the arbitrator approached her task differently, conducting an analysis by reference to management rights versus privacy interests of employees. When a Charter right applies, it is not sufficient that the arbitrator made some references to the Charter jurisprudence. There must be clear acknowledgment of and analysis of that right. While administrative justice may not always take the form of judicial justice, nowhere in the arbitrator’s reasons, read functionally and holistically, did it indicate s. 8 Charter rights were being considered.
While the Court of Appeal properly applied a correctness standard of review to the question of whether the teachers had a reasonable expectation of privacy, the court erred in deriving the standard of review from R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, dealing with an appellate standard of review. Where a court reviews a decision of an administrative tribunal, the standard of review must be determined on the basis of administrative law principles. Accordingly, this appeal is governed by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. Correctness applies because the issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of the analysis — is a constitutional question that requires a final and determinate answer from the courts and therefore falls within the rule of law exception. Vavilov does not restrict the scope of “constitutional questions” to only issues of federalism and the constitutional delegation of state power to administrative decision‑makers; it used non‑exhaustive language in articulating the constitutional questions category, including within it “other constitutional matters”. This category should not be unduly narrowed.
Per Karakatsanis and Martin JJ.: There is agreement with the majority that the Charter applies to Ontario public school boards. However, there is disagreement as to how the majority reviews the arbitrator’s decision. Reviewing the arbitrator’s decision on the correctness standard overshoots the ambit of the correctness exceptions laid down in Vavilov. The issue before the arbitrator was whether the teachers’ privacy rights had been breached, an application and assessment which heavily depended on the specific factual and statutory context. As a result, the presumption of reasonableness review applies. Reviewing the arbitrator’s reasons on that standard, the arbitrator’s reasoning is not consistent with the principle of content neutrality, which lies at the heart of s. 8’s normative approach to privacy, and therefore her decision is unreasonable.
Vavilov was intended to provide a stable framework for determining and applying the standard of review and to encourage parties to focus instead on the merits. The Court affirmed a broad presumption of reasonableness review. The correctness exception for constitutional questions is justified by the need for consistency, finality, and determinate answers; but, importantly, Vavilov was clear that constitutional matters not requiring courts to supply final and determinate answers fall outside the exception to the presumption of reasonableness review. Accordingly, individualized decisions involving the application of the Charter that are intrinsically linked to a specific factual and statutory context will generally not engage the same rule of law concern about potential inconsistency as that which motivated the correctness exception for constitutional questions in Vavilov. Courts do not possess a monopoly over the adjudication of Charter‑related issues in the administrative context.
Although the arbitrator’s decision in the instant case is unreasonable, there is disagreement with the majority that it must be quashed because the arbitrator did not expressly state that s. 8 of the Charter applied or that she conducted her analysis without regard to the legal framework under s. 8. That conclusion seizes on form, contrary to Vavilov’s teachings. Administrative decisions are to be considered functionally, with an eye to substance, not form. The Court’s s. 8 Charter jurisprudence was specifically argued by the parties, and the arbitrator’s reasons clearly demonstrate she appreciated that the s. 8 privacy framework constrained her decision. The arbitrator’s reasons demonstrate she was reviewing the challenged conduct using the s. 8 Charter framework as a touchstone. The arbitrator understood that administrative decision-makers must act consistently with the Charter and its values when exercising statutory functions. Reading the arbitrator’s decision as a whole as Vavilov instructs, and with sensitivity to the institutional and procedural context in which it was made, she plainly understood that the Charter and s. 8 jurisprudence bore on the grievance.
Cases Cited
By Rowe J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; considered: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; referred to: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R 608; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Longueépée v. University of Waterloo, 2020 ONCA 830, 153 O.R. (3d) 641; R. v. M. (M.R.), [1998] 3 S.C.R. 393; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Collins, [1987] 1 S.C.R. 26; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Canadian Broadcasting Corp. v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705; Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13; Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, 429 C.C.C. (3d) 69; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; British Columbia Public School Employers’ Assn. v. B.C.T.F., 2005 BCCA 393, 257 D.L.R. (4th) 385; Gillies (Litigation Guardian of) v. Toronto District School Board, 2015 ONSC 1038, 125 O.R. (3d) 17; Calgary Roman Catholic Separate School District No. 1 v. O’Malley, 2007 ABQB 574, 81 Alta. L.R. (4th) 261; Hamilton v. Rocky View School Division No. 41, 2009 ABQB 225, 192 C.R.R. (2d) 22; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; UAlberta Pro‑Life v. Governors of the University of Alberta, 2020 ABCA 1, 98 Alta. L.R. (6th) 252; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Doman Forest Products Ltd. and I.W.A., Loc. 1‑357, Re (1990), 13 L.A.C. (4th) 275; Toronto Transit Commission and A.T.U., Loc. 113 (Belsito) (Re) (1999), 95 L.A.C. (4th) 402.
By Karakatsanis and Martin JJ.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; distinguished: Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13; referred to: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21; Syndicat canadien de la fonction publique, section locale 1108 v. CHU de Québec — Université Laval, 2020 QCCA 857; Canadian Broadcasting Corp. v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 23, 32.
Constitution Act, 1867, s. 93.
Education Act, R.S.O. 1990, c. E.2, ss. 8, 265.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48(1).
Authors Cited
Daly, Paul. A Culture of Justification: Vavilov and the Future of Administrative Law. Vancouver: UBC Press, 2023.
Daly, Paul. “Big Bang Theory: Vavilov’s New Framework for Substantive Review”, in Colleen M. Flood and Paul Daly, eds., Administrative Law in Context, 4th ed. Toronto: Edmond Montgomery, 2022, 327.
Daly, Paul. “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89.
Hasan, Nader, et al. Search and Seizure. Toronto: Emond Montgomery, 2021.
Mancini, Mark. “The Conceptual Gap Between Doré and Vavilov” (2020), 43 Dal. L.J. 793.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Benotto and Huscroft JJ.A.), 2022 ONCA 476, 474 D.L.R. (4th) 297, 513 C.R.R. (2d) 6, 100 Admin. L.R. (6th) 1, 340 L.A.C. (4th) 365, 81 C.C.E.L. (4th) 17, 2022 CLLC ¶220-057, [2022] O.J. No. 2824 (Lexis), 2022 CarswellOnt 8666 (WL), setting aside a decision of the Divisional Court (Kiteley, Sachs and O’Bonsawin JJ.), 2020 ONSC 3685, 464 C.R.R. (2d) 100, 76 Admin. L.R. (6th) 101, 316 L.A.C. (4th) 1, [2020] O.J. No. 2714 (Lexis), 2020 CarswellOnt 8238 (WL), dismissing an application for judicial review of an arbitrator’s decision, 294 L.A.C. (4th) 341, [2018] O.L.A.A. No. 273 (Lexis), 2018 CarswellOnt 13256 (WL). Appeal dismissed.
Frank Cesario, Sean Sells and Lesley Campbell, for the appellant.
Howard Goldblatt and Kiran Kang, for the respondent.
BJ Wray and Joseph Cheng, for the intervener the Attorney General of Canada.
Daniel Huffaker and Waleed Malik, for the intervener the Attorney General of Ontario.
Jean‑Vincent Lacroix, Brigitte Bussières and Geneviève Martin‑Lafleur, for the intervener the Attorney General of Quebec.
Fraser Harland, for the intervener the British Columbia Civil Liberties Association.
Robyn Trask, Michael Sobkin and Vivian Wan, for the intervener the British Columbia Teachers’ Federation.
David Wright, Mae J. Nam and Rebecca Jones, for the intervener the Centre for Free Expression.
Caroline Zayid, David Hakim and Lauren Weaver, for the intervener the Ontario College of Teachers.
Andrew Lokan, Michael Wright, Douglas Montgomery and Nora Parker, for the interveners the Power Workers’ Union and the Society of United Professionals.
Malini Vijaykumar and Claire Kane Boychuk, for the intervener the National Police Federation.
Caroline V. (Nini) Jones and Cassandra E. Jarvis, for the intervener the Ontario Principals’ Council.
George Avraam, Ajanthana Anandarajah and Juliette Mestre, for the intervener the Canadian Association of Counsel to Employers.
Brendan MacArthur‑Stevens, Bennett Jensen and Gregory Sheppard, for the intervener Egale Canada.
Susan Ursel and Kristen Allen, for the intervener the David Asper Centre for Constitutional Rights.
Gerald Chan and Olivia Eng, for the intervener the Canadian Civil Liberties Association.
Amy Nguyen, Marc Daoud and Laurence Dufault‑Arsenault, for the intervener Centrale des syndicats du Québec.
Jared Will, for the intervener the Queen’s Prison Law Clinic.
The judgment of Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ. was delivered by
Rowe J. —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Factual Context
6
III. Judicial History
17
A. Arbitrator’s Decision (2018), 294 L.A.C. (4th) 341 (G. Misra)
17
(1) First Alleged Breach
23
(2) Second Alleged Breach
25
(3) Third Alleged Breach
30
B. Ontario Superior Court of Justice (Divisional Court), 2020 ONSC 3685, 316 L.A.C. (4th) 1 (Kiteley and O’Bonsawin JJ., Sachs J. Dissenting)
32
(1) The Majority Opinion (O’Bonsawin J., Kiteley J. Concurring)
34
(2) The Dissenting Opinion (Sachs J.)
40
C. Court of Appeal for Ontario, 2022 ONCA 476, 340 L.A.C. (4th) 365 (Doherty, Benotto and Huscroft JJ.A.)
49
IV. Issues
53
V. Submissions
54
A. York Region District School Board
54
B. Elementary Teachers’ Federation of Ontario
58
VI. Analysis
62
A. Standard of Review
62
B. The Charter Applies to Ontario Public School Boards Under the First Branch of Eldridge
72
C. The Arbitrator Erred by Applying the Wrong Analytical Framework
85
D. Public School Teachers Have a Section 8 Charter Right Against Unreasonable Search and Seizure in the Workplace
97
(1) Determining the Reasonable Expectation of Privacy
101
(2) Determining the Reasonableness of a Search
104
VII. Conclusion
107
I. Overview
[1] This appeal provides an opportunity for this Court to determine the applicability of the Canadian Charter of Rights and Freedoms to Ontario public school boards.
[2] The private communications of two teachers, recorded on their personal, password-protected log, were read and captured by screenshots taken by their school principal. These communications then formed the basis for the school board to issue written reprimands. The teachers’ union grieved the discipline, claiming that the search violated the teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator, appointed pursuant to the collective agreement, dismissed the grievance. Applying the arbitral “balancing of interests” framework, the arbitrator found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s interest in managing the workplace, set out in s. 265 of the Education Act, R.S.O. 1990, c. E.2.
[3] On judicial review, the majority of the Divisional Court upheld the reasonableness of the arbitrator’s decision. The majority held that no Charter issues arose from the search because an employee does not have a s. 8 Charter right in a workplace environment, unlike in a criminal context. The dissent found that the Charter applied and the arbitrator’s decision was unreasonable because she misunderstood the nature of the s. 8 right. The Court of Appeal unanimously allowed the appeal and quashed the arbitrator’s decision. It held that the majority of the Divisional Court erred in concluding that s. 8 did not apply. The Court of Appeal conducted a correctness review and held that the search was unreasonable under s. 8 of the Charter.
[4] I would dismiss the appeal, although my reasoning follows a different pathway than that of the Court of Appeal. Teachers are protected by s. 8 of the Charter in the workplace, as Ontario public school boards are inherently governmental for the purposes of s. 32 of the Charter. Consequently, the grievance at issue implicated an alleged violation of a Charter right, and s. 8 of the Charter was a legal constraint bearing on the arbitrator’s analysis.
[5] The arbitrator erred by limiting her inquiry to the arbitral framework without regard for the legal framework under s. 8 that, as a matter of law, she was required to respect. The effect of my conclusion on this point is not to displace existing arbitral jurisprudence, but to supplement it in order to ensure the protection of constitutional rights in the workplace. The s. 8 framework being contextual, it must be adapted to account for the circumstances in which the Charter right is asserted.
II. Factual Context
[6] The arbitrator made findings of fact in her decision. They are summarized below.
[7] In the 2014-15 school year, two teachers, Ms. Shen and Ms. Rai (“Grievors”), were newly employed to teach at a public school, which was part of the York Region District School Board. The events in question took place during that academic year.
[8] Shortly after the school year began, problems arose within the group of Grade 2 teachers. The Grievors felt that one of the teachers was not effective and was receiving preferential treatment from the principal. They were concerned about how these interpersonal issues might impact their performance reviews. Ms. Shen contacted an Elementary Teachers Federation of Ontario (“Union”) representative; she was told to keep notes about her concerns.
[9] Following the Union’s advice, Ms. Shen started a private log using her personal Gmail account. Ms. Shen authorized Ms. Rai to have access to the log through Ms. Rai’s personal Gmail account. The log was accessible and could be edited by both Grievors.
[10] The log was not saved on a workplace drive or on the Board laptop. Rather, it was stored “in the cloud” as a private Google Docs document, through a private internet account unrelated to the Board. Some others at the school were aware that the Grievors were maintaining the log.
[11] The principal was told by staff members that the Grievors were keeping a log and that there were concerns about the workplace — which the arbitrator described as “toxic” (paras. 7-8, 28, 46, 79, 87 and 97). The principal discussed this with the Board superintendent, Human Resources, and IT Services. An IT search was conducted, but no log was found on any of the Board’s data storage drives.
[12] On December 16, 2014, the principal entered Ms. Shen’s classroom to return some teaching materials after classes had ended. Ms. Shen was not present. The principal saw that the Board laptop used by Ms. Shen was open and touched its mousepad. A document called “Log Google Docs” opened on the screen. The principal read what was visible on the screen and then scrolled through the document. He used his cellphone to take screenshots of the document. When the principal had finished taking photos, he shut down the laptop.
[13] The principal informed the Board superintendent via email that he had obtained contents of the log and that there was “much nastiness all the way through it” (para. 26). The principal and the Board superintendent agreed they should seize the laptop as it was a Board computer; a school caretaker did so on their behalf. The principal forwarded the photos of the log to the Board for investigation. Ms. Rai’s Board laptop was seized as well. Her laptop was closed when taken.
[14] On January 23, 2015, the Grievors were given written reprimands by the Board arising from these events, for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice.
[15] On February 6, 2015, the Union grieved the written reprimands. By way of remedy, the Union sought to have the written reprimands rescinded and asked that each Grievor be awarded $15,000 in damages for the Board’s breach of their privacy. The Union claimed that the Board violated the Grievors’ right to privacy without reasonable cause and used that information as the basis to discipline the Grievors.
[16] On January 22, 2018, pursuant to a “sunset clause” under the collective agreement, the written reprimands were removed from the Grievors’ records.
III. Judicial History
A. Arbitrator’s Decision (2018), 294 L.A.C. (4th) 341 (G. Misra)
[17] Between September 16, 2016, and June 5, 2018, labour arbitrator Gail Misra held hearings on the grievance.
[18] The arbitrator considered whether the Grievors had a reasonable expectation of privacy in their log, such that the searches by the principal and the Board were breaches of their privacy. Notably, the arbitrator was not asked to consider whether s. 8 of the Charter had been infringed; however, principles derived from s. 8 Charter jurisprudence were considered.
[19] The Union alleged three breaches of the Grievors’ privacy: (1) the Board’s search of its IT platforms; (2) the principal’s search of Ms. Shen’s Board classroom laptop; and (3) the searches conducted after the Board seized both of the Grievors’ Board classroom laptops.
[20] On August 7, 2018, the arbitrator released her decision. She concluded that there was no breach of the Grievors’ “diminished” reasonable expectation of privacy in the log when balanced against the Board’s “legitimate interest” in addressing the issue of the toxic work environment allegedly caused by the Grievors (paras. 262-63). Thus, the arbitrator dismissed the grievance.
[21] She drew on this Court’s decision in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, as “authoritative and of assistance in understanding what may amount to a privacy breach, and the limits to an expectation of privacy in the context of school board cases” (para. 198). The arbitrator also considered arbitral jurisprudence with respect to balancing employee privacy rights against the employer’s interests and management rights. She drew the following conclusions:
(1) The subject matter of the search was the Grievors’ log, which the principal thought was on a Board classroom laptop;
(2) The Grievors had a privacy interest in their log: only they could access the log and make contributions to it;
(3) The Grievors set up their log to operate privately: it was password- protected and not stored on the Board’s laptop or data storage. Thus, they had a subjective expectation of privacy in their log; and
(4) The Grievors’ subjective expectation of privacy was objectively reasonable, as they had taken steps to keep their log private and out of reach of the employer, but it was diminished because they made the content of the log known prior to its discovery, and, as well, Ms. Shen left the log open and freely accessible by anyone using the Board’s computer. The arbitrator also found that the log was left in “plain view”.
[22] Having concluded that the Grievors had a reasonable expectation of privacy in the log, the arbitrator then turned to the three breaches alleged by the Union. She conducted her analysis by applying the arbitral framework of “balancing of the personal privacy interests of an employee with an employer’s right to manage its enterprise” and in each instance, she found “the balance favours the Board in this case” (para. 223). She proceeded to analyze the three breaches.
(1) First Alleged Breach
[23] The first alleged breach was the Board’s search of its data files. The arbitrator found that s. 265 of the Education Act authorized the principal to conduct reasonable searches and seizures without prior judicial authorization. In balancing employees’ personal privacy interests with the employers’ right to manage their enterprises, the arbitrator concluded that the Board had reasonable cause to conduct the search. The search of the IT platforms did not breach the Grievors’ privacy.
[24] The principal had reasonable cause for concern about the work and teaching environment and the level of cooperation and coordination of effort within the Grade 2 teaching team. It was his duty to maintain order and discipline in the school. The arbitrator found that there was reasonable cause for the Board to conduct a search of the Grievors’ online Board data files.
(2) Second Alleged Breach
[25] The second alleged breach was the principal’s search of Ms. Shen’s Board classroom computer. The Union pointed to four distinct acts by the principal: (1) touching the mouse pad to activate the screen; (2) viewing the log; (3) scrolling through the entire log; and (4) taking photographs of the entire log with his cell phone.
[26] The arbitrator found that the principal’s actions were reasonable. She wrote:
Again applying the Supreme Court’s test in M. (M.R.)[, [1998] 3 S.C.R. 393], [the principal] had the right, pursuant to s. 265 of the Education Act, and in the context of maintaining order in his school, to ensure that the laptop had been turned off at the end of the school day. He also had an obligation to take steps to ensure that the Grade 2 teachers were working well together, and that there were no toxic or destabilizing elements at work in the group. I have already outlined the bases upon which I accept that [the principal] had reasonable cause to be searching for the log. [para. 230]
[27] The arbitrator found that Ms. Shen left the log in “plain view” — open and accessible without password protection where it could be viewed by anyone using the Board computer (para. 236). She concluded that once the principal found the log, it was reasonable for the Board to think that it was stored on the laptop and to search the laptop. She found “nothing nefarious” in the manner the principal found and accessed the log (para. 240).
[28] In balancing the Grievors’ diminished privacy interest against the Board’s interests as employer, she concluded that the principal’s “happenstance” discovery and the subsequent seizure of the computer did not breach the Grievors’ workplace privacy (para. 240). The principal “had a legitimate reason to be in Ms. Shen’s classroom”, “had the right to use that Board laptop”, and “the log contained information that he felt may be contributing to a toxic work environment at the school” (paras. 231 and 252).
[29] Meanwhile, the Grievors’ privacy interest was reduced because “Ms. Shen’s leaving the log open on the Board’s classroom laptop diminished her reasonable expectation of privacy” (para. 242). Furthermore, the arbitrator found that the information contained in the log was not personal or intimate, nor did it reveal the Grievors’ views about their colleagues, and thus concluded that it “did not touch on [their] biographical core” (para. 246).
(3) Third Alleged Breach
[30] The third alleged breach was the “forensic” search of Ms. Shen’s and Ms. Rai’s computers, including the seizure of the two computers, and the Board’s search of them. The arbitrator dismissed this alleged breach as well.
[31] Once the principal had found the log on Ms. Shen’s Board classroom laptop, it was reasonable for the Board to think that it may have found the location of the log and to therefore conduct a search for it on the computer. The arbitrator further concluded that “it is not necessary to consider whether there were other alternatives that the employer should have considered before it conducted an IT search” (para. 261).
B. Ontario Superior Court of Justice (Divisional Court), 2020 ONSC 3685, 316 L.A.C. (4th) 1 (Kiteley and O’Bonsawin JJ., Sachs J. Dissenting)
[32] The Union sought judicial review in the Divisional Court. The parties proceeded on the basis that the arbitration decision (referred to as an “award”) was subject to review on a reasonableness standard.
[33] The case was heard at Divisional Court in November 2019. The only issue on judicial review concerned the arbitrator’s conclusion that the Grievors’ reasonable expectation of privacy had not been breached by the employer’s actions. The court concluded that the issue was not moot by virtue of the removal of the written reprimand from the Grievors’ records. The court exercised its discretion to hear the judicial review. Following the oral hearing, the court invited further submissions from the parties on the standard of review following release of this Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
(1) The Majority Opinion (O’Bonsawin J., Kiteley J. Concurring)
[34] In June 2020, the Divisional Court issued a split decision; the majority dismissed the application for judicial review. O’Bonsawin J. (as she then was), Kiteley J. concurring, applied a reasonableness standard of review. The majority concluded that the arbitrator’s reasoning demonstrated justification, transparency, and intelligibility, and the decision she reached was within a range of acceptable outcomes.
[35] The majority concluded that the arbitrator’s finding that the principal had a duty to maintain order and discipline in the school in accordance with s. 265 of the Education Act was reasonable, given the “apparently toxic work environment” within the Grade 2 teaching team (para. 76). The majority noted that the arbitrator recognized that the search had “no criminal element”, but it “was undertaken within the course of [the principal’s] duties . . . to ‘develop co-operation and co-ordination of effort among the members of the staff of the school’” pursuant to s. 265 of the Education Act (para. 79). The majority stated that the arbitrator’s conclusion that the legal duties of a principal under the Education Act could extend to such situations was reasonable (para. 79).
[36] The majority further concluded that the arbitrator interpreted and applied privacy jurisprudence reasonably. With regard to the search by IT Services of the Board’s data storage system, the majority held “there was no reason for the employer to consider ‘other alternatives’ before having its corporate IT Services conduct a search of its own systems” (para. 88). It was also not reasonable to expect the principal to consider other alternatives before searching Ms. Shen’s laptop as “[the principal’s] search occurred ‘by happenstance’ because Ms. Shen had left the laptop on” (para. 89).
[37] As well, the majority held that it was reasonable for the arbitrator to conclude that the log was not close enough to the Grievors’ biographical core because “the entries were not in the nature of emails between spouses, and were not related to medical, banking, or other intimate personal matters” (para. 94). As the arbitrator found that none of the searches impacted the Grievors’ reasonable expectation of privacy, the majority concluded that there was no “cumulative aspect” of the search to consider (para. 101).
[38] Finally, the majority responded to the dissent. The majority disagreed with the