On June 21, 2024, the Supreme Court of Canada (SCC) delivered its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario. The SCC held that the Canadian Charter of Rights and Freedoms (Charter) applies to Ontario public school boards and that all actions carried on by Ontario public school boards, including their agents and delegates, are subject to Charter scrutiny.
The case also has important implications for the protection of privacy in workplaces across Canada and the standard of review applicable to administrative actors' decisions.
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 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 teachers’ 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 teachers received “letters of discipline” for using School Board technology for the log.
The arbitrator held that the teachers 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. The Ontario Court of Appeal overturned the Divisional Court, holding that the arbitrator and the majority of the Divisional Court erred in interpreting the teachers’ section 8 rights in their workplace.
Application of the Charter to School Boards
The SCC unanimously held that the Charter applies to Ontario public school boards on the basis that Ontario public school boards are governmental by nature. The SCC determined that Ontario public school boards are effectively an arm of government, as they exercise powers conferred on them by the provincial legislature. Public education also has a unique constitutional quality, exemplified by section 93 of the Constitution Act, 1867. Actions of school board agents or delegates, such as school principals, are therefore subject to Charter scrutiny.
Justice Rowe, writing for a majority of the SCC, stated that this analysis applies specifically to Ontario public school boards and did not determine the applicability of the Charter to public school boards in other provinces or to private schools. However, the principles upon which the SCC relied apply outside of Ontario as well.
Analytical Framework Applying to Workplace Privacy Issues
The SCC majority held that the arbitrator erred in conducting her analysis of workplace privacy rights by reference to management rights versus privacy rights of employees instead of applying the analytical framework under section 8 of the Charter. In situations where a Charter right applies, an arbitrator or administrative decision-maker must acknowledge and analyze that right. Mere reference to the existence of a Charter right without substantive analysis using the applicable framework is not sufficient.
Justice Rowe went on to consider the existence and scope of the reasonable expectation of privacy in a workplace context. The SCC majority held that analyzing whether the section 8 protection against unreasonable search and seizure has been violated involves two questions: First, whether there is a reasonable expectation of privacy, which is a contextual analysis based on the “totality of the circumstances.” Second, whether the search was reasonable, having regard to the terms of an applicable collective agreement. Arbitrators may continue to draw on existing arbitral jurisprudence regarding workplace privacy but must ensure that their analysis conforms with the section 8 framework.
The SCC did not consider whether the teachers’ section 8 rights were breached because the written reprimand had subsequently been removed from their records, making that issue moot.
Administrative Standard of Review
Justice Rowe held that, pursuant to the SCC’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, the correctness standard of review applies to administrative decisions assessing whether the Charter applies, as these decisions require a final and determinate answer by the courts and are not dependent on the particular circumstances of the case.
In Vavilov, the SCC held that the reasonableness standard of review presumptively applies to the judicial review of administrative decisions. The presumption of reasonableness review can be rebutted in certain instances, including when the administrative tribunal decides constitutional questions. The SCC’s decision in York Region widens the scope of “constitutional questions” and indicates that reviewing courts are to conduct their own analysis of the Charter’s applicability instead of deferring to the arbitrator or administrative decision-maker.
The SCC majority also applied the correctness standard to reviewing the arbitrator’s decision regarding whether the teachers had a reasonable expectation of privacy in the workplace. In both instances, the SCC majority found that the arbitrator erred in law and set aside her decision on this basis.
In a concurring opinion, Justices Karakatsanis and Martin agreed that the correctness standard of review applies to administrative decisions determining the Charter’s applicability but disagreed that it applied to the review of the arbitrator’s decision regarding workplace privacy. Justices Karakatsanis and Martin applied the reasonableness standard of review to the arbitrator’s decision and determined that the arbitrator’s decision as a whole was unreasonable.
Blakes acted for the intervener, Egale Canada.
