Unreasonable Search and Seizure in the Workplace: SCC Grants Leave in YRDSB v ETFO
In Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 [Elementary Teachers], the Ontario Court of Appeal (“ONCA”) explored whether employees had a right to be protected against unreasonable search and seizure in the workplace under section 8 of the Canadian Charter of Rights and Freedoms [Charter]. Determining that employees have section 8 Charter rights, the ONCA also ruled on the scope of employees’ reasonable expectation of privacy, setting out important developments on this issue in the process. On March 16, 2023, the Supreme Court of Canada (“SCC”) granted the application for leave to appeal in this case.
Facts and Background
Ms. Rai and Ms. Shen were two of four teachers assigned to teach Grade 2 during the 2014-2015 school year at Mount Joy Public School in Markham, Ontario (Elementary Teachers, para 6). During this year, the four teachers began to experience issues with one another; specifically, Ms. Rai and Ms. Shen felt that one of the other teachers was receiving preferential treatment from the school principal, Mr. Pettigrew (Elementary Teachers, para 7). Ms. Shen contacted the Elementary Teachers’ Federation of Ontario (“union”) for advice, and the union advised her to keep notes about her concerns (Elementary Teachers, para 7).
Ms. Shen followed her union’s advice and started a log using her personal Gmail account (Elementary Teachers, para 8). The log was password protected and only accessible to her and Ms. Rai (Elementary Teachers, para 8). While both could access the log using an internet browser on a workplace laptop, it was stored in Ms. Shen’s private Google account and not saved on any workplace drive or laptop (Elementary Teachers, para 8). While other staff members did not know about the content of the log, some knew about its existence (Elementary Teachers, para 9). Three staff members had complained to Mr. Pettigrew about the “toxic” workplace environment and the possibility that Ms. Rai and Ms. Shen were keeping a log of their concerns (Elementary Teachers, para 10).
On December 16, 2014, after Ms. Shen had left for the day, Mr. Pettigrew entered Ms. Shen’s classroom and noticed that the school’s laptop that Ms. Shen used for her class was left open. He touched its mousepad, and a document called “Log Google Docs” opened on the screen. Mr. Pettigrew read through the document and realized he had found Ms. Rai and Ms. Shen’s log. He then used his cellphone to take about 100 screenshots of the log (Elementary Teachers, para 11).
Mr. Pettigrew informed the Superintendent of the York Region District School Board (“Board”) that he had read and obtained screenshots of the log. On the Superintendent’s instructions, Mr. Pettigrew confiscated Ms. Rai and Ms. Shen’s classroom laptops, which the Board later searched. He also printed the screenshots and forwarded them to the Board (Elementary Teachers, para 12).
In January 2015, the Board issued letters of discipline to Ms. Rai and Ms. Shen for using Board technology to access and maintain a log about the principal and another teacher during school time (Elementary Teachers, para 13). The union grieved the discipline, seeking $15,000 in damages for each teacher for breach of their privacy rights (Elementary Teachers, para 14). In accordance with the terms of the collective agreement, the grievance proceeded to arbitration to adjudicate Ms. Rai and Ms. Shen’s claim that their “right to privacy” had been breached (Elementary Teachers, para 14).
The Arbitrator’s Decision
The arbitrator found Ms. Rai and Ms. Shen had a diminished expectation of privacy concerning information accessible on the school laptops (Elementary Teachers, para 15). The arbitrator noted that the laptops were school devices designated for work purposes, not for the teacher’s exclusive possession and use (Elementary Teachers, para 15). Furthermore, Ms. Shen had left the log open on the laptop, which allowed Mr. Pettigrew to find the log when he touched the laptop’s mousepad (Elementary Teachers, para 19).
The arbitrator also found that Mr. Pettigrew, in his role as principal, had the authority to ensure that Ms. Shen’s laptop had been shut down by touching the mousepad (Elementary Teachers, para 22). Mr. Pettigrew only found the log by “pure happenstance” because Ms. Shen had left the log “in plain view on her classroom laptop” (Elementary Teachers, para 22). In regards to Mr. Pettigrew’s decision to read the log and take screenshots, the arbitrator noted that although the log included Ms. Rai and Ms. Shen’s point of view, it was “far from [containing] personal or intimate information” (Elementary Teachers, para 24). Once Mr. Pettigrew found the log, it was reasonable for the Board to search the laptop as it could have had the log in its storage (Elementary Teachers, para 25). Considering these factors, the arbitrator held that Ms. Rai and Ms. Shen’s diminished expectation of privacy was not breached (Elementary Teachers, para 25).
The Divisional Court
The union applied for judicial review of the arbitrator’s decision, arguing that the arbitrator erred by concluding that Ms. Rai and Ms. Shen’s reasonable expectation of privacy had not been breached by the employer’s actions (Elementary Teachers, para 26). Applying a reasonableness standard of review, the majority of the Divisional Court affirmed the arbitrator’s rulings on Mr. Pettigrew’s initial inspection of Ms. Shen’s laptop, the Board’s subsequent search of the laptop, and the nature of the information in the log (Elementary Teachers, para 27).
The majority also clarified that section 8 of the Charter should not factor into the analysis in this case because an employee in a workplace environment does not have a section 8 right to be secure against unreasonable search and seizure (Elementary Teachers, para 28). For the majority, the arbitrator correctly balanced the employees’ diminished expectation of privacy against the employer’s workplace management duty (Elementary Teachers, para 28).
In contrast, in her dissent, Justice Sachs held that the Charter was engaged because the Board is a state actor (Elementary Teachers, para 30). She found the arbitrator should have balanced the teachers’ section 8 Charter rights against the principal’s statutory objectives under the Education Act, R.S.O. 1990, c. E.2 (Elementary Teachers, para 30). Therefore, the arbitrator did not conduct the proper balancing analysis. As a result, the arbitrator unreasonably limited the teachers’ rights and sided in favour of the Board (Elementary Teachers, paras 30 and 32).
The union appealed the majority’s decision to the ONCA.
The Ontario Court of Appeal
In its unanimous decision, the ONCA addresses three key issues. The first was whether the Charter applied to the Board’s actions. To resolve this issue, the ONCA looked to case law, citing Chamberlain v Surrey School District No. 36, 2002 SCC 86 [Chamberlain], in which the SCC affirmed that a school board is a branch of government subject to the Charter (Elementary Teachers, para 39). The ONCA followed this assumption, noting that the SCC decided cases after Chamberlain on the same premise (Elementary Teachers, paras 40-41). By doing so, the ONCA clarified that the protection of section 8 was not limited to the criminal and quasi-criminal law context (Elementary Teachers, para 42).
The second issue was whether Ms. Rai and Ms. Shen had a reasonable expectation of privacy. On this issue, the key question was whether Ms. Rai and Ms. Shen’s expectation of privacy was objectively reasonable (Elementary Teachers, para 48). The ONCA answered in the affirmative, holding that the arbitrator made several errors. It found Ms. Shen’s decision to use the school laptop to access the log and her failure to close the laptop did not diminish her expectation of privacy (Elementary Teachers, para 51). While failing to close the laptop may have been careless, Ms. Rai and Ms. Shen took adequate measures to protect the privacy of their communications, including protecting the log with a password and storing it “in the Cloud” (Elementary Teachers, paras 50-51). In addition, the arbitrator erred by considering the “biographical core” concept as a prerequisite to protecting the right to privacy; the content of private communication is irrelevant to whether private communication should be protected (Elementary Teachers, paras 55-56).
The third issue was whether Mr. Pettigrew’s actions were reasonable. While the ONCA accepted that principals had the power to conduct searches and seizures within schools under their statutory authority under the Education Act, the ONCA held that this power was reserved more for ensuring the safety of students and should seldom be exercised to protect the welfare of staff members (Elementary Teachers, para 64). That said, the ONCA acknowledged that whether a reasonable expectation of privacy exists depends on the unique circumstances of each case (Elementary Teachers, para 65).
Considering the circumstances of this case, the ONCA found that even though Mr. Pettigrew came across the log by happenstance, he had no legitimate reasons to read the log or take screenshots of it and submit it to the Board (Elementary Teachers, para 67). While principals have some statutory authority under the Education Act, this was not a case which required urgent action due to imminent danger (Elementary Teachers, para 68). Mr. Pettigrew was not entitled to read Ms. Rai and Ms. Shen’s private thoughts to address his employment relations concerns (Elementary Teachers, para 70).
As the arbitrator made several errors in her decision, the ONCA allowed the union’s appeal and quashed the award of the arbitrator (Elementary Teachers, para 73).
One of the important takeaways from the ONCA’s decision was the affirmation that section 8 Charter rights exist for employees in the workplace. The ONCA ensured employees’ section 8 rights by relying on case law, including Chamberlain and cases following Chamberlain. Case law confirmed that school boards are branches of government subject to the Charter and that section 8 rights can apply to various contexts outside of criminal and quasi-criminal law, including the production of documents under the Income Tax Act and labour inspections under provincial legislation (Elementary Teachers, para 42). The ONCA went as far as to say that the arbitrator relied on frameworks from section 8 case law despite not explicitly referencing the Charter in her decision (Elementary Teachers, para 36). In contrast, there was no basis for the Divisional Court majority to conclude that section 8 rights did not apply to employees in the workplace. The ONCA’s ruling on section 8 rights is a positive development that the SCC should uphold as it will allow employees to pursue their work while being protected against unreasonable search and seizure in their workplaces by the Charter.
Another positive development in the ONCA decision is the court’s clarification of the role of the “biographical core” in determining section 8 rights for employees. The ONCA reasonably differentiated between considering whether a communication contains “biographical core” information as a factor rather than a prerequisite for finding reasonable expectation of privacy. Courts cannot conclude that there is no reasonable expectation of privacy attached to a communication between people simply because the communication does not reveal any intimate details about the people involved. It is realistic to expect that most, if not all, persons do not wish others to eavesdrop on what they consider to be private conversations, no matter the topic. Despite not revealing any personal information in their log, Ms. Rai and Ms. Shen did not want Mr. Pettigrew to read through their log. But if courts require a communication to reveal intimate details to grant a reasonable expectation of privacy to the communicators, as the Divisional Court majority suggested, then that would make many communications that people consider private no longer private in the eyes of the law. The ONCA recognized the dangers of this approach and ruled against the Divisional Court’s decision.
The ONCA also appropriately balanced the principal’s objectives to manage the school against the teachers’ expectation of privacy. Although Mr. Pettigrew had a duty to “maintain proper order and discipline” in his school under section 265 of the Education Act, he should not have infringed Ms. Rai and Ms. Shen’s reasonable expectation of privacy simply because he knew some staff members had branded the work environment “toxic.” As the ONCA pointed out, Mr. Pettigrew and his staff were not facing a situation where students were at risk. While Mr. Pettigrew was aware that the log addressed the school’s work environment, there was no guarantee or even a likelihood that he would find critical information in the log to address the issue. Given those considerations, Mr. Pettigrew’s search was unreasonable.
In its decision, the ONCA recognized the unreasonable conclusions of the arbitrator and the Divisional Court and set out positive developments that would benefit employees in their workplaces. The SCC should do the same by upholding the ONCA’s decision.