In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court has confirmed public school boards are government by nature, and are subject to the Canadian Charter of Rights and Freedoms.
For employees of a public school, this means privacy is covered under section 8 of the Charter, protection against unreasonable search and seizure. Employers, including school board members and members of management, must not infringe on a reasonable expectation of privacy unless authorized under the Charter.
Who Does the Charter Apply To?
The Charter is part of Canada’s Constitution Act and guarantees people certain rights and freedoms, such as equality rights, freedom of expression, and the right to be free from unreasonable search and seizure.
The Charter protections apply to infringements from government and government actors. For example, the police may act contrary to the Charter in the capacity of their profession, however, a private company that is not carrying on a government objective is not subject to the Charter. Human rights issues raised because of the actions of private individuals are a matter for human rights legislation, not the Constitution.
What Happened in this Case?
In a personal, password-protected log, two teachers had written to each other complaining about the work environment. The principal had been told about the existence of this log by other faculty, went into one of the teacher’s classrooms and accessed the log through the saved log password. He took screenshots of all the messages and these communications were then used as the basis for the school board to issue written reprimands to both teachers.
What did the Supreme Court Say?
The right to privacy in Canada is entrenched in section 8 of the Charter, which grants protection against unreasonable search and seizure.
To answer whether a school board is subject to the Charter, the Majority first decided that a school board is a government actor because the Education Act provides extensive powers of the Minister of Education over school boards. The exercise given to school boards by provincial legislatures confers powers and functions they would otherwise have to perform themselves.
In this set of facts, the principal was acting on behalf of the school board, the employer, in the position as a manager and a delegate of the statute. The breach of privacy was therefore subject to Charter scrutiny.
In order to have section 8 Charter protection, there must be a reasonable expectation of privacy. Contracts, policies, procedures, and operational realities are relevant in determining an employee’s reasonable expectation of privacy.
For example, if an employee stores personal information on a computer owned by the employer, and the employer has a policy stating that data stored on those computers belongs to the employer, this would diminish the reasonable expectation of privacy.
In this case, the teachers had a reasonable expectation of privacy because the private log existed on a personal cloud, which could be logged into via any computer. The content itself did not exist in the computer.
Limitations
Because school boards are governed by provincial legislation, the powers given by each province may be different. For this reason, the applicability to other provinces is left unanswered by this case. Each would require its own analysis.
Similarly, how this case applies to private school boards is also left unanswered. Private schools have a slightly different relationship with the Minister of Education in that they often have their own board of governance. Private schools would also require a separate analysis to determine whether they are of sufficient proximity to the Minister to be considered government.
What Does This Mean for Employees in the Private Sector?
Even though private sector employers and employees are not generally subject to the Charter, there are privacy protections that exist under statute and the common law, such as protection of personal information. In Ontario, most companies are required to have a policy and disclose to employees whether they electronically monitor employees, how they are monitored, and the reasons for doing so, under section 41.1.1 of the Employment Standards Act.
Contact Us
For employers, to ensure your business is compliant with provincial privacy laws, contact our workplace privacy lawyers today.
For employees, if you are concerned about workplace privacy rights or privacy infringements, schedule a consultation with one of our lawyers.
Disclaimer: The materials above are for general information purposes only. This is not legal advice. This is not specific to any one company. This does not suggest any improper conduct on the part of a specific employer.
Authors: Jonquille Pak and Ava Clarke
Date: July 4, 2024
