Teachers’ right to privacy: a decision of interest is expected from the Supreme Court of Canada

On June 21, 2022, the Court of Appeal for Ontario rendered a decision¹ concerning the extent of employees’ reasonable expectation of privacy in the workplace. The Court of Appeal decided inter alia that the protection against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) applies to employees of a public education institution. The Court also found that employees could have a reasonable expectation of privacy in respect of a communication that did not contain personal or intimate information directly concerning them, but information concerning their opinion of others.

In March of this year, the Supreme Court of Canada granted leave to appeal this decision.² The forthcoming judgment will definitely have an effect on how much leeway employers have to access their employees’ communications in connection with a workplace investigation.

The facts

On the recommendation of their union, two Ontario public school teachers decided to document their observations and concerns about a problematic situation at work on a digital log. Essentially, in their view, one of the other teachers was not an effective member of the group and was receiving preferential treatment from the school principal. It should be noted that the teachers took certain measures to safeguard the confidentiality of the log, including protecting it with a password and storing it in the Cloud. The school principal had been made aware by some staff members of the existence of the log and the toxic work climate it was creating.

Subsequently, the principal chanced upon the log, which was open on the computer of one of the teachers. The principal, who at that time was in a classroom, had noticed that the teacher’s computer was still on, even though classes had ended and the teacher had left the room. He then read and took screenshots of the entire log. Informed of this situation by the principal, the York Region District School Board (the “Board”) instructed him to confiscate and search the computers of the two teachers.

Following this search, the Board disciplined the two teachers and placed written reprimands on their files for three years. In the Board’s view, they had committed a fault by using computers provided by the school to maintain, during work hours, a log with more than one hundred entries concerning the principal and another teacher.

The union filed a grievance on behalf of the two teachers to challenge the reprimands and seek damages for breach of their privacy rights. 

Procedural history

The arbitrator who heard the grievance concluded that the employer’s actions did not violate the teachers’ reasonable expectation of privacy. According to her, the teachers had only a diminished expectation of privacy in information accessible from computers belonging to the school and intended for professional use. In her assessment of the principal’s conduct in reading and taking screenshots of the log, the arbitrator took into consideration the nature of the information entered in the log. More specifically, she stressed that the log did not contain personal or intimate information directly concerning the two reprimanded teachers. In the arbitrator’s view, the Board’s decision to search the computers was reasonable, since the log could have been stored on the school’s computer system. 

On judicial review, a majority of the judges of the Divisional Court upheld the arbitrator’s conclusions, specifying that the protection from unreasonable search or seizure under section 8 of the Charter did not apply to employees in the workplace.

The Court of Appeal’s decision

In a unanimous decision, the Court of Appeal allowed the appeal and quashed the arbitrator’s award. The Court determined, inter alia, that:

• The protection afforded by section 8 of the Charter is not limited to criminal matters. It applies to the actions of public institutions such as school boards, which the case law has recognized as a branch of government.
• The fact that a private communication contains biographical information of a personal nature is not a prerequisite for the communication to be protected by the right to privacy. Thus, employees can have a reasonable expectation of privacy in respect of a communication that does not contain personal or intimate information directly concerning them.
• The teachers’ expectation of privacy in respect of the log was objectively reasonable. In accordance with the principles established in the Cole decision,³ this expectation could not be diminished by the fact that the teachers used a computer belonging to the school to access the log or were negligent by leaving their computer turned on.
• While the Ontario Education Act⁴ (the equivalent of Quebec’s Education Act⁵) gives principals certain search powers, this is primarily to ensure student safety. In this case, while the principal had concerns regarding the work environment, he had no legitimate reason, such as a dangerous situation requiring urgent action, to read the log or take photographs of it and send them to the Board.

What is the takeaway for employers?

The extent of employees’ reasonable expectation of privacy in a work-related context depends on the circumstances of each case and is assessed initially on a subjective basis and then on an objective one. To reduce the extent of this expectation of privacy, employers could adopt specific policies or practices in connection with employees’ use of computer equipment and the Internet. That said, in connection with a workplace investigation, an employer wishing to check the content of certain communications must always weigh the goal sought against the employees’ privacy rights.

The Supreme Court will consider these questions shortly, and employers in Quebec would be well advised to pay attention to its conclusions in this regard. We will be following this decision closely. Please do not hesitate to contact a member of our team if you have any questions regarding the foregoing.

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¹  Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476.
²  York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2023 CanLII 19753 (SCC).
³  R. v. Cole, [2012] 3 SCR 34.
⁴  Education Act, R.S.O. 1990, c. E.2.
⁵  Education Act, CQLR, c. I-13.3.