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Charter - Education. York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada considers application of the Charter [s.32] to "Ontario public school boards", here in a employer (labour) privacy context.
Here the court summarized it's Charter reasoning, up to and including at the SCC levels:[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.
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