Ontario Court of Appeal Finds School Board Breached Section 8 of the Charter When Disciplining Grievors for Personal Document Left Open on School Computer

Previously printed in the LexisNexis Labour Notes Newsletter.

In Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, the Ontario Court of Appeal held that a school principal and the school board for which he worked had breached the employee right to be free of unreasonable search and seizure under the Canadian Charter of Rights and Freedoms (the “Charter”) when the principal went through a teacher’s personal document on a school laptop.

Facts

The school had a group of four teachers assigned to teach Grade 2 students.

A number of issues arose in the group and when brought to the union’s attention, the grievors – two of the four teachers who made up the group – were advised to maintain a log of any disputes.  They created a document tracking incidents and stored it on one grievor’s private Google account.  There had been reports of the existence of the log of disputes and complaints about a toxic workplace had been made to the principal.

On the day in question, one of the grievors left the Google document open and unmonitored on a laptop in her classroom. The principal went into the empty classroom and saw the laptop on the teacher’s desk. When he walked over, he saw that the screen was black and touched the mouse. When he did so, a document called “Log Google Docs” became visible. He read through the document and when he realized that it was the log of disputes, he took photos on his cellular telephone and sent them to the school board.

On reviewing the photos taken by the principal, the school board issued letters of discipline to both grievors for maintaining the log on school property and while on school time and using school technology. The union grieved the discipline.

Procedural history

At arbitration, the union’s grievance was dismissed. The arbitrator found that the grievors had a diminished expectation of privacy regarding the information stored on the laptop given that the log of disputes was left open and visible on a school laptop.

The union applied for judicial review of the arbitrator’s decision. The majority of the reviewing court held that the arbitrator’s decision was reasonable. The dissenting judge found that the Charter had been engaged, and the arbitrator unjustifiably limited the grievors’ rights and arrived at an unreasonable decision. The union appealed the majority’s decision to the Court of Appeal.

Decision

On appeal, the Court of Appeal held that the Charter and, specifically, section 8 applied in relation to the actions of the principal and the school board.  Further, it held that the grievors had a reasonable expectation of privacy over the contents of their document.

The Court found that the grievors were “entitled to record their private thoughts – including complaints about co-workers and supervisors – for their own purposes and to expect that those thoughts would remain private”.  The Court emphasized that the document accessed by the principal was stored in “the Cloud” and highlighted that the grievors had taken steps to protect their privacy.

In the result, the Court held the arbitrator erred in finding that the grievor’s inadvertent act of leaving the document open on a school laptop was sufficient to diminish their reasonable expectation of privacy.  The school board had violated the right to employee privacy and the arbitrator’s decision was quashed.

Takeaways

• Employees have a reasonable expectation of privacy in the workplace where incidental personal use of employer property is permitted.
• When implementing policies around computer use, employers should remain mindful of the balance between employer interests, including business and operational needs, and employee privacy.

 

Teodora Bardas is an associate at Roper Greyell LLP, an employment and labour law firm based in British Columbia.  She is interested in all areas of workplace law, including employment, labour and workplace human rights law.

For more information about Teodora and the Roper Greyell team, please visit www.ropergreyell.com.

 

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.