York Region District School Board v Elementary Teachers’ Federation of Ontario: The Application of the Charter to Ontario School Boards

In York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 [YRDSB], the Supreme Court of Canada (“SCC”) reviewed an arbitrator’s decision regarding the reasonable expectation of privacy of two teachers at an Ontario public school. The majority conducted a correctness review to set aside the arbitrator’s decision, holding that the Charter applies to Ontario public school boards and that the teachers’ privacy rights were breached.

Facts

During the 2014–2015 academic year at a York Region District School Board (“Board”) public school, two teachers—Shen and Rai—suspected that the principal was giving preferential treatment to a low-performing colleague and that they would receive poor performance reviews because of this (YRDSB, paras 7-8). After contacting the Elementary Teachers Federation of Ontario (“Union”), a representative advised Shen to keep a record of her concerns (YRDSB, para 9).

Shen created a cloud-based private log on her personal Gmail account, which she made available for Ren to access and edit (YRDSB, para 10). Other staff became aware of this log and informed the principal, though a subsequent IT search did not reveal any relevant content on the Board’s data storage (YRDSB, para 11).

In December 2014, the principal entered Shen’s classroom to return certain materials (YRDSB, para 12). Shen was not present, and her Board laptop was open. The principal noticed an open document on the laptop entitled “Log Google Docs,” which he read and photographed with his cellphone.

The principal informed the Board superintendent, and they agreed to seize the Board laptop (YRDSB, para 13). The principal then shared the photos with the Board, which, in January 2015, responded by reprimanding Shen and Rai for violating the Ontario College of Teachers’ Standards of Practice (YRDSB, paras 13–14). In February 2015, the Union grieved the Board’s discipline, seeking to rescind the reprimands and an award of $15,000 for each of Shen and Rai for breach of their privacy (YRDSB, para 15).

Judicial History

Arbitrator’s Decision, 2018

The chief issues before the arbitrator were (1) whether a reasonable expectation of privacy attached to the log and (2) whether the principal and Board breached that expectation (YRDSB, para 18). Although the question of a s. 8 Charter violation was not formally before the arbitrator, s. 8 jurisprudence informed her decision.

Relying on the guidance of R v Cole, 2012 SCC 53 and relevant arbitral jurisprudence, the arbitrator dismissed the Union’s grievance, finding that the Board’s “legitimate interest” in maintaining a well-ordered and healthy working environment outweighed the grievors’ “diminished” reasonable expectation of privacy (YRDSB, paras 20, 26). The arbitrator found that several facts diminished the reasonable expectation of privacy such as that the log was left open and accessible on Shen’s Board computer (YRDSB, paras 21, 29). Importantly, the log did not disclose any information related to the grievors’ biographical core (YRDSB, para 29).

Ontario Superior Court of Justice (Divisional Court), 2020

The Divisional Court reviewed the arbitrator’s decision under a reasonableness standard and found that the principal’s actions were reasonable and consistent with his duties set out in s. 265 of the Education Act, RSO 1990, c E2 (YRDSB, para 35). The majority found that the arbitrator reasonably applied the relevant privacy jurisprudence. Her conclusion that the log did not reveal the “Grievors’ biographical core” was likewise reasonable (YRDSB, paras 36-37).

The majority also addressed the dissent’s application of Charter principles and jurisprudence, stating, “[u]nlike in a criminal context, in a workplace environment, an employee does not have a s. 8 right to be secure against unreasonable search and seizure” (YRDSB, para 38).

Sachs J delivered the dissenting reasons, in which she concluded that the arbitrator’s decision was unreasonable. She emphasized that employees retain their s. 8 Charter rights at the workplace and that the Board is a “state actor.” She found that the reasonableness standard of judicial review applied, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] (YRDSB, paras 40-42).

In concluding that the arbitrator’s decision did not reasonably balance the Board’s statutory objectives with the grievors’ s. 8 Charter rights, Sachs J pointed to three errors in her reasoning: (1) she disregarded the SCC’s earlier guidance in R v Marakah, 2017 SCC 59 and R v Wong, [1990] 3 SCR 36 against using the results of a search to justify a violation of privacy; (2) she mistakenly concluded that the log did not engage the grievors’ biographical core; and (3) she applied an erroneous understanding of the “plain view” doctrine. The principal did not simply interact with the laptop to reveal the log in “plain view,” but rather proceeded to actively search it (YRDSB, paras 45-47).

Court of Appeal for Ontario, 2022

The Court of Appeal unanimously overturned the arbitrator’s decision on the grounds that she misunderstood s. 8 of the Charter and that her dismissal of the grievance was thus unreasonable. While the Court of Appeal deferred to the arbitrator’s findings of fact, it held that the grievors’ reasonable expectation of privacy was a question of law requiring a correctness review (YRDSB, paras 49-50).

It was sufficient for the Court of Appeal to determine that school boards are subject to Charter constraints without deciding under Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [Eldridge] whether that is because (1) they are per se governmental or because (2) they perform governmental functions (YRDSB, para 52).

Issues

The following three issues were before the SCC:

1. Does the Charter apply to public school boards in Ontario?
2. What is the appropriate standard of review?
3. Should the arbitrator’s award be set aside for failing to conduct an analysis under s. 8 of the Charter?

Decision 

The majority began by asserting that, under the Vavilov framework, the correctness standard applied to this case since it implicated a constitutional question of general application and thus demanded a “final and determinate answer” (YRDSB, para 62). The SCC also found that the Court of Appeal erred in its reliance on R v Shepherd, 2009 SCC 35 for the proposition that when courts review an administrative tribunal’s decision, the standard of review is based on administrative law principles. Rowe J instead reasserted the urgency of the correctness standard for questions of constitutionality (YRDSB, para 67). For Rowe J, the arbitrator’s failure to appreciate the difference between an “arbitral right to privacy” and a constitutionally entrenched right was an insurmountable error (YRDSB, para 68)

Rowe J then turned to the Eldridge framework, finding that the Charter applies to Ontario public school boards under its first branch. This determination expanded upon the SCC’s earlier jurisprudence which had thus far assumed that the Charter applies to school boards but did not definitively establish this with reference to either branch of Eldridge (YRDSB, para 74).

In considering the relevant features of the Ontario Education Act, Rowe J found that “Ontario public school boards are, in effect, an arm of government” (YRDSB, para 79). Significantly, s. 93 of the Constitution Act, 1867 and s. 23 of the Charter suggest that public education has a “unique constitutional quality” (YRDSB, para 81). On the other hand, Rowe J rejected that Ontario school boards are captured by the second branch of Eldridge, since “[t]hey are not private entities carrying out a governmental activity” (YRDSB, para 82).

The majority next addressed the arbitrator’s error in applying the wrong analytical framework. Based on the guidance of R v Conway, 2010 SCC 22 and the statutory mandate of the Labour Relations Act, 1995, SO 1995, c 1, Sched A at s. 48(1), Rowe J affirmed the arbitrator’s competence to address Charter issues (YRDSB, paras 85, 87). He highlighted the importance for access to justice reasons that Canadians vindicate their Charter rights in both courts and through “statutory powers and processes” (YRDSB, para 90). 

The arbitrator erred insofar as she displaced a full appreciation of s. 8 Charter principles and jurisprudence with “arbitral common law.” The balancing of management rights against the privacy interests of employees falls short of s. 8 constraints (YRDSB, paras 91-92). Rowe J, moreover, found unpersuasive his colleagues’ contention that the arbitrator implicitly conducted a s. 8 analysis even if she did not explicitly acknowledge having done so. First, Vavilov requires courts to review actual and not hypothetical justifications for decisions. Second, to the extent that the arbitrator engaged s. 8 considerations, she committed fatal errors already identified by the lower courts (YRDSB, paras 94-95).

The majority then affirmed in obiter that public school teachers have a s. 8 Charter right against unreasonable search and seizure in the workplace. Nevertheless, they cautioned against too readily importing criminal law principles into employment settings. Rather, Rowe J endorsed the use of contextual considerations such as policies and procedures as relevant aids for the application of s. 8 to the workplace (YRDSB, paras 98-99). 

To determine the reasonable expectation of privacy in such settings, Rowe J identified the following four guidelines:

(1) an examination of the subject matter of the search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable (YRDSB, para 102).

To determine the reasonableness of a search, the majority proposed that decision makers adapt the three-part inquiry of R v Collins, [1987] 1 SCR 26 [Collins] to the school context, as previously implied in R v M (MR), [1998] 3 SCR 393. According to the Collins framework, the reasonability of a search depends on its basis in law, the reasonability of the authorizing law, and the reasonableness of how that search is conducted (YRDSB, para 104).

In their concurring reasons, Karakatsanis and Martin JJ agreed with their colleagues regarding the applicability of the Charter to Ontario public schools under the first branch of Eldridge (YRDSB, para 108). However, they disagreed regarding the appropriate standard of review required by Vavilov, opting to conduct a reasonableness review. As they put it, “[c]ourts do not possess a monopoly over the adjudication of Charter-related issues in the administrative context” (YRDSB, para 122). Not all constitutional questions attract the heightened scrutiny of a correctness review, especially when they are fact- and statute-specific (YRDSB, para 127).

In contrast with their colleagues, Karakatsanis and Martin JJ held that the arbitrator appropriately used “the s. 8 Charter framework as a touchstone” (YRDSB, para 112). Nevertheless, her decision was unreasonable insofar as it did not uphold the principle of content neutrality (YRDSB, para 109).

Analysis

This decision is notable for affirming that Ontario public school boards are state actors under the first branch of Eldridge. They accordingly fall within the purview of s. 32(1) of the Charter and are liable to Charter scrutiny. Part of the SCC’s reasoning was that in conducting his search, the principal acted in his official capacity as the Board’s agent, which is itself a creature of provincial statute (YRDSB, para 82).

As this case shows, an important part of a principal’s duties is “to maintain proper order and discipline in the school.” Indeed, this responsibility takes pride of place in the enumeration of a principal’s duties in s. 265(1) of the Ontario Education Act. The Education Act likewise enumerates teachers’ responsibilities. S. 264(1)(e) sets out a public school teacher’s duty regarding discipline: “It is the duty of a teacher and a temporary teacher… to maintain, under the direction of the principal, proper order and discipline in the teacher’s classroom and while on duty in the school and on the school ground.” Because a teacher’s duty to maintain order and discipline appears to derive from the delegated authority of the principal (an agent of a state actor), it is worth considering how it might engage the constitutionally entrenched rights of students.

The SCC issued a signal defeat for the possibility of an important Charter protection of students in Canadian Foundation for Children, Youth and the Law v Canada, [2004] 1 SCR 76, in which it upheld the constitutionality of s. 43 of the Criminal Code, RSC 1985, c C-46. That provision permits a teacher’s “reasonable” use of corrective physical force. YRDSB may perhaps unintentionally subject teachers’ other disciplinary actions, authorised under a different legal framework, to additional challenges.