Public school teachers are protected against unreasonable search and seizure at the workplace
York Region District School Board v Elementary Teachers’ Federation of Ontario
2024 SCC 22
Supreme Court of Canada
Wagner CJ & SCJ; Karakatsanis, Cote, Rowe, Martin, Kasirer & Jamal, SCJJ
June 21, 2024
Reported by Faith Wanjiku and Betty Nkirote
Constitutional Law-Charter of Rights-application of the Charter-right not to be subjected to unreasonable search and seizure-teacher’s right to privacy while at work-where 2 teachers recorded their private communications about work concerns on a school laptop-where the school principal secretly took screenshots of the teachers’ private communications-where the screenshots taken by the principal formed the basis for the teachers’ reprimand by the appellant-whether the Charter applied to public school boards in Ontario-whether public school teachers were protected against unreasonable search and seizure while at the workplace-Canadian Charter of Rights and Freedoms, 1982, sections 8 and 32.
Administrative Law-judicial review-standard of review-review of the arbitrator’s decision on application of section 8 of the Charter to teachers at work-where 2 teachers challenged their reprimand which arose from screenshots taken by the school principal of their private communication-where the arbitrator dismissed the teachers’ grievance on the ground that section 8 of the Charter did not apply to teachers while at work-what was the appropriate standard of review of the arbitrator’s decision on the application of the Charter to public school boards.
Brief facts
Two teachers who were employed by the appellant recorded their private communications regarding workplace concerns on a shared personal password-protected log stored in the cloud. The school principal who had been made aware of the log, entered the classroom of one of the teachers and, in her absence, touched the mouse-pad of her board laptop. He saw the log that opened on the screen, read what was visible, then scrolled through the document and took screenshots with his cellphone. Subsequently, the screenshots taken by the school principal formed the basis for the appellant to issue written reprimands to the teachers.
The respondent filed a grievance against the written reprimands claiming that the search violated the teachers’ right to privacy at work. A labour arbitrator appointed pursuant to the collective agreement, dismissed the grievance on the basis that there was no breach of the teachers’ reasonable expectation of privacy when balanced against the appellant’s interest in managing the workplace.
The respondent filed a request for judicial review with the Divisional Court. A majority of the Divisional Court held that the arbitrator’s decision was reasonable and dismissed the request for review. Thereafter, the respondent appealed to the Court of Appeal which unanimously allowed the appeal.
Issues
- Whether the Canadian Charter of Rights and Freedoms (Charter) applied to public school boards in Ontario.
- Whether public school teachers were protected against unreasonable search and seizure while at the workplace.
- What was the appropriate standard of review of the arbitrator’s decision on the application of the Charter to public school boards?
Relevant provisions of the law
Canadian Charter of Rights and Freedoms, 1982
Section 8
Everyone has the right to be secure against unreasonable search or seizure.
Section 32-Application of Charter
(1) This Charter applies
- to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
- to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Held
- The determination of constitutionality called on the court to exercise its unique role as the interpreter and guardian of the Constitution. Courts ought to provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoyed could not vary depending on how the state had chosen to delegate and wield its power. The presumptive standard of reasonableness was thus rebutted and correctness applied.
- Ontario public school teachers were protected from unreasonable search and seizure in their place of employment under section 8 of the Charter. Despite their apparent functional resemblance, a right to a reasonable expectation of privacy that was entrenched in the Constitution was distinct in source and nature from an arbitral right to privacy. For one, state actors could not disavow their constitutional obligations no matter the terms of the collective agreement. At its core, the arbitrator’s reasons disclosed a fundamental error because she had the wrong right in mind. The arbitrator ought to have applied the Charter but failed to do so. Once she failed to appreciate the constitutional dimension of the searches conducted by the principal, there was no intelligible way for her to continue the analysis while fully engaging with the gravity of the alleged violations of the Charter right at issue. Courts could not dilute the sacrosanct nature of Charter rights by accepting a different substitute. Nor could courts supplant the reasons proffered by the decision-maker and read the reasons as if it applied a Charter right when in fact it applied a different right.
- It could be determined that an entity was itself government for the purposes of section 32 of the Charter. That was so where by its very nature or the degree of governmental control exercised over it the entity was akin to a government. Under that branch, where the entity was found to be government, the Charter applied to all its actions. That included those actions which would otherwise be described as private, were they carried out by a non-governmental actor.
- A review of the Education Act, 1995 (Education Act) confirmed that Ontario public school boards were government by nature. The section of the Act entitled purpose, highlighted the role that school boards played in the education system. Section 8 of the Education Act provided for extensive powers of the Minister of Education with respect to boards. Ontario public school boards were in effect, an arm of government, in that they exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves.
- Public education was inherently a governmental function. It had a unique constitutional quality, as exemplified by section 93 of the Constitution Act, 1982 and by section 23 of the Charter. The appellant was a manifestation of the government and thus, was subject to the Charter.
- The appellant was not a private entity carrying out a governmental activity. All actions carried on by the appellant were subject to Charter scrutiny, including the principal’s actions, in the instant case, as he acted in his official capacity as an agent of the appellant, a statutory delegate and not in his personal capacity.
- The principles governing remedial jurisdiction under the Charter applied to both courts and administrative tribunals. Tribunals ought to play a primary role in the determination of Charter issues falling within their specialized jurisdiction i.e., where the essential factual character of the matter fell within the tribunal’s specialized statutory jurisdiction. In exercising their statutory discretion, tribunals ought to comply with the Charter.
- There were practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available. Charter rights could be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants did not need to have separate recourse to the courts for their Charter rights to be vindicated. Where a Charter right applied, an administrative decision-maker ought to perform an analysis that was consistent with the relevant Charter provision.
- Administrative tribunals were empowered, and for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights applied. It was therefore incumbent on the arbitrator to proactively address the section 8 of the Charter issue that manifested itself on the facts of the grievance. It was insufficient to revert to a separate “well developed arbitral common law” privacy right framework, or to another framework, as the arbitrator did in the present instance.
- The Charter and relevant section 8 of the Charter jurisprudence were legal constraints that applied to the arbitrator’s decision. In other words, the arbitrator was required to decide the grievance consistent with the requirements of section 8 of the Charter. That would properly entail drawing on both the relevant body of arbitral decisions and the section 8 of the Charter jurisprudence.
- When a Charter right applied, it was not sufficient that the arbitrator made some references to the Charter jurisprudence. Any administrative action ought to, as a matter of course, always comply with the Constitution. However, when a Charter right applied, there ought to be clear acknowledgment of and analysis of that right. While the court recognized that administrative justice could not always take the form of judicial justice, nowhere in the arbitrator’s reasons, read functionally and holistically, did she indicate that she was considering the teachers’ section 8 Charter right. That was so because she failed to appreciate that section 8 of the Charter right was directly at stake and instead proceeded to conduct her analysis entirely within the arbitral framework and examined the teachers’ privacy right solely through the common law lens. That error was fatal. In addition to applying the wrong framework, the arbitrator’s error was compounded by her misapprehension of the content neutral approach, the concept of the biographical core and the doctrine of plain view under section 8 of the Charter jurisprudence.
- Ontario public school boards were government for the purpose of section 32 of the Charter. School board employees, including teachers enjoyed rights under section 8 of the Charter against unreasonable search and seizure in the workplace.
- The court’s criminal decisions and particularly in the school context could assist in determining the existence and scope of a reasonable expectation of privacy in the employment context. However, courts ought to be cautious in adapting section 8 of the Charter framework from the criminal law context to the employment context. The criminal law context could not readily be analogized to the context surrounding a principal performing their tasks in accordance with their statutorily mandated role of maintaining order in a school. Criminal law thresholds and considerations related to exigency and law enforcement objectives ought to not be the starting point for analysis in the employment context. Rather, in that context, the employer’s operational realities, policies and procedures could be relevant in determining the reasonableness of an employee’s expectation of privacy.
- Criminal law jurisprudence ought to not be indiscriminately imported into non-criminal matters. The analysis under section 8 of the Charter being contextual, needed to be adapted to occupational realities. For instance, the court had eschewed the requirement of prior authorization by a warrant to conduct searches of students by a school authority.
- Whether or not state action had interfered with a reasonable expectation of privacy was to be determined based on the totality of the circumstances. That was dispositive of both the existence and the extent of the reasonable expectation of privacy. Four lines of inquiry served as a guide:
- an examination of the subject matter of the search;
- a determination as to whether the claimant had a direct interest in the subject matter;
- an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
- an assessment as to whether this subjective expectation of privacy was objectively reasonable.
- Inevitably, the reasonable expectation of privacy took its colour from context. Thus, the employer’s operational realities, policies and procedures could affect the reasonableness of an employee’s expectation of privacy. The court’s jurisprudence recognized that the storing of personal information on a computer owned by the employer and the existence of a policy stating that data so stored belonged to the employer would tend to diminish the reasonable expectation of privacy. On the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy.
- What could be considered proportionate in a criminal context where penal liability was at stake, could look different in a labour relations context where the consequence, albeit serious did not threaten liberty. In evaluating the reasonableness of the impugned search at the second step of section 8 of the Charter analysis, arbitrators ought to have regard to employment relations under the terms of the collective agreements. The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, could properly inform the balanced analysis.
- The effect of the instant decision was not to displace existing arbitral jurisprudence, but rather to ensure that it respected Charter rights. Arbitral jurisprudence encompassed a considerable body of decisions that reflected a great breadth of experience. That would continue to play an important role in resolving grievances arising under collective agreements. However, such decisions ought to also be taken in a manner that allowed them to analyze Charter rights when they applied. That ought to inform their decision as to the grievance under the collective agreement.
Per Karakatsanis and Martin, SCJJ (concurring opinion)
- The arbitrator’s reasons demonstrated that she was reviewing the challenged conduct using the section 8 of the Charter framework as a touchstone. However, focusing on whether the arbitrator asked the right question and reviewing the arbitrator’s decision on the correctness standard overshot the ambit of the correctness exceptions. The issue before the arbitrator was whether the teachers’ privacy rights had been breached, an application and assessment which heavily depended on the specific factual and statutory context. As a result, the presumption of reasonableness review applied.
- Reading the arbitrator’s decision as a whole, and with sensitivity to the institutional and procedural context in which it was made, showed that she plainly understood that the Charter arose and section 8 of the Charter jurisprudence bore on the grievance. Both the appellant and the respondent relied on section 8 of the Charter before the arbitrator. The arbitrator cited section 8 of the Charter case law and expressly recognized that that case law applied section 8 of the Charter. The arbitrator engaged with the concepts of reasonable expectation of privacy, diminished reasonable expectation of privacy, plain view, and biographical core.
- Determining the engagement and scope of Charter rights would sometimes entail a highly context specific exercise, which the instant case exemplified. Not only would a search in an employment setting differ from a search executed by police officers in the course of a criminal investigation, the questions the arbitrator had to answer were heavily interconnected and dependent on the particular factual and statutory context. For instance, whether the principal interfered with the teachers’ reasonable expectation of privacy such that a search within the meaning of section 8 of the Charter occurred and whether the search was reasonable in that it was authorized by law and conducted reasonably. In answering those questions the arbitrator had to consider workplace realities in an educational setting, the interpretation of the Education Act and the authority it conferred to conduct workplace searches in schools, and the reasonableness of the principal’s exercise of authority at a particular place and time. Deference ought to be afforded to the arbitrator’s understanding of that critical, case-specific context, one in which there were no pressing need for judicially imposed uniformity.
- The arbitrator’s decision was not reasonable in light of the constraints bearing on it. The arbitrator relied on the specific contents of the teachers log in calibrating the privacy interest engaged and in determining the reasonableness of the search. That reasoning was inconsistent with the broad and content-neutral approach required by the normative nature of the section 8 of the Charter framework.
- While administrative and regulatory investigations could engage different interests from criminal investigations and could therefore import a different constitutional calculus than their criminal law analogues, the principle of content neutrality lay at the heart of the normative nature of privacy.
- Under the body of law that constrained the arbitrator’s decision, the actual contents of the teachers log could not reasonably be relevant to the question she was required to answer. The section 8 of the Charter jurisprudence made clear that the assessment of the teachers’ reasonable expectation of privacy did not depend on what the log actually contained. Rather, as the Court of Appeal accurately identified, what mattered was the potential for the search to reveal information touching on the teacher’s biographical core.
- In order for section 8 of the Charter to fulfill its promise of being preventative, it ought to be approached in broad and neutral terms. The information contained on Internet-connected devices, normatively, tended to reveal one’s specific interests, likes, and propensities, and as such it was at the very heart of the biographical core’ protected by section 8 of the Charter. The arbitrator’s conclusion to the contrary that the log was insufficiently close to the teachers’ biographical core was untenable in light of that proposition. The arbitrator’s reasoning on that point was not reasonably reflective of privacy’s normative aspirations.
Appeal dismissed with costs.
Relevance to Kenyan jurisprudence
Article 2 of the Constitution of Kenya states that:
2-Supremacy of this Constitution
- This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
Further, article 20(1) of the Constitution provides thus:
20-Application of Bill of Rights
- The Bill of Rights applies to all law and binds all State organs and all persons.
In affirming that the Constitution binds all persons, the court in [2019] eKLR held as follows:
I am clear in my mind that the Constitution in Articles 2 and 20 and the definition of the term “person” under Article 260 envisaged both vertical and horizontal application of the Bill of Rights; vertical application between the citizen and the State and horizontal application between one citizen and another citizen. Article 2 of the Constitution provides that ‘this Constitution is the supreme law of the land and binds all persons and all state organs at both levels of government’. Similarly, Article 20 provides that; ‘The Bill of Rights applies to all and binds all state organs and all persons’. Article 260 has defined a person as ‘including a company, association or other body of persons whether incorporated or unincorporated’.
While holding that the Bill of Rights applies to public schools in Kenya, the Court of Appeal in the case of the Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others (Civil Appeal 172 of 2014) [2017] KECA 751 (KLR) (3 March 2017) (Judgment) (Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others [2017] eKLR), observed thus:
There is no doubt that the adoption in 2010 of a Constitution which enshrines a detailed, liberal and robust Bill of Rights was a milestone in the constitutional history of Kenya. Declared by article 2 as the supreme law, the Constitution binds all persons and all organs of State including the respondent. The Bill of Rights is regarded in article 19 as the cornerstone of democracy and the framework for social, economic and cultural policy.
Thus, it follows that the Bill of Rights of the Constitution of Kenya applies both vertically and horizontally. This in effect means that the provisions of the Bill of Rights are binding on both private and public entities. It provides guarantees against the violations of the constitutional rights of all persons and hence applies to any person, whether a natural person, company, association or other body of persons whether incorporated or unincorporated or against any public entity.
With respect to protection of employees against unreasonable search and seizure while at the workplace, article 31 of the Constitution provides as follows:
31-Right to privacy
Every person has the right to privacy, which includes the right not to have—
(a)their person, home or property searched;
(b)their possessions seized;
(c)information relating to their family or private affairs unnecessarily required or revealed; or
(d)the privacy of their communications infringed.
In Peris Nyambura Kimani v Dalbit Petrolium Limited [2015] eKLR the court held thus:
The right to privacy is non-derogable. It cannot be limited for any purpose and more so for an employee as defined under section 2 of the Employment Act. The rights due to an employee at the workplace include the respect to their right to privacy. Where this is violated, the impact of it is that the inherent dignity of the employee is left naked. Such a fundamental violation is contrary to Article 28 of the constitution. Where done by any party against another and this is brought to the attention of the Court such as the case here, and there is no justification to the same, such an employee, where an unfair practice is proved is awarded damages. On the other hand, where there is a constitutional violation such as under Article 28, 31 or any other provision of the Constitution other than unfair labour practice, the Court under the powers granted in section 12 of the Industrial Court Act is to award damages to such an employee.
However, where an employee uses a computer owned by an employer to store personal information, the employee’s reasonable expectation of privacy is diminished. In Terrry Muringo Muchiri v K-Rep Group Limited [2021] eKLR the court rendered itself thus:
Where an employer allocates an employee work tools and including an email address, such is part of the employer’s property and any communications with regard to official business of the employer via such tools remains the assets and property of the employer. Access and dealing with such property cannot be restrained. The property owner has the right to deal as deemed fit and necessary.
Consequently, employees in Kenya have a right to privacy at work regardless of whether they are employed by a private or public entity. Notably, as illustrated above, the Bill of Rights applies both vertically and horizontally. This essentially means that the Bill of Rights binds the state and private citizens. As such, employees in Kenya are under article 31 of the Constitution protected against unreasonable search and seizure while at work. The only exception is where the employee is allocated work tools such as a computer by the employer. In that case, the employees’ reasonable expectation of privacy is diminished.
This case is therefore relevant to Kenyan legal system as it enlarges Kenyan jurisprudence on the protection of the employees’ right against unreasonable search and seizure while at the workplace.