Canadian Workplace Privacy Rights: Reinforced by Ontario Court of Appeal
A recent court decision has served to reinforce the rights of Canadian employees to privacy in the workplace, particularly in the case of public sector workers to whom the Canadian Charter of Rights and Freedoms applies. This may have substantial implications across a variety of workplaces across the country, both union and non-union, and across the public and private sectors.
In its decision in Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 (“York Region”), Ontario’s Court of Appeal overturned the decision of a labour arbitrator, where the arbitrator had found that a school board’s search and seizure of classroom laptops was reasonable.
The decision in the York Region case involved two school teachers employed by the School Board, who has received written reprimands for maintaining an online log which listed information about certain of their colleagues. The evidence in the case was that this log, which was both stored online and on a personal Google drive, had been created because the two had concerns about preferential treatment among staff who worked for the Board.
The Board discovered the existence of the log when the relevant school Principal entered a classroom outside of school hours and accessed a laptop which belonged to one of the two teachers. After discovering that the log was open on the laptop screen, the Principal then used his cellphone to take screenshots of a large number of entries in the log. A Board investigation into potential misconduct by the teachers soon followed. This then resulted in both of the two teachers having their classroom laptops seized and searched as part of the Board’s investigation.
The Union which represents the two teachers filed a grievance under the applicable collective agreement, claiming that the Board had violated the privacy rights of the teachers by accessing the laptops without proper justification.
At arbitration, the labour arbitrator held that the Board’s right to manage its operations, which includes maintaining order and discipline in the school, supported the search of the laptops. The arbitrator held that the Board’s obligations to maintain order outweighed the personal privacy interests of the teachers. One notable factor was that the expectation of privacy was considered to have been diminished because the online log had been left open on a classroom laptop which had been provided by the Board. Further, the relevant information could be accepted by any teacher or Board.
The Union filed an application for judicial review of the arbitrator’s decision with the Ontario Divisional Court, which upheld the arbitrator’s decision. The Divisional Court held that the Board’s approach in the case involved a search which was based on reasonable cause, which included proper concerns raised by co-workers about the two teachers being investigated.
The judicial review decision was then appealed to the Ontario Court of Appeal, which overturned the earlier decisions, finding that the Board’s search was unreasonable.
The Court of Appeal’s analysis began by confirming that the actions of the Board as a public body are subject to Charter review. The Court then proceeded to find that the two teachers had a reasonable expectation of privacy with respect to their log. This conclusion was based on a careful review of all of the circumstances, including that: (1) the subject matter of the search was personal messages which employees traded with each other, which were stored in the cloud and not on a Board device or server; (2) the individual employees each had a direct interest in the subject data, since their individual statements in the log had resulted in them being disciplined; (3) there was a personal and subjective expectation of privacy based on how the log was created and used, including through a password protection on the log; and (4) it was objectively reasonable to expect that the log would be deserving of protection (and thus private) since it amounted to an electronic record of private conversations which contained personal information. The use of a Board-issued computer, said the Court of Appeal, did not diminish this expectation of privacy.
The Court of Appeal rejected entirely the argument that the log had been visible to the Principal, such that he had a right to review it. The Court held that the Board had no legitimate or proper purpose in reviewing the log or taking screenshots of it. The actions of the employer were held to be inappropriate since they amounted to an attempt to discover the private thoughts of the two employees.
Takeaways for Employers
The York Region decision highlights the importance of considering and respecting the rights of employees (within limits) to privacy in the workplace. This will be particularly the case in the public sector, where individuals may have a greater right to privacy due to the protections afforded by the Charter. This specific outcome is somewhat surprising since the two employees were held, by one of Canada’s most influential appellate courts, to have an expectation of privacy even when using an employer-issued device. This ruling highlights the importance of developing, implementing and consistently administering relevant rules and policies regarding technology use and computers and other tools provided to employees. The outcome also confirms that investigations must be conducted with care, and searches must be based on a proper and legally reasonable rationale.