In a unionized workplace, disputes that arise between the parties are generally resolved through the grievance process set out in the collective agreement. Unions are able to challenge discipline or termination of employees through an arbitration process, where employers have an onus of demonstrating that just cause existed for the discipline.

The recent case of Elementary Teachers Federation of Ontario v York Region District School Board before the Court of Appeal for Ontario shows the full possible process of such a challenge, where the decision of the arbitrator is appealed through the court system.

In this important decision, the Court of Appeal had to decide whether the private communications of two teachers read by the principal and then used by the employer to discipline the teachers should have been protected by the right to privacy under the Canadian Charter of Rights and Freedoms (Charter).

The grievors recorded notes on a personal email account

Two teachers employed to teach grade 2 at a public school in the York Region felt that another grade 2 teacher was not being an effective member of the group and was receiving preferential treatment from the school principal. One of them contacted the union and was told to keep notes about her concerns.

She decided to start a log using her personal email account and authorized the second grievor to have access. It was password protected and a place where both teachers could add notes. It could be accessed on an internet browser on a workplace laptop but was not saved on any workplace drive.

The employer disciplined the grievors after the principal discovered the log

The principal, concerned about a toxic work environment and after being told that the grievors were keeping a log, entered one of the grievors’ classrooms and touched the mousepad of the laptop. The log opened on the screen and he took screenshots, later passing them to the employer.

The school board issued letters of discipline to the grievors for failure to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. It placed reprimands on their files for three years for using workplace technology to maintain a log about the principal and another teacher.

The union grieved the discipline, seeking to have the reprimands rescinded and $15,000 in damages for each grievor for breach of their privacy rights.

Arbitrator found that the grievors’ reasonable expectation of privacy was not breached

The arbitrator appointed under the collective agreement to hear the grievance found that the grievors set up the log to operate privately. However, leaving the log open on a board laptop meant that the teacher had a diminished expectation of privacy.

The arbitrator found that the principal’s duty under the Education Act to ensure a safe school environment authorized reasonable searches and seizures without prior judicial authorization. This allowed the board to search its IT platforms for the log.

Furthermore, the principal had the authority to check that the laptop had been switched off at the end of the day and came across the log by chance. The arbitrator decided that the grievors’ reasonable expectation of privacy was not breached by the principal looking at and taking screenshots of the log, given that they had left the log in plain sight and it contained notes of what was happening at the workplace rather than biographical information.

Court of Appeal explains that the Charter applies to the board’s actions

Justice of Appeal Huscroft, writing on behalf of the Court of Appeal, explained that school boards were a branch of government subject to the Charter. His Honour said that section 8 of the Charter, which provides the right to be secure against unreasonable search or seizure, applied to the actions of the principal and the school board.

Grievors had a reasonable expectation of privacy

Justice Huscroft explained that determining whether the grievors had a reasonable expectation of privacy required consideration of the “totality of circumstances”, including the subject matter of the search, whether the grievors had a direct interest in the subject matter, whether they had a subjective expectation of privacy in the subject matter and whether the subjective expectation of privacy was objectively reasonable.

Firstly, his Honour found that the subject matter of the search was the grievors’ personal messages to one another stored in offsite memory storage space. They had a direct interest in the information contained in the log because they each contributed to the personal conversation.

They had a subjective expectation of privacy that was not diminished by using the board’s computer to access the log. Despite the “careless oversight” of not closing the computer, they had every reason to expect that their conversation was private. Finally, their subjective expectation of privacy was objectively reasonable given that the log was simply an electronic record of their private conversations. His Honour concluded:

The grievors’ reasonable expectation of privacy in their log was not diminished as it would have been if, for example, the grievors had deliberately provided access to the log to third parties; stored their log on the Board’s laptop computers where it would be widely accessible; or were otherwise indifferent to their privacy.

Principal’s actions violated the grievors’ reasonable expectation of privacy

Justice Huscroft explained that while principals have a power of search and seizure, this power may seldom be exercised with teachers and the nature of the search permitted will be limited. His Honour held that once he found the log, the principal had no legitimate purpose in reading it and he failed to respect the grievors’ reasonable expectation of privacy.

The Court of Appeal decided that the principal’s actions violated the grievors’ reasonable expectation of privacy and constituted an unreasonable search under section 8.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Assistance with Discipline or Discharge Grievances

At Grosman Gale Fletcher Hopkins LLP our team of knowledgeable, highly-respected labour lawyers have been advising unionized employers about discipline or discharge grievances since 1983. We help clients from across all sectors through the grievance process, advise on short-term and long-term strategies, and help maintain positive ongoing workplace relations. Contact us online or at 416-364-9599 to schedule a consultation for your labour relations issue.