Privacy Law Update
August 2022 Charity & NFP Law Update
Published on August 25, 2022

By Esther Shainblum and Martin U. Wissmath
   
 

Court of Appeal Finds Public Teachers’ Written Log About Colleagues Protected Under Charter

The Court of Appeal for Ontario (the “Court of Appeal”) has found that school teachers have a reasonable expectation of privacy with regard to their private and personal written communications among each other. In Elementary Teachers Federation of Ontario v York Region District School Board, the Court of Appeal overturned a Divisional Court decision and found that two Ontario elementary school teachers’ right to privacy was violated when their school principal read and took photographs of a personal log they kept about colleagues at the school. The principal had sent the photographs to the school board, which used them as evidence to discipline the teachers. The Court of Appeal held that the principal’s actions breached the teachers’ right to protection against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms (“Charter”).

Ms. Rai and Ms. Shen (the “grievors”) were Grade 2 teachers at an Ontario public elementary school who were having difficulties with another Grade 2 teacher and with their principal, Mr. Pettigrew (the “principal”). The arbitrator later described the workplace at the school as a “toxic” environment. After Ms. Shen contacted the union, she was advised to keep notes and records of her concerns. She did this over the course of the first few months of the 2014–15 school year using her personal Gmail account in a written log, which was password protected and saved on the Google internet cloud service (the “Log”), but accessed through a workplace laptop provided to her by the school. Ms. Shen gave Ms. Rai authorization to access the Log. Mr. Pettigrew learned about the existence of the Log by three other concerned people at the school and on December 15, 2014, he entered Ms. Shen’s classroom after hours, finding her workplace laptop open. The principal touched the mousepad to turn the screen on, and saw the Log. He then scrolled through the Log of about 100 entries to read it and took screenshots using his smartphone.

Mr. Pettigrew obtained authorization to confiscate the laptops from the school board superintendent, although nothing was found on the laptops themselves. The principal then forwarded the screenshots he had to the school board, which issued letters of discipline to the grievors in January 2015 with written reprimands on their files for three years, “for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice,” referring to their use of “Board technology” — the workplace laptops — “to access and maintain a log during Board time and had made approximately 100 entries about the principal and another teacher.” The teachers’ union grieved the discipline, seeking to have the reprimands rescinded and $15,000 in damages for each of the two teachers. By the time the lengthy arbitration had ended, three years had already elapsed, and the written reprimands expired, so the grievors decided to proceed on the basis that their right to privacy had been breached.

According to the Court of Appeal, both the arbitrator and the Divisional Court, to which the grievors appealed the arbitrator’s decision, had erred in finding that the grievors did not have a section 8 right to be safe from unreasonable search and seizure in their workplace. The Court of Appeal stated that the Charter does apply to school boards and that therefore section 8 applies to the actions of the principal and the school board. The Court of Appeal did not determine whether the Charter applies to school boards because they are inherently governmental in nature or because they perform a governmental authority of maintaining order and discipline in schools pursuant to the Education Act, but stated that this determination was not necessary for the purposes of the appeal and that it is enough to say that section 8 applies.

The Court of Appeal also held that the grievors had a subjective expectation of privacy in the contents of their personal conversations, which were password protected and were in “the cloud”, not stored in the Board’s computer. This expectation of privacy was objectively reasonable and deserving of protection, and was not eliminated by the grievors’ use of the Board’s computer to access the log or by their failure to shut the laptop. Although section 265 of the Education Act provides that it is a principal’s duty to maintain order and discipline at the school, the core of this provision is to ensure student safety and therefore the power to authorize search and seizures should seldom be exercised with respect to teachers and, if exercised, should be limited in nature. The Court of Appeal further stated that concerns arising out of employment relationships in the workplace are unlikely to justify a broad and flexible search and seizure authority. The Court of Appeal stated the principal was not entitled to read the grievors’ private thoughts to address his employment relations concerns, and emphasized that a persons’ thoughts about others constitute personal information. The Court of Appeal also found the Divisional Court erred by being overly deferential to the arbitrator, and by reviewing the decision on a reasonableness standard, when it should have been reviewed for correctness concerning a question of law and a Charter right.

Charities and not-for-profits should be mindful of the fact that searching employee’s personal electronic documents, even if they are accessed through a workplace computer, may be a breach of their privacy rights. Such a search may also be a violation of the Charter if the employer exercises governmental or statutory authority.

   
 

Read the August 2022 Charity & NFP Law Update