Public school boards are bound by Charter; tribunals’ Charter rulings reviewed for correctness: SCC

Law360 Canada (June 21, 2024, 6:46 PM EDT) -- In an important Charter and standard of review case, the Supreme Court of Canada has ruled that labour arbitrators and other administrative tribunals “should play a primary role” in deciding Charter issues within their bailiwicks — which Charter determinations courts should review on a “correctness” rather than “reasonableness” standard — and that the Charter applies to Ontario public school boards, thereby protecting board employees’ reasonable expectations of privacy in their workplaces and shielding employees from unreasonable search or seizure by their employers.

On June 21, 2024, the Supreme Court 7-0 rejected the appeal of the York Region District School Board and upheld a unanimous decision of the Ontario Court of Appeal in favour of the respondent union: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22.

The Court of Appeal panel below had quashed a labour arbitrator’s dismissal of a grievance brought by the respondent Elementary Teachers’ Federation of Ontario, on behalf of two new Grade 2 teachers. The teachers received formal written reprimands after their private communications with each other in a joint online “log” about their workplace concerns — contained in a Google doc in the cloud accessible through their personal password-protected Google accounts — were exposed, read and recorded via screenshots by their school principal after one of the teachers inadvertently failed to close the document she had accessed on the laptop the school supplied her at work (the document was never saved to any board-owned computer or board-controlled drive): Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476.

(The Supreme Court ruled that because the written reprimands for the incident, which took place during the 2014-15 school year, were removed from the teachers’ file after three years, the issue of the reprimand was moot and did not have to be returned to the arbitrator for further consideration.)

A labour arbitrator appointed pursuant to the parties’ collective agreement, dismissed the grievance that claimed that the principal’s search violated the teachers’ right to privacy at work. She determined that there was no breach of the teachers’ reasonable expectation of privacy when it was balanced against the school board’s interest in managing the workplace, but did not do a s. 8 Charter analysis, although the Charter was argued (however the union did not claim a Charter remedy).

Ontario’s Divisional Court, in a majority decision written by Justice Michelle O’Bonsawin before her 2022 appointment to the top court, upheld as reasonable the arbitrator’s decision dismissing the grievance. The school principal’s search did not raise any Charter issues because, unlike in a criminal context, an employee does not have a s. 8 Charter right in the workplace to be secure against unreasonable search, the majority held.

In allowing the appeal and quashing the arbitrator’s decision, the Ontario Court of Appeal ruled that: the Divisional Court’s majority erred; the Charter does apply to public school boards; and, after applying the correctness standard, held that the school principal’s search was unreasonable, in breach of the Charter’s s. 8 guarantee.

Writing for all seven Supreme Court judges on the Charter’s applicability, Justice Malcolm Rowe ruled that Ontario public school board teachers are protected by s. 8 of the Charter in the workplace because the school boards are inherently governmental for the purposes of s. 32 of the Charter, which identifies which entities are bound by the Charter. Entities bound by the Charter include federal and provincial legislatures and governments as well as entities controlled by a government or that perform governmental functions.

“All actions carried on by Ontario public school boards are 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 board, a statutory delegate, and not in his personal capacity,” Justice Rowe held.

The top court was unanimous in the result.

However, Justices Andromache Karakatsanis and Sheilah Martin wrote a joint concurrence that agreed with their five colleagues that the question of whether the Charter applies to Ontario public school boards had to be correctly determined by the top court and agreed also that the Charter applies to Ontario public school boards and all their activities, as these boards are, by their very nature, governmental.

The pair disagreed, however, with how the majority reviewed the decision of the arbitrator below. In particular, Justices Karakatsanis and Martin disagreed with the majority’s conclusion that correctness, rather than reasonableness, was the standard that should be applied in reviewing the arbitrator’s decision that the teachers’ reasonable expectation of privacy in the workplace was not violated.

“Reviewing the arbitrator’s decision on the correctness standard overshoots the ambit of the correctness exceptions laid down in Vavilov,” the concurring judges reasoned. “The issue before the arbitrator was whether the grievors’ 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 applies.”

Going on to review the arbitrator’s reasons on that standard, the concurring judges held that the arbitrator’s reasoning was not consistent with the principle of content neutrality, which lies at the heart of s. 8’s normative approach to privacy, and therefore her decision was unreasonable.

After applying the correctness standard, Justice Rowe held that the arbitrator erred by limiting her inquiry to the arbitral framework without considering the legal framework under s. 8 of the Charter that, as a matter of law, she was required to respect.

This was a fatal error, requiring the arbitrator’s decision to be set aside, the majority held.

“The effect of my conclusion on this point is not to displace existing arbitral jurisprudence but to supplement it in order to ensure the protection of constitutional rights in the workplace,” Justice Rowe explained. “The s. 8 framework being contextual, it must be adapted to account for the circumstances in which the Charter right is asserted.”

Justice Rowe reasoned that correctness review applied in the case at bar “because the issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of the analysis — is a constitutional question that requires a final and determinate answer from the courts and therefore falls within” the rule of law “exception” to the broad presumption of reasonableness review established by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Vavilov does not restrict the scope of “constitutional questions” that are an exception to the presumption of reasonableness review “to only issues of federalism and the constitutional delegation of state power to administrative decision‑makers,” Justice Rowe wrote. Vavilov “used non‑exhaustive language in articulating the constitutional questions category, including within it ‘other constitutional matters.’ This category should not be unduly narrowed.”

Justice Rowe noted that the arbitrator in the case was broadly empowered, by Ontario’s Labour Relations Act, 1995 to answer questions regarding all differences between the parties arising from the interpretation, application, administration or alleged violation of the collective agreement, including any question as to whether a matter is arbitrable.

“Thus, the arbitrator has the power to decide questions of law and was, therefore, required to decide the grievance consistent with the requirements of s. 8 of the Charter.”

He explained that this would entail drawing on both the relevant body of arbitral decisions and the s. 8 Charter jurisprudence. “However, the arbitrator approached her task differently, conducting an analysis by reference to management rights versus privacy interests of employees,” he observed.  “When a Charter right applies, it is not sufficient that the arbitrator made some references to the Charter jurisprudence. There must be clear acknowledgment of, and analysis of, that right. While administrative justice may not always take the form of judicial justice, nowhere in the arbitrator’s reasons, read functionally and holistically, did it indicate s. 8 Charter rights were being considered.”

The majority underscored that “administrative tribunals are competent to and tasked with the work of adjudicating Charter questions where they arise.”

Administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, “have the authority to resolve constitutional questions that are linked to matters properly before them and must act consistently with the Charter and its values when exercising its statutory function,” Justice Rowe wrote. “The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals.”

He said that “tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction.”

Justice Rowe reasoned that this is in part an access to justice issue. There are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available.

Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated, he said.  “Where a Charter right applies, an administrative decision‑maker should therefore perform an analysis that is consistent with the relevant Charter provision.”

Howard Goldblatt of Toronto’s Goldblatt Partners LLP, who with Kiran Kang represented the successful respondent Elementary Teachers’ Federation of Ontario, told Law360 Canada what the Supreme Court of Canada has done “is reinforce that educators and others [employed by public school boards] in Ontario ... do have significant Charter protections in the workplace.”

“We’re tremendously pleased by the decision, especially because we finally have, at least in Ontario, a determination that the Charter does apply to school boards, which was a fundamental focus of our submissions, so it’s very gratifying to hear and to see that the entirety of the court agreed with that,” he said.

The court also confirmed that whether one applies the correctness or the reasonableness standard of review, the arbitrator’s decision is unsupportable, he said.

Goldblatt said the court’s decision that the Charter is applicable will apply not only to public school boards but also to separate school boards in Ontario. Moreover, “we’re just beginning to absorb the significance of this decision,” he remarked, including what its implications might be for Charter protections in school workplaces, beyond the s. 8 guarantee, such as for the Charter’s s. 2(b) guarantee of freedom of expression.

Cheryl Milne, executive director of the intervener, David Asper Centre for Constitutional Rights at the University of Toronto, said the decision marks the first time the Supreme Court has addressed the application of the Charter to school boards so clearly.

“The majority held that the decision of the arbitrator in this case was a constitutional question and that dictated the standard of review of correctness,” she noted. “Given this conclusion, they did not address the application of the decision in Doré, which the court has previously stated remains good law. So, there is still some ambiguity around Charter values and the reasonableness standard when a decision impacts Charter interests or rights but does not meet the qualifications here for Charter application.”

Milne said the ruling “clearly applies” to all public and separate school boards in Ontario but suggested that “it likely does not apply to private schools because they are less stringently regulated and generally don’t receive public funding to carry out government activities.”

“What this means for our public school system, which includes separate school boards, is that all persons in positions of authority must be aware of, and apply, the Charter in their interactions with employees and students,” Milne advised. “In the past, school boards have generally conducted themselves based on the applicability of Charter values, but this case takes that further.”

With respect to administrative law, she said the decision should be read in conjunction with Vavilov and the court’s recent decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), which reaffirmed Doré v. Barreau du Québec, 2012 SCC 12.

Gerald Chan of Toronto’s Stockwoods LLP, who with Olivia Eng represented the intervener Canadian Civil Liberties Association (CCLA), said the CCLA “is pleased that the majority judgment found that teachers are protected by s. 8 of the Charter in the workplace and that the arbitrator’s decision misapprehended the principle of content neutrality and the related ‘biographical core’ concept under s. 8. This was the focus of the CCLA’s submissions before the court.”

He said the concurring reasons of Justices Martin and Karakatsanis are “helpful in expanding upon the content neutrality and biographical core points in a way that echoes the CCLA’s submissions.”

“In order for s. 8 to fulfill its promise of preventing privacy breaches before they happen, the s. 8 analysis must be done in a broad and neutral way,” Chan explained.  “Whether an individual’s privacy rights are engaged cannot depend on the specific contents of what they’re writing in a log or text conversation. Otherwise, you’d encourage school boards and other government actors to read the logs/conversations before asking themselves what they have to do to comply with s. 8 of the Charter.”

Explained Chan, “What matters is whether the search has the potential to reveal information touching on one’s biographical core. And information contained on Internet-connected devices lies at the heart of the biographical core because of its tendency to reveal our ‘specific interests, likes, and propensities.’”

Chan added that the court set out well-established s. 8 principles, “but it is very useful to get them reinforced because these principles are fundamental to the way we think about privacy under s. 8. Their impacts will be felt beyond the school board context and, more broadly, in any case that engages privacy rights under s. 8 of the Charter.”

The intervener British Columbia Civil Liberties Association (BCCLA), represented by Fraser Harland of Olthuis Van Ert in Ottawa, said in a media release that it “welcomes the court’s ruling that the questions of whether and how the Charter applies in a particular case must be answered consistently. Whenever the Charter does apply, administrative decision-makers must faithfully heed its requirements.”

“With the trend towards more school liaison officers, or police in schools, protecting privacy rights within schools is more important than ever,” Vibert Jack, the BCCLA’s litigation director, said in a statement. “This decision represents a key victory for civil liberties in Canada.”

Counsel for the appellant school board could not be reached for comment at press time.

Photo of Justice Andromache Karakatsanis: Jessica Deeks Photography, SCC Collection
Photo of Justice Malcolm Rowe: Andrew Balfour Photography, SCC Collection
Photo of Justice Sheilah Martin: SCC Collection

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