BWA: Every breath you take, I’ll be (unlawfully) watching you (York Region School District v. Elementary Teachers’ Federation of Ontario)

Yael Bienenstock (00:08): Welcome to Breakfast With Appeal, Torys’ quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that's shaping Canadian conversations. Let's dive in.

Andrew Bernstein (00:23): Okay, let's move to our last case, back to the Public Law Nerd Fest. This is an interesting privacy case relating to public school teachers’ internet activity on school board-owned technology. David, there are a lot of issues here. What are they and how did they arise?

David Outerbridge (00:38): So this is a pretty thought provoking case about, you know, as you say, the intersection between the private realm and the public realm. And it specifically involves infighting between grade two teachers, which, as you can imagine, is the type of thing that regularly finds its way to the Supreme Court. So the Supreme Court had a fairly dry description of what the case is about.

But I'll tell you what actually happened in a sec. So Supreme Court said two teachers employed by an Ontario public school board recorded their private communications about workplace concerns on a shared personal password-protected log stored in the cloud. So just pausing there at that point the Supreme Court is focusing on is the private aspect of what they were doing.

So these two teachers communicated with each other. They were sharing concerns about their workplace in a personal log, not a school log. It was in the cloud. It was password protected. This was never intended to be accessible to the school board. And so just to be clear about what we're talking about. So there's two grade two teachers. They were new teachers in this school.

They felt that another teacher was not effective, but was being preferred by the principal for the wrong reasons. And they were worried about how this preferential treatment for the other teacher would affect their own performance reviews. And they contacted their union, and the union said you should keep notes of your concerns. And so they did. In this log in the cloud, password-protected, private, not in a school network, etc.

So here is where the intersection with the public realm began. The principal of the school became aware of the log and so he actually had the school. IT staff try to find it on school systems. They couldn't find it because it was private and it was in the cloud. So then the school principal entered the classroom of one of the teachers at the end of the school day, when she was not there and accessed her laptop, found the private log which was open and scrolled through it, taking screenshots on the principal's phone.

And then the principal shared this with the school board, and the school board reprimanded the two teachers for breaching the Ontario College of Teachers’ Standards of Practice for the nature of their communications about their workplace. The teachers union challenged this discipline, claiming that it was a search that violated the teacher's right to privacy at work. They did not launch it as a Charter challenge.

This is not a section 8 unreasonable search and seizure challenge. This was a labour grievance based on essentially a labour-related right to privacy at work. And the labour arbitrator rejected the challenge, saying, you know, basically you've got to balance management versus labour interests here, and the management interests outweigh the labour interests. So they did not have a reasonable expectation of privacy here.

Went to the Divisional Court, which essentially found the same thing and did not, and specifically concluded that section 8 of the Charter did not apply, then went to the Court of Appeal, which said, no, this is actually a section 8 issue. The Charter does apply to public schools, and the search was they found an unreasonable Charter breach. So it goes up to the Supreme Court and the issues that are in front of the Court, which are all pretty interesting, are: number one, are public schools an arm

of the provincial government?

Number two, does the Charter therefore apply to public schools protecting teachers against unreasonable search and seizure by the school board? Other issues in the case have to do with the sort of quasi administrative aspect of the labour arbitrator regimes. So there's a question about whether labour arbitrators are empowered to make Charter decisions when they apply Charter decisions. Should they be applying the labour analysis of balancing management and labour interests, or should they be actually doing a rigorous section 8 analysis under the Charter?

And finally, what standard of review applies when labour arbitrator’s decision that is dealing with the Charter issue. So up to the Court it goes.

Andrew Bernstein (04:14): Okay, thank you David. It's such a complicated and kind of legally interesting case. So Jeremy, is a public school board subject to the Charter and why is this controversial? Because there was a school prior case in Sudbury in the 80s. So what's going on here?

Jeremy Opolsky (04:30): So fun fact, Andrew, the Court has actually never determinedly decided this question before this case. The Zylberberg case was the school prayer case actually was not a case about the actions of a school board. It was about the constitutionality of secondary legislation, in that case a regulation. So in that case, the regulation was being challenged. And the regulation is a law, and the law was found to be unconstitutional, and therefore that was the high and low of it.

There was never any section 32 considerations, but it does seem obvious to me that a school board is a governmental actor subject to the Charter, and so obvious that most courts, in most cases, have just assumed that it was without analyzing it. And in most cases, the Crown has just conceded that it was, and the Courts have proceeded apace.

And there's a whole other conversation, Andrew, about what we should do about Crown concessions and what precedential value they should have. But that's a different topic. I will say, though, that there were a few cases in Alberta, because of course they have gone the other way. So the Court says we need to decide this now. So this was the first case that the Supreme Court of Canada actually looks at this analysis from a case called Eldridge about whether the school board is a governmental actor.

And they find that, of course they are, because public education is effectively a governmental function. And school boards are therefore public by nature. But just because we need more appellate law on this, Justice Rowe says this is just Ontario, just applies to Ontario school boards. He leaves for a different day school boards in Alberta or Newfoundland.

Andrew Bernstein (06:02): [Laughter] Expressly—

Jeremy Opolsky (06:02): No notice.

Andrew Bernstein (06:03): Okay. Justice Rowe is famously from Newfoundland.

Jeremy Opolsky (06:06): P.E.I. too.

Andrew Bernstein (06:07): Yael, so once you're into Charter and section 8, you're into reasonable expectation of privacy. So tell us what the Supreme Court said about reasonable expectation of privacy in employment context and, you know, muse on the question of whether it has any implications for the private sector.

Yael Bienenstock (06:27): [Laughter] So this case confirms that the reasonable expectation of privacy under section 8 of the Charter does apply in the employment context. And I think that's, you know, in workplaces that are governed by the Charter. I think that's implicit in your question, it's not limited to the criminal context, which is what the majority had held in the Divisional Court when they considered this issue.

So when it comes to the framework, the Court is a little bit, I would say, nuanced about what the framework is as between the arbitration, labour context, and the criminal context. And so the Court says we can't just, yes section 8 applies, but we can't just indiscriminately import all of the section 8 law from the criminal context into this labour employment.

We have to adapt the analysis to deal with the workplace, including occupational realities of what's going on at work as opposed to the criminal context. So yes, employees are protected from unreasonable search and seizure in their place of employment under section 8, and that gives rise to a reasonable expectation of privacy. And the Charter right is distinct from the right to privacy that the arbitrator had considered, which was this more balanced right to privacy, where you're balancing it against management concerns.

The Court says they actually the arbitrator went wrong here because she considered the wrong right. And she didn't look at the section 8 Charter right. She looked at some different right to privacy. So once we're in the section 8 world, the question is, first of all, is there a reasonable expectation of privacy? And the second is whether the search or seizure is reasonable.

And when you're looking at the expectation of privacy, I think it's very similar to the criminal context. You look at all of these, it's always contextual, it's always context-specific. Just here obviously it's a different context. So the answers to the questions are going to be different. I think the questions are pretty similar. So you're looking at the subject matter of the search, whether the claimant has a direct interest in the subject matter, whether the claimant has a subjective expectation of privacy, and whether that subjective intention was reasonable.

And the Court says in the employment context, you also have to take into account, to the extent they're not already taken into account in these questions, the employer's operational realities, policies, procedures that can affect the reasonableness of the employment expectation of privacy. So it's still exactly the same highly context-dependent analysis, just in a different context when it—

Andrew Bernstein (08:52): No, sorry. Go ahead. I thought you were done. Go. My bad!

Yael Bienenstock (08:56): [Laughter] Well, you know we can talk about whether it was reasonable another time. But when you're supposed to do the second part where you ask, was this reasonable? This is really where the Court is quite careful about looking at it a little bit more through the labour context as opposed to the criminal context. And the Court says arbitrators should consider things like employment relations under the terms of the collective agreements.

They should consider the existing arbitral jurisprudence on this whole idea of balancing of interests, including the consideration of management rights under the collective agreement. So it sounds quite similar to what the arbitrator actually did. And it seems to be that the Court's main issue with the analysis below was that the arbitrator did not identify the fact that there is a section 8 Charter right here. She just jumped right into the arbitration jurisprudence on right to privacy in the employment context.

Andrew Bernstein (09:48): So interesting. David, it's well known that you were briefly a criminal lawyer. So the Court does say that it's treating the employment context different from the criminal context. Does that sit with you when we're talking about a single Charter right, how do you reconcile having these differences?

David Outerbridge (10:05): I mean, conceptually, the idea that the analysis of what is unreasonable would be different when you're talking about sending somebody to jail versus dealing with labour relations in a school it’s fine with me in the sense that the interests are different. You know, whether the search in this case would be considered reasonable is a different question. And unfortunately, we will never know because the case was determined on its fact to be moved to the Supreme Court concluded that they were not going to send this back, because the reprimand on these two teachers record had been erased by the time the case got to the Supreme Court.

So we'll never know whether it was reasonable. But I'm going to talk to you a little bit, first of all, about why I think conceptually it makes sense for the section 8 analysis to change when you're not dealing with a liberty interest. And secondly, give you my thoughts on the reasonableness of this particular search. So yeah, the Court in this case identified three main factors that they had that the Court concluded made the context different in a school board employment context as opposed to a criminal context.

So one is, you know, there's no liberty interest at stake. No one's going to jail. No one's getting a criminal record. This is about labour relations. And not only labour relations, but also making the school environment conducive to learning. Because one of the issues that was found on the facts was that a labour arbitrator found that the school was a toxic environment and that this was not beneficial to the children who were there to be taught.

And so there’s a greater interest to be considered than just the union versus management issue. So anyway, liberty interests are not at stake in the school board context. Number two, school boards have a statutory mandate to protect students, to create a good learning environment, to maintain order, etc. And so that's a statutory context that is relevant to consider.

And the third is that just operationally searches in a school can't work the same way as searches in a criminal context. You know, in the criminal context, unless you have exigent circumstances, you generally can't plan an advanced search without getting judicial authorization, without getting a warrant. But that doesn't really work operationally in a school. You know, certainly if you're dealing with, you know, a student who is believed to have a gun or contraband or things like that, you know, you can't, practically speaking, go get a warrant.

But there is a question, of course, whether, practically speaking, it was appropriate to do the search in this case. But if you condense these three factors into a single theme, the Supreme Court basically said that the balancing of interests, the interests are different and the balancing of interests is therefore different. I said I was going to talk about the search in this case, but I'm conscious of our time, so maybe I should turn it back to you, Andrew, to just say— I'll leave it by saying I personally don't think I would have weighed the factors in favour of finding this to be a permissible search in this case, but I'll leave our audience hanging as to why.

Andrew Bernstein (12:47): Okay, interesting. Well, I'm going to ask after the show! Jeremy, so you get the last word here that David has kindly yielded to you. There is a whole hullabaloo in this case about the arbitrators power to deal with the Charter, how the arbitrator should deal with the Charter. We've talked a lot about it. It strikes me, for better or worse, we have a framework about how administrative actors are supposed to apply the Charter and it’s Doré.

And, you know, for a hot minute, we thought maybe Doré was disappearing. And then the Supreme Court reaffirmed it in the commission's “just apply Doré here”. And shouldn't it have applied Doré here?

Jeremy Opolsky (13:23): So Andrew, I've read it like five times and I still don't understand the decision here. So I'm going to pass on this question.

Andrew Bernstein (13:29): Okay, great. Well that’s it! [laughter]

Jeremy Opolsky (13:29): I'm just kidding. I never pass up an opportunity to explain something I don't understand. [laughter] So, honestly correctness review after Vavilov, it applies here, says Justice Rowe, because Vavilov requires the review of a delineation of the scope of constitutional guarantees on a correctness standard. So whether a right applies, its scope in the framework of analysis, the majority says, are all subject to correctness review.

But I think this runs right into Doré, which says that when an administrative tribunal, like a labour arbitrator, considers the constitutionality of a decision, then it's reasonableness and there's deference involved. What's confusing here is that this decision doesn't try to delineate or reconcile those two lines of authority. It doesn't cite Doré, and it certainly doesn't address the decision commission scolaire, which came right before, which had a very strong defense of the Doré deferential standard and require reasonableness review for Charter values.

And therefore, one would presume Charter rights. The dissent disagrees here and says this is all about the application of section 8. And the application of a Charter right requires a reasonableness standard and deference. The rule of law is not involved here because variations, they say between individual decision makers, but the application of the Charter are acceptable between them.

So Professor Paul Daly, who is robustly cited throughout this decision, and a former guest of this webinar and—

Andrew Bernstein (14:57): A very special friend of Breakfast With Appeal.

Jeremy Opolsky (14:59): That's right, and maybe in attendance, he says that basically this case does nothing. He says it points to the distinction between the scope of a right, whether a right applies and its application. So the scope can be correctness, but its application can be reasonableness. And he doesn't think this changes anything on Doré. We will see, and he may very well be right, but it would have been nice for the majority to just like give us a few extra paragraphs on why they weren't just ignoring a decade now of their own case law.

Andrew Bernstein (15:29): I mean, it's like, thank goodness of Professor Daly who can actually explain the Supreme Court's of Canada’s decisions in a way that the Supreme Court of Canada can't really do.

Jeremy Opolsky (15:38): That's right. Thank God for his blog. [laughter]

Andrew Bernstein (15:39): Yeah, exactly. So that's it for Breakfast With Appeal for this quarter. We'll be back late in the year for all of you who are still needing CPD in December. Don't know what the cases are going to be yet. No doubt there will be some mix of public law and private law as there always is.

So again, happy birthday to David. Happy anniversary to Jeremy. Sorry Yael, nothing to celebrate particularly, but on behalf of everyone, I'm Andrew Bernstein and thanks for watching. See you next time.

David Outerbridge (16:10): See you everyone.

Yael Bienenstock (16:11): Bye.

Jeremy Opolsky (16:11): Bye everybody.

Andrew Bernstein (16:14): That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of breakfast With appeal, along with previous episodes on torys.com, and that our BWA program is eligible for one substantive hour of continuing professional development. Thanks again for joining us and take care.