Teachers' Right To Privacy: A Decision Of Interest Is Expected From The Supreme Court Of Canada

• Law Firm: Langlois Lawyers, LLP
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Author: Mr Eliab Taïrou and Aude Berger
• Published date: 22 August 2023

On June 21, 2022, the Court of Appeal for Ontario rendered a decision¹ concerning the extent of employees' reasonable expectation of privacy in the workplace. The Court of Appeal decided inter alia that the protection against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms (the "Charter") applies to employees of a public education institution. The Court also found that employees could have a reasonable expectation of privacy in respect of a communication that did not contain personal or intimate information directly concerning them, but information concerning their opinion of others.

In March of this year, the Supreme Court of Canada granted leave to appeal this decision.² The forthcoming judgment will definitely have an effect on how much leeway employers have to access their employees' communications in connection with a workplace investigation.

The facts

On the recommendation of their union, two Ontario public school teachers decided to document their observations and concerns about a problematic situation at work on a digital log. Essentially, in their view, one of the other teachers was not an effective member of the group and was receiving preferential treatment from the school principal. It should be noted that the teachers took certain measures to safeguard the confidentiality of the log, including protecting it with a password and storing it in the Cloud. The school principal had been made aware by some staff members of the existence of the log and the toxic work climate it was creating.

Subsequently, the principal chanced upon the log, which was open on the computer of one of the teachers. The principal, who at that time was in a classroom, had noticed that the teacher's computer was still on, even though classes had ended and the teacher had left the room. He then read and took screenshots of the entire log. Informed of this situation by the principal, the York Region District School Board (the "Board") instructed him to confiscate and search the computers of the two teachers.

Following this search, the Board disciplined the two teachers and placed written reprimands on their files for three years. In the Board's view, they had committed a fault by using computers provided by the school to maintain, during work hours, a log with more than one hundred entries concerning the principal and another teacher.

The union filed a grievance on behalf of the two teachers to challenge the reprimands and seek...