Protection Against Unreasonable Searches in the Workplace and Technological Tools
Me Robert E. Boyd, CRIA
Labour and Employment Practice Group, Cain Lamarre
Summary
The author addresses a recent judgment by the Supreme Court of Canada (York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22[1]) that concerns the protection of privacy at work when employers access their employees’ computers during an investigation. How do you balance a reasonable expectation of privacy with the managerial requirements of employers?
The issues involved in protecting employees’ right to privacy in the context of an employment relationship are covered by a considerable body of arbitral decisions. Due to the omnipresence of smart devices, computers and other technological tools that are often used for both professional and personal purposes, an assessment needs to be carried out frequently to ensure that an employer's right to monitor work and take disciplinary action is balanced with an employee's right to privacy.
The Supreme Court of Canada recently addressed the case of a school principal who had reprimanded two teachers after intercepting a log of conversations between them stored in a cloud. The Supreme Court concluded that the Canadian Charter of Rights and Freedoms[2] (hereinafter “Charter”) protects the teaching personnel of Ontario’s school boards against unreasonable searches or seizures in their workplace. The Supreme Court took this opportunity to review the principles of an employee’s reasonable expectation of privacy in the workplace, an expectation that may be higher or lower depending on the circumstances. Although this Supreme Court judgment addresses the context of an Ontario school board, it has relevant lessons for all employers on protecting privacy in the workplace.
Background
Two teachers employed by an Ontario public school board recorded their workplace concerns on a shared personal, password-protected log stored in the cloud that was not connected in any way to the board (Google docs). The log was not stored in the school board’s systems. When the school principal was made aware of the log, he entered the classroom of one of the teachers to return some teaching materials to her after classes had ended. The teacher was not present. The school principal saw that the school board’s laptop computer used by the teacher was open and touched its mousepad. A log opened on the screen. He read what was visible on the screen, scrolled through the rest of the document, and took screenshots of the content with his cellphone. These communications formed the basis for the school board to issue written reprimands to the teachers.[3]
The teachers' union grieved these reprimands, claiming that the search had violated the teachers’ right to privacy without reasonable cause.[4] The union did not specifically allege that section 8 of the Charter, which prohibits unreasonable searches, had been violated. The labour arbitrator dismissed the grievance. When balancing the school board’s interest in managing the workplace with the teachers’ reasonable expectation of privacy, the arbitrator found that there was no breach of their reasonable expectation.[5] The teachers had a lower expectation of privacy, and in this context, the employer was justified in investigating and collecting information to deal with the problem of the toxic work environment created by the teachers.
On judicial review, the Ontario Divisional Court upheld the reasonableness of the arbitrator’s decision. The judicial review dealt only with the arbitrator’s conclusion, which found that the school board’s actions had not violated the teachers’ privacy. The Court held that no Charter issues arose from the search because "unlike in a criminal context, in a workplace environment, an employee does not have a section 8 right to be secure against unreasonable search and seizure.”[6] The appropriate framework for analysis was not section 8 of the Charter, but rather the rights of the employers and employees as set out in the collective agreement.[7]
The Ontario Court of Appeal found that the Divisional Court had erred in finding that section 8 of the Charter did not apply in this matter. Thus, the Court of Appeal unanimously allowed the union’s appeal and quashed the arbitrator’s decision, holding that school boards are subject to the Charter.[8] The teachers were secure against unreasonable searches, and the arbitrator had therefore erred in failing to analyze the grievance through the lens of this protection enshrined in the Charter.
Supreme Court judgment
The heart of the debate brought before the Supreme Court concerned the question of whether public school boards in Ontario are governmental in nature and, by extension, if the Charter applies to them because they perform governmental actions. If this was the case, the arbitrator had erred in her analysis by failing to consider the protection granted to the teachers under section 8 of the Charter, which provides that "everyone has the right to be secure against unreasonable search or seizure.”
When writing the reasons for the majority, Judge Rowe rejected the appeal, finding that Ontario public school board teachers are protected by section 8 of the Charter in their workplace environment. These boards are properly characterized as government, in accordance with section 32 of the Charter.[9] However, the Supreme Court was careful to specify that its determination applies to Ontario school boards. Judge Rowe wrote, “I leave for another day the question of the applicability of the Charter to public schools in other provinces, or to the operation of private schools.”[10]
Although the Supreme Court recognizes that the protection granted by section 8 of the Charter against unreasonable searches applies beyond the criminal context, it nevertheless specifies that courts must be cautious in adapting the framework of analysis to the world of work.[11] To determine whether a search is unreasonable in a criminal law context, due consideration must be given to exigency factors and law enforcement objectives. In an employment context, the employer’s operational realities, policies and procedures can be relevant in determining the reasonableness of an employee’s expectation of privacy. What may be considered a reasonable search in a criminal context may “look different in a labour relations context where the consequence, albeit serious, does not threaten liberty.”[12]
The analysis based on section 8 consists of two steps, which are: 1) determine whether a reasonable expectation of privacy exists and 2) determine whether the search or seizure is reasonable.
To determine whether employees have a reasonable expectation of privacy, the Supreme Court draws on its teachings in the judgment on R. v. Cole,[13] where the reasonable expectation of privacy varies based on all of the circumstances of employment, which specifically includes an inquiry into the practices and policies that the employer has in effect. These are the passages of the Cole judgment to which the Supreme Court refers:
[52] The context in which personal information is placed on an employer-owned computer is nonetheless significant. The policies, practices, and customs of the workplace are relevant to the extent that they concern the use of computers by employees. These “operational realities” may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information.
[53] Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.
Once a reasonable expectation of privacy is established in the workplace, it must then be determined whether the search was unreasonable. To that end, the Supreme Court states that arbitrators may continue to apply the “balancing of interests” framework based on the body of arbitral decisions by balancing the protection of employees’ privacy with the employer's managerial interests such that the employer is able to regulate labour relations and ensure the proper conduct of its operations.
Takeaways
The Supreme Court found that the arbitrator erred by failing to consider that section 8 of the Charter provides protection against unreasonable searches and that this protection applied to Ontario school boards, even in the context of an employment relationship with the teachers."[14]
Although this matter involved a school board in Ontario, it serves as a reminder to all employers that it is important to properly assess employees’ reasonable expectation of privacy whenever employers perform monitoring or carry out an investigation in the workplace.
In this matter, several circumstances were liable to create a high expectation of privacy in the teachers:
- The school principal had inadvertently gained access to private conversations saved in a log that was still open after the teacher had left her work station;
- The log was password-protected;
- The log was stored in a private cloud computing platform without any connection to the board (Google docs).
- The log was not stored in the school board’s systems.
Employers are well advised to adopt a clear policy on the use of technological tools in the workplace so that they have a framework in place to guide their employees’ expectations of privacy as much as possible. This policy should specifically answer the following questions:
- Can employees use the employer’s technological tools for personal reasons and, if so, to what extent?
- Can employees save personal documents in the employer’s technological tools or computer networks?
- In which circumstances can the employer monitor employee activities in the employer’s technological tools or computer networks?
We should also mention that creating policies to lower the reasonable expectation of privacy does not satisfy the requirements, as a general rule. Employers need to make sure that their practices are consistent with the policies in force. In this regard, employees and managers may need to receive appropriate training to ensure that they are truly familiar with the policies and understand them. Employers will also need to establish a no-tolerance approach to violations of their policies and encourage managers to take quick action in enforcing them.
In closing, as the Supreme Court reminds us, privacy-related issues in employment contexts will need to be further analyzed by taking into account all of the circumstances specific to each case. Clear policies and practices on information technology use will help lower the risks for employers whenever they have to conduct an investigation or take disciplinary action.
Me Robert E. Boyd, CRIA
Robert E. Boyd leads the Labour and Employment Practice Group at Cain Lamarre. He advises and assists employers in all areas of labour and employment law. As a lawyer and Chartered Professional in Industrial Relations, he takes a pragmatic approach to labour relations, seeking concrete solutions to complex issues to avoid litigation wherever possible.
Source: Vigie RT, Ordre des conseillers en ressources humaines agréés du Québec, octobre 2024.
[1] York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22.
[2] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[3] Supra note 1, par. 6–14.
[4] Ibid, par. 15.
[5] Ibid, par. 18–22.
[6] Supra note 1, par. 38.
[7] Ibid, par. 39.
[8] Ibid, par. 49–52.
[9] Ibid, par. 68–69.
[10] Ibid, par. 84. It should be mentioned that in Quebec, section 24.1 of the Charter of Human Rights and Freedoms also provides protection against unreasonable searches: “No one may be subjected to unreasonable search or seizure."
[11] Ibid, par. 98.
[12] Ibid, par. 105.
[13] R. v. Cole, [2012] 3 S.C.R. 34.
[14] It should be remembered that section 8 applies to the government bodies contemplated in section 32 of the Charter: 32 (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
