The case of two teachers who were disciplined after their principal took screenshots of their private comments about a colleague has forced the Supreme Court of Canada to consider if teachers have a constitutional right to privacy at school.
The country’s highest court heard arguments on Wednesday about whether school boards act on behalf of the government — and if so, whether teachers have a constitutional right to be free from unreasonable search and seizure at work.
“School boards are fundamental to this country and school boards deserve Charter protection across the country,” said Howard Goldblatt, lawyer for the Elementary Teachers’ Federation of Ontario, a teachers’ union.
The constitution gives provinces the responsibility for education. Everything they do “must be viewed as being under the scope of the Charter,” he said.
Section 8 of the Charter protects Canadians from “unreasonable search or seizure.” The union says that because the Charter should apply to schools, teachers should be protected from “unreasonable search and seizure” while at work.
The plaintiff in the case, York Region District School Board, disagrees.
The board is appealing a 2022 Ontario Court of Appeal decision, which found the board had violated the privacy of two teachers, Elena Shen and Manreet Rai.
In 2015, Shen and Rai were disciplined after their principal took screenshots of a log the two kept on their personal Google drives that documented their concerns with a colleague’s job performance. The principal had come across the log when he had gone to turn off Shen’s school laptop.
The Supreme Court has already ruled that the Charter applies to colleges, universities and hospitals. But it hasn’t done that for school boards, the board’s court filings say.
‘Not the Wild West’
The arbitrator made the right decision in dismissing Shen and Rai’s grievance, board lawyer Frank Cesario told a panel of seven Supreme Court justices.
The arbitrator wasn’t asked about Charter rights, said Cesario. The case “should not have been allowed to morph” into a case about Charter rights, he said.
The principal was just trying to maintain order. His actions were no different than a general manager at a warehouse or mine, Cesario told the court.
“Ontario workplaces to which the Charter does not apply are not the Wild West, law-free or even privacy-free zones,” he said. “Labour arbitrators are experts in this realm.”
But some of the court’s judges said it’s obvious school boards act on behalf of the government so the Charter applies to them.
It was “inevitable” that this case would involve Charter rights, said Justice Malcolm Rowe. The arbitrator should have considered the Charter rights, he said. “You can’t create a Charter-free zone,” he told Cesario.
‘Not only a workplace’
In British Columbia, courts have said for nearly 20 years that the Charter applies to school boards, argued Robyn Trask, lawyer for the BC Teachers’ Federation, one of 16 interveners in the case.
The federal government and Ontario and Quebec governments have sided with the school board, saying that the arbitrator made the right decision.
The Ontario College of Teachers said teachers have a diminished right to expect that their communications at school will be kept private.
“This is not only a workplace,” Caroline Zayid, the lawyer for the college, said. “This is first and foremost a learning environment.”
This lack of privacy helps protect students, she said. If a teacher is doing something that is hurting students, the school must take action. “We must recognize sometimes that the threat to students and their learning environment can come from teachers.”
But protecting teachers’ privacy is what keeps students safe, argued interveners who sided with the union.
“Meaningful consideration needs to be given to the needs and experiences of students,” said Brendan MacArthur-Stevens, lawyer for Egale Canada, an LGBTQ+ advocacy organization.
Often students share personal details, including their sexuality and gender identity, with teachers. If teachers don’t have a right to privacy, he said, marginalized students could be at particular risk.
There could be a “chilling effect” on teachers if their Charter rights aren’t protected, Mae Nam, a lawyer for the intervener Centre for Free Expression, said in an interview. Teachers may be scared to voice their opinions if the Charter doesn’t protect their freedom of expression at work, she said.
The court did not give a decision on Wednesday. It has not said when its decision will be released.
