Ontario court rules on teachers’ digital communications being intercepted by principal
Court of Appeal rules public school teachers are protected from unreasonable search and seizure in the workplace
The Lawyers Daily spoke to Howard Goldblatt about a recent Ontario Court of Appeal decision involving public school teachers’ Charter rights against unreasonable search and seizure.
The case involved two teachers who, at their union’s suggestion, kept log notes involving another teacher who they felt was not an effective member of their teaching group. The log was saved in the Cloud, not on school board computers or hard drives. Other teachers found out about the log and complained to the principal. One day, after teachers had left the school, the principal found an open computer in one of their classrooms, moved the mouse, and the screen opened up the log. The principal took photos of the log with his cell phone. The school board later told the principal to seize the teachers’ computers and they were subsequently disciplined for using school board technology for the log.
The teachers grieved. An arbitrator dismissed the grievances, holding that the teachers had a diminished expectation of privacy since one of them had left the log open on her classroom computer, and that the principal had conducted the search in a reasonable manner. The Divisional Court upheld the arbitrator’s decision.
However, the Court of Appeal granted the teachers’ appeal and quashed the arbitrator’s decision. It held that the “principal’s actions in reading the log, taking screenshots of it, and sending it to the Board violated the grievors’ reasonable expectation of privacy and constituted an unreasonable search under s. 8” of the Canadian Charter of Rights and Freedoms.
Howard Goldblatt and Daniel Sheppard argued the appeal. Howard spoke to the Lawyers Daily:
Toronto lawyer Howard Goldblatt, who acted for the Elementary Teachers Federation of Ontario, which appeared on behalf of the two appellant teachers, said the Appeal Court “makes it clear that individual teachers have a reasonable expectation of privacy in respect to the kinds of communications … they had engaged in.”
“The significance is this protection is affirmed by the court, and the distinction between the ability of the principal to do a search vis-à-vis students as opposed to teachers in an employment relationship is clearly distinguished,” said Goldblatt, of Goldblatt Partners.
“What this court has done is emphasize that … there are these protections in place, and that they are fundamental protections because they rise under the Charter, and that public sector employees –— and teachers in particular — are able to engage in the kinds of communications with the reasonable expectation that their privacy will be respected and protected.”
Goldblatt was asked if the Appeal Court’s ruling could also impact workplace privacy in the private sector.
“Well, I think it’s obviously going to have an impact on everybody — it’s an important decision. It remains to be seen whether the school board will seek leave to have it heard by the [Supreme Court of Canada]. We didn’t even turn our minds to the private sector.”
Goldblatt referred to this as uncharted territory.
“These kinds of communication privacy rights, we’re dealing with kind of a new era here, where individuals are communicating by e-mail and by text and by various other electronic means, and often using the hardware — the computers — of the employer. However, just because it is their hardware does not mean the employer has the right to interfere with or get access to those private communications. How it plays out in the private sector remains to be seen, but certainly we can see how it would play out in the public sector.”