Facts:
Two Ontario public school teachers recorded their private communications about the workplace on a shared, personal, password-protected log that was stored in the cloud. The school’s principal was told about the log. In the absence the teachers, he touched the mousepad of one of the teacher’s board laptop, observed the log on the screen, read what was visible, scrolled through the document, and took screenshots with his cell phone. The principal’s observations formed the basis for written reprimands against the teachers.
The union grieved the discipline, claiming the search violated the teachers’ right to privacy at work, without alleging any Charter breach. An arbitrator found there was no breach of privacy and dismissed the grievance.
On judicial review, a majority of the Divisional Court upheld the arbitrator’s decision as reasonable. The Court of Appeal unanimously allowed the union’s appeal and quashed the arbitrator’s decision, concluding that the search was unreasonable under s. 8 of the Charter.
Decision
(per Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ; Karakatsanis and Martin JJ, concurring): appeal allowed.
School boards are inherently governmental for the purposes of s. 32 of the Charter. Thus, Ontario public school teachers enjoy the protections of s. 8 of the Charter in the workplace.
Administrative tribunals with the power to decide questions of law have the authority to resolve constitutional questions linked to matters properly before them, unless that jurisdiction has been clearly withdrawn. They must act consistently with the Charter and its values when exercising this function. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction. Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provisions.
Correctness review applies to the question of whether the Charter applies to school boards under s. 32 of the Charter. Correctness review also applies to review the arbitrator’s decision. The issue of constitutionality on judicial review — whether a Charter right arises, the scope of its protection, and the appropriate framework for analysis — is a “constitutional question” that requires a “final and determinate answer from the courts”, within the meaning of Vavilov. Constitutional questions are not limited to only issues of federalism and the constitutional delegation of state power to administrative decision-makers.
A right to a reasonable expectation of privacy under s. 8 of the Charter is distinct in source and nature from an arbitral right to privacy. The arbitrator’s reasons disclosed a fundamental error because she had the wrong right in mind, and failed to apply the Charter. This error in law is fatal to her decision. Courts cannot supplant the reasons proffered by the decision-maker and read the reasons as if it applied a Charter right when it in fact applied a different right. There is no need to send the matter back for redetermination, as the matter of the teachers’ reprimand is now moot.
For the concurring judges, the appropriate standard of review for the arbitrator’s decision is reasonableness—not correctness. Individualized decisions involving the application of the Charter that are intrinsically linked to a specific factual and statutory context will generally not engage rule of law concerns that motivated the correctness exception for constitutional questions in Vavilov. Courts do not possess a monopoly over the adjudication of Charter-related issues in the administrative context.
The minority conclude the arbitrator’s decision is unreasonable, but not because she failed to expressly state that s. 8 applied. The majority’s approach on this issue seizes on form, rather than assessing the arbitrator’s decision functionally, with an eye to substance. The reasons demonstrate the arbitrator appreciated the s. 8 privacy framework constrained her decision, and was reviewing the challenged conduct using that framework as a touchstone.
Commentary:
For our readers, the most noteworthy aspect of this decision is the majority’s holding that correctness review applies to questions around the engagement, scope and framework for Charter rights before decision-makers empowered to consider such questions.
While this statement may be clear enough conceptually, there is an important—and, in many cases, murky—practical distinction to be drawn between this category of “correctness” questions and questions relating to the application or proportionate balancing of Charter rights and values where they are engaged. The latter category is subject to reasonableness review, as the Court recently unanimously affirmed in the CSFTNO decision.1
Reading York Region District School Board together with Société des casinos du Québec inc (reviewed elsewhere in this Issue) arguably provides even further room for the scope of correctness review. In Société, the Supreme Court held that correctness ought to apply to findings of mixed fact and law “made in connection with a constitutional question”. Thus, to the extent there are findings of mixed fact and law connected with the existence or scope of a Charter right, or appropriate framework for analyzing that right, correctness review would apply.
It is perplexing, and somewhat frustrating, that the majority’s reasons do not even mention CSFTNO, let alone grapple with how to draw the line between the modes of review established in that case, Société and York Region District School Board. For their part, the minority at least advert to the issue, and in so doing reinforce the often nebulous divide between pure identification of Charter rights and their application in a particular factual and statutory context. At least conceptually, however, reading CSFTNO, Société and York Region District School Board side-by-side suggests that administrative decision-makers must both (i) correctly identify whether a Charter right is engaged and, if so, how it ought to be assessed (including any questions of mixed fact and law pertaining to these issues); and (ii) conduct a reasonable and proportionate balancing of that right, in accordance with the Doré framework.
The majority’s application of correctness review reflects scant appreciation for the way the case was framed and argued at first instance. Indeed, the matter was never even framed as a s. 8 breach before the arbitrator. In a sense, this is the natural consequence of applying the stringent standard of correctness review to the underlying questions relating to the identification and engagement of Charter rights. Decision-makers would thus be well advised to carefully assess whether a Charter right is engaged, even if the issue is not expressly framed in those terms by the parties before them.
- Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. This case was reviewed in Issue No. 38. ↩︎