CITATION: Elementary Teachers Federation of Ontario v. York Region District School Board, 2020 ONSC 3685

DIVISIONAL COURT FILE NO.: DC-660-18

DATE: 2020/06/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs, O’Bonsawin JJ.

BETWEEN:

Elementary Teachers Federation of Ontario

Applicant

– and –

York Region District School Board

Respondent

Howard Goldblatt, for the Applicant

Michael A. Hines, for the Respondent

HEARD at Toronto: November 27, 2019

O’Bonsawin J.

Introduction

[1] The Applicant, Elementary Teachers of Ontario (“ETFO”) brings an Application for judicial review of Arbitrator Misra’s (“Arbitrator”) decision dated August 7, 2018, York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2018 73669 (ON LA) (G. Misra) (the “Decision”). The Arbitrator decided that the Principal’s search of a log about events in the workplace that was created and stored by the Grievors in their private Gmail accounts that they accessed on the Board’s computer did not breach the Grievors’ reasonable expectation of privacy. The issue focuses on balancing the reasonable expectation of privacy of employees with the duty of the employer to manage the workplace. For the reasons that follow, the Application is dismissed.

Background

[2] In the 2014-2015 school year, Ms. Rai and Ms. Shen (the “Grievors”) were newly hired contract teachers at Mount Joy Public School. They were part of a four-teacher team assigned to teach Grade 2. Mr. JH, another newly hired contract teacher, and Ms. P-M were also members of this team. In addition, Ms. HH, another teacher at the school, acted as a mentor to Ms. Rai. Mr. Pettigrew was the Principal.

[3] By the second week of September, the good-will amongst the four teachers began to break down. The Grievors were of the view that Mr. JH was not contributing sufficiently to the Grade 2 team and had other shortcomings. In addition, they thought that Mr. Pettigrew favoured Mr. JH. The Grievors did not tell Mr. Pettigrew at that time.

[4] At the end of September, Ms. Shen contacted the ETFO Vice-President for advice. She did not identify herself. She said she was told to keep notes, including notes about conversations or observations related to her concerns.

[5] As a result, Ms. Shen used the Board’s laptop computer and the Board’s internet to access her private Gmail account and she created a log that she shared with Ms. Rai through Ms. Rai’s private Gmail account. The log included a record of events made by either of the Grievors that occurred between September 12 and December 16, 2014.

[6] Mr. Pettigrew first heard that there were issues in the Grade 2 teaching team from Ms. HH around Thanksgiving 2014. She told Mr. Pettigrew that the team was not working as well as the Principal thought, and that they may not be communicating well, which was leading to some uncomfortable situations. (at paragraph 64).

[7] In the middle of October 2014, Ms. HH raised with Mr. Pettigrew that she had heard from Ms. Shen that he was showing favouritism to Mr. JH. Mr. Pettigrew explained his oversight of Mr. JH’s teaching on two occasions. Ms. HH apologized to Mr. Pettigrew and said she thought she had been set up by Ms. Shen. (at paragraph 66)

[8] By October 2014, Ms. P-M had formed the view that the group not was working well as a team, so when Mr. Pettigrew asked her how the team was doing, she indicated that it was “not doing as well as you think it is” but did not tell him about any particular concerns. (at paragraphs 19-20)

[9] On October 28, 2014, Ms. Shen told Mr. Pettigrew that the team was not working as she had envisioned. She felt underappreciated and identified issues she had with Mr. JH. (at paragraph 67)

[10] In early November 2014, Ms. Rai told Mr. Pettigrew that she felt undervalued by the team; that the team was not working as she had envisioned it would; and that Mr. JH was not sharing things. (at paragraph 69)

[11] In mid to late November 2014, Mr. JH called ETFO and sought assistance because the Grievors were bullying him. He was advised that ETFO could not assist him. He did not tell Mr. Pettigrew about the call. (at paragraph 57)

[12] On November 26, 2014, Ms. Rai told Mr. Pettigrew that she was uncomfortable with Mr. JH’s behaviour the day before. She said he had “blown up” at her during team prep time. She said that she no longer wanted to work with him. Ms. Rai told Mr. Pettigrew that Ms. P-M could verify what had occurred with Mr. JH. Mr. Pettigrew then spoke to Ms. P-M about the incident. She indicated that “nothing of the sort had happened”. (at paragraph 72)

[13] On November 27, 2014, Ms. Shen read to Ms. P-M the entry from the log that reflected Ms. Rai’s version of the events on November 26. It upset Ms. P-M and she told Ms. Shen that she did not say the words ascribed to her, that what she was doing was highly unprofessional, and that she did not want to be a part of it. Ms. P-M told Mr. Pettigrew that the Grievors were keeping a log on the school laptop and that Ms. Shen had read her something attributed to her that she said was “categorically false”. (at paragraph 73)

[14] On December 3, 2014, Ms. P-M told Mr. Pettigrew and the Vice-Principal that she could not take it anymore and no longer wanted to work with the other Grade 2 teachers. She also told them about the log. In addition, Ms. P-M described several conversations she had had with the Grievors, and particularly Ms. Shen, in which the Grievors openly criticized Mr. JH and called into question Mr. Pettigrew’s competency. She said that she felt threatened by Ms. Shen who wanted to know what she had been discussing with Mr. Pettigrew the previous week and Ms. Shen said that Ms. P-M “better not have done anything to jeopardize Ms. Shen’s evaluation”. On December 4, 2014, Ms. P-M took a personal illness day due to the stressful situation caused by the Grievors. (at paragraphs 74-76)

[15] After his discussion with Ms. P-M, Mr. Pettigrew spoke to Mr. Wu, the Superintendent, about the Grievors keeping a log on the school computer. Mr. Wu told him to speak to Human Resources. (at paragraph 77)

[16] In December 2014, Ms. HH was feeling anxious in relation to her mentoring relationship with Ms. Rai. In addition to speaking during school hours, the latter was also calling and texting Ms. HH after hours to discuss “negative talk”. Ms. HH shared some of this information with Mr. Pettigrew. Ms. HH took sick leave on December 9 and returned for the last day of school for that term. (at paragraph 39)

[17] On December 9, 2014, Ms. AM, an office assistant at the school, advised Mr. Pettigrew and the Vice-Principal that she overheard the Grievors talking about putting information about Mr. JH into the log. Ms. AM also described Ms. Shen rolling her eyes behind Mr. JH’s back and mimicking him. (at paragraph 78)

[18] On or about December 10, 2014, Ms. McCarthy, Manager of Employee Relations, advised Mr. Pettigrew that the Board could work with IT Services to review the school’s Google drives. On December 15, 2014, Ms. McCarthy told Mr. Pettigrew that IT Services had searched the Board’s Google drive and other drives and did not locate any document shared between the Grievors. (at paragraph 80)

[19] At the end of the school day on December 16, 2014, Mr. Pettigrew had to return a manual for the Lego robotics kit which was normally housed in Ms. Shen’s classroom. He went into her classroom between 3:30-4:00 p.m. knowing that Ms. Shen had left for the day. Ms. Shen’s laptop password was on a sticky paper that was stuck to the laptop. The class laptop’s screen was black but when Mr. Pettigrew touched the mouse to see if it had been shutdown, the screen opened to a document called “Log Google Docs”. Mr. Pettigrew initially read through what was visible on the screen and then scrolled through the document. Since he had been told of the existence of the log and that the Board IT Services had been unable to locate the log on the Board’s system, Mr. Pettigrew used his cellular telephone to take photographs of the log in order to gather evidence. He returned to his office and contacted Ms. McCarthy who advised him to contact Mr. Wu. (at paragraphs 81-82)

[20] Mr. Pettigrew immediately sent Mr. Wu an email indicating what had occurred regarding finding the Grievors’ log and he noted there was “much nastiness all the way through it”. Mr. Wu responded that evening saying that he would attend the school the next day. On the advice of Mr. Wu, Mr. Pettigrew called the school and asked the caretaker on duty to retrieve the laptop from Ms. Shen’s classroom and lock it inside of his office. Mr. Pettigrew read the entire log on his cellular telephone with the first entry dated September 12, 2014. Mr. Pettigrew downloaded the photographs from his cellular phone, printed the pages, and forwarded them to Ms. McCarthy for the investigation. (at paragraph 84)

[21] By December 16, 2014, Mr. Pettigrew had heard complaints from Ms. Shen and Ms. Rai about Mr. JH and he had heard complaints about Ms. Shen and/or Ms. Rai from Ms. AM, Ms. HH, and Ms. P-M including information that the Grievors were keeping a log on the school laptop.

[22] As the Arbitrator indicated in paragraph 15 of the Decision, most pertinent was the evidence about what Mr. Pettigrew knew at the time of the search of the laptop computer on December 16, 2014. What follows are further findings made by the Arbitrator as to events immediately thereafter.

[23] On December 17, 2014, Mr. Wu, Mr. Pettigrew, and the Vice-Principal removed the classroom laptop from Ms. Rai’s classroom.

[24] Mr. LB, another teacher, sent an email to Ms. Shen on December 18, 2014, advising that he had been feeling stressed and uncomfortable lately and things were too negative for him. On December 19, 2014, Mr. LB told Mr. Pettigrew that he was upset with Ms. Shen and Ms. Rai and he sent to the school administration an Adverse Report regarding the Grievors’ inappropriate behaviour and the toxic work environment. (An Adverse Report is a mechanism by which one teacher raises issues/complaints about another teacher.) Mr. LB also advised Ms. Shen of his actions. (at paragraphs 96-97)

[25] On December 18, 2014, Ms. HH called ETFO for advice. She also spoke to Mr. Pettigrew again. She told him she was exasperated with the constant negative commentary she was getting in her discussions with Ms. Rai, her mentee, and felt that she was being abused and manipulated by Ms. Rai and Ms. Shen. She said she felt that the Grievors were “poisoning the culture of the school”. She also said that she had heard from another teacher, Ms. LL, that the Grievors were keeping an online log. She told Mr. Pettigrew and the Vice-Principal that she could no longer continue to act as Ms. Rai’s mentor. She gave examples of how the Grievors criticized their colleagues and the administration. On January 23, 2015, Ms. HH sent an email to Ms. Rai advising her that she could no longer act as her mentor. Furthermore, Ms. HH sent an Adverse Report regarding Ms. Rai to Mr. Pettigrew and the Vice-Principal. (at paragraph 40)

[26] By late December 2014, Mr. Pettigrew had heard complaints from Ms. Shen and Ms. Rai about Mr. JH and he had heard complaints about Ms. Shen and/or Ms. Rai from Ms. AM, Ms. HH, Ms. P-M, and Mr. LB (including that the work environment was “toxic”).

[27] In early January 2015, the Board began its investigation into allegations of the Grievors’ practices in relation to the Professional Standards set by the Ontario College of Teachers and the expectations outlined in Board Policies and Procedures and school procedures, and more specifically, the allegations of the Grievors’ inappropriate use of technology.

[28] On January 23, 2015, the Board issued individual letters of discipline (Reprimand Letters) to Ms. Shen and Ms. Rai informing them that their conduct did not meet the expectations of the Board and that they failed to conduct themselves in a manner that meets the accepted standards of practice as outlined in the Ontario College of Teachers’ Standards of Practice. The letter confirmed that the Grievors had accessed and maintained a log on a Board computer, during Board time and using Board technology that included approximately 100 entries related to the actions of the Principal and “the teacher”, namely Mr. JH.

[29] The Board confirmed that the Record of Written Reprimand would be placed on their files for a minimum of three years.

[30] ETFO grieved the Written Reprimands and sought to have them rescinded and asked that the Grievors receive a letter of apology. In addition, ETFO sought payment of $15,000 in damages for each of the Grievors in relation to the breach of their privacy rights.

[31] The hearing before the Arbitrator took place over 11 days, from September 16, 2016, to June 5, 2018. Due to the duration of the hearings, the sunset clause in the collective agreement applied, and the Written Reprimands were removed from the Grievors’ employment record on January 22, 2018. As indicated in paragraph 3 of the Decision, in respect of the request to rescind the Written Remand, the grievance was moot.

[32] As indicated in paragraph 4 of the Decision, ETFO and the Board agreed to continue the hearing on ETFO’s claim that the Board violated the Grievors’ right to privacy by accessing private digital information without reasonable cause, and by using that information as the basis for an investigation that led to discipline.

[33] As a result of that agreement, the Arbitrator’s focus in her fact finding was specifically related to what knowledge the Board had at the time it conducted its searches of the classroom laptops and what those searches entailed.

Decision of the Arbitrator

[34] In the Decision dated August 7, 2018, dismissing the grievance, the Arbitrator found that the Board had not breached the reasonable expectations of the Grievors’ privacy.

[35] The Arbitrator defined the issues as follows:

[W]hether the Grievors had a reasonable expectation of privacy in respect of their online log, such that the Board’s first ITS search, Mr. Pettigrew’s search of Ms. Shen’s classroom computer, and the searches conducted after the Board had seized both of the Grievors’ classroom laptops should all be found to be breaches of their privacy. (at paragraph 189)

[36] The evidence consisted of some affidavits upon which there had been some cross-examination, and will-say statements. The Arbitrator did make some findings of fact but most of the evidence was not in conflict.

[37] The Arbitrator noted that the R v. Cole decisions in the Court of Appeal and the Supreme Court were distinguishable on the basis that the classroom laptops were not for the exclusive use of the Grievors but she was of the view that those decisions were of assistance in understanding what may amount to a privacy breach, and the limits to an expectation of privacy in the context of school board cases. (at paragraph 198) She relied on the test stated in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, that whether a teacher has a reasonable expectation of privacy depends on the totality of the circumstances. In paragraph 203, the Arbitrator cited Fish J. in Cole, at para. 40:

The “totality of the circumstances” test is one of substance, not of form. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

[38] The Arbitrator found that the log was the subject matter of the search and that the Grievors had a direct interest in the subject matter. The Arbitrator found that since Ms. Shen had set up the log in her private Google Docs account, which was password protected, and she had only given access to Ms. Rai, the Grievors had a subjective expectation of privacy regarding the log. Lastly, in her view, the Grievors’ subjective expectation of privacy was objectively reasonable in all the circumstances since they had taken steps to keep the log private and out of reach of the Board. (at paragraphs 212-215)

[39] The Arbitrator then noted that the fact that Ms. Shen had left the log open in the classroom on the Board’s classroom laptop meant that this was “a case of happenstance” because, but for Ms. Shen leaving it open, Mr. Pettigrew would not have found the log. Based on the totality of the circumstances, the Arbitrator concluded that Ms. Shen had a diminished expectation of privacy regarding the log. (at paragraphs 216-217)

[40] Having found a diminished expectation of privacy regarding the log, the Arbitrator then considered ETFO’s submission that the Grievors’ privacy had been breached in the following respects: (a) when IT Services conducted a search of the Board’s Google drives and did not locate any document shared between the Grievors; and (b) when Mr. Pettigrew searched the Board’s laptop in Ms. Shen’s classroom. (The Arbitrator also considered the impact of the December 17 seizure of Ms. Rai’s laptop but that was not an issue in this application.)

[41] With respect to the first search, IT Services conducted a search of the Board’s IT platforms. The Arbitrator concluded that, at that time, the Board did not know whether there was in fact a log and if there was one, it did not know its content. Regarding the need for those working in schools to act quickly to provide an orderly atmosphere required for learning, in paragraph 220, the Arbitrator quoted the Court of Appeal’s decision in R. v. Cole, 2011 ONCA 218, 105 O.R. (3d) 253, at para. 62, and noted as follows:

In M. (M.R.), at para. 47, Cory J. noted that teachers and principals must be able to act quickly to protect their students and to provide the orderly atmosphere required for learning. The Supreme Court of Canada noted that a school official should not be held to the same stringent standard as police when conducting searches of students. The principal had a statutory duty under s. 265 of Ontario’s Education Act to ensure a safe school environment, which implies an authority to conduct reasonable searches and seizures within his school without prior judicial authorization to fulfill that duty. [citations omitted.]

[42] However, the Arbitrator distinguished R. v. M. (M.R.), 1998 770 (SCC), [1998] 3 S.C.R. 393, on the basis that it involved a more intrusive type of search (the physical search of a student) while the matter before her did not involve the physical search of a student, and it was not a criminal matter. (at paragraphs 221-222)

(1) IT Services search of the Board online documents

[43] The Arbitrator pointed out that, in the employment context, there was a “balancing [of] the Grievors’ privacy interests . . . with an employer’s right to manage it’s enterprise.” (at paragraph 223) In a detailed analysis, the Arbitrator reviewed what had occurred in the fall term, focusing on what the Principal knew by December 16, 2014, from Ms. HH, Ms. P-M, and Ms. AM. The Arbitrator concluded as follows:

In all of the circumstances, and given the apparently toxic work environment within the Grade 2 teaching team, Mr. Pettigrew had ample reasonable cause for concern about the work and teaching environment, and the level of cooperation and coordination of effort within the Grade 2 teaching team. [As specified in s. 265(1) of the Education Act, R.S.O. 1990, c. E.2.] It was his duty to maintain order and discipline in his school, and in all of the circumstances, I find that there was reasonable cause for the Board to then conduct a search of the Grievors’ online Board files to see if they could find anything that both teachers were working on together. (at paragraph 224)

[44] In concluding that the balance favoured the Board, the Arbitrator pointed out that IT Services searched only for documents shared by the Grievors and was therefore a targeted, careful, and considered approach. The Arbitrator held that there was no breach of the Grievors’ privacy in the IT Services search of the Board online documents. (at paragraphs 225-226)

(2) Search of the Board’s laptop in Ms. Shen’s classroom

[45] In respect of the search of the Board’s laptop in Ms. Shen’s classroom, ETFO alleged breach of the Grievors’ privacy rights in four respects: (1) Mr. Pettigrew’s touching of the mouse pad to activate the screen; (2) his viewing of the log; (3) his subsequent scrolling through the entire log; and (4) his taking photographs of the entire log on his cell phone.

[46] The Arbitrator drew on and applied principles mainly from the Supreme Court decision in M. (M.R.), and the decisions of the Court of Appeal and of the Supreme Court in Cole.

[47] The Arbitrator referred to the findings she had made and conclusions she had reached in paragraph 224 in the context of the IT Services search and, in the context of the search of the classroom laptop, she held at paragraph 230 that (a) Mr. Pettigrew had the right, pursuant to s. 265 of the Education Act and in the context of maintaining order in his school, to ensure that the laptop had been turned off at the end of the school day; and (b) Mr. Pettigrew also had an obligation to take steps to ensure that the Grade 2 teachers were working well together, and that there were no toxic or destabilizing elements at work in the group. For those reasons, the Arbitrator concluded that he had reasonable cause to be searching for the log. (at paragraph 230)

[48] Regarding the first alleged breach related to the Board laptop, the Arbitrator found there was no breach of Ms. Shen’s reasonable expectation of privacy when Mr. Pettigrew touched the mouse pad. He had a legitimate reason for being in her classroom, namely to return the Lego robotics manual. He knew that all school computers should be shut down at the end of each day and he touched the mouse pad to see if it had been shut down. The classroom laptop was not for Ms. Shen’s exclusive use. When he touched the mouse pad, he saw a document called “Log Google Docs”. The Arbitrator held that Mr. Pettigrew could not have known that it was on Ms. Shen’s personal Google Docs account as there was nothing on the screen to suggest that Mr. Pettigrew knew that he had found the log that IT Services had not found. (at paragraphs 230-233)

[49] The Arbitrator held that the log had been left by Ms. Shen in plain view. She used the Board’s laptop and internet service to keep the log, she worked on it at school, and she had left it open on the Board laptop at the end of the school day. The Arbitrator also addressed Ms. Shen’s assertion that ETFO had told her to create the log. She found that there was no evidence that she was told to maintain the log while at work, on the Board’s laptop, or using the Board’s internet service. (at paragraphs 236-237)

[50] The Arbitrator concluded that Ms. Shen’s leaving the log open on the Board’s laptop, in plain view for anyone to activate and use, diminished her reasonable expectation of privacy. She held that Mr. Pettigrew did not breach her diminished expectation of privacy by touching the mouse pad and finding the log. (at paragraph 242)

[51] In considering the third and fourth breaches of privacy, the Arbitrator started with the analysis as to whether the log contained subject matter that constituted “biographical core of personal information”. The Arbitrator referred to the Supreme Court’s decision in Cole to note that the “closer the subject matter of the search lies to the biographical core of personal information, the more there can be a reasonable expectation of privacy”. (at paragraph 244)

[52] On reviewing the 100 entries, the Arbitrator found that the log was essentially pages of notes of what the Grievors observed; what either of the Grievors had said at the time in response to what they had observed; or their view of what had occurred, and that the majority of the notes related to observations of Mr. JH, Mr. Pettigrew, and Ms. P-M. The Arbitrator noted that

[o]verall, there was a judgmental quality to the notes, indicating that the Grievors had a point of view, which may be seen as getting closer to what may be characterized as each of the Grievor’s respective biographical core, but is still far from personal or intimate information about either of them. It is clear from the evidence of [Ms. HH, Ms. AM, Mr. LB, and Ms. P-M] that the Grievors had been verbally and otherwise expressing their negative views about [Mr. JH and Mr. Pettigrew] long before the log was found. As such, the log itself was not revelatory of their personal views about certain staff at Mount Joy PS. (at paragraph 246)

[53] The Arbitrator then balanced that finding against the Education Act mandate that the administration of the school has significant obligations to protect a safe and healthy learning environment and to ensure an orderly working environment and she concluded that the log was not close enough to the Grievors’ biographical core to find that scrolling through it or taking screenshots of it was a breach of the Grievors’ privacy. (at paragraph 247)

[54] The Arbitrator also noted that the second major issue was that, if a breach of privacy was found, whether any evidence arising out of the log could have formed the basis for the discipline that was meted out to the Grievors in the form of the Written Reprimand to each of them. The Arbitrator concluded that in all the circumstances of the case and the facts before her, the Board, having reviewed the content of the log, had the discretion to determine to conduct an investigation based on what it had found, and she would have allowed the Board to rely on the log. (at paragraphs 264-267)

Application for Judicial Review

[55] ETFO asks for an order quashing and setting aside the award of the Arbitrator and for a declaration that the Board breached the Grievors’ right to privacy.

[56] As indicated above, the only issue before the Arbitrator was whether the Grievors had a reasonable expectation of privacy that the Board violated by accessing private digital information without reasonable cause. She found that the Employer had reasonable cause to engage in the searches and the searches were conducted in a reasonable manner. The Application for judicial review is on that issue.

[57] The Arbitrator observed that had it been necessary, she would have allowed the Board to rely on the information found in the searches. That issue is not before us.

[58] This Application raises the following issues:

1. Should this court exercise its discretion to hear this judicial review Application given this matter may be moot?

2. What is the standard of review?

3. Was the Arbitrator’s Decision reasonable?

Analysis

Issue No. 1: Should this court exercise its discretion to hear this judicial review Application given this matter may be moot?

[59] The parties were asked whether this court should consider the matter, as the discipline imposed on the Grievors is no longer on their record. Consequently, the issue may be moot.

[60] Counsel take the same position. They agree that there is still a “live controversy” or concrete dispute to be addressed, namely the issue of a breach of the Grievors’ privacy. Alternatively, if moot, they take the position that the court should exercise its discretion to hear the matter.

[61] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court articulated the test as follows. First, the court must determine whether the case is moot. Second, if the matter is moot, the court may nevertheless choose to exercise its discretion to hear the case on the merits.

[62] The first branch of the Borowski test asks if there remains a live controversy. Is there a tangible and concrete dispute, or is the issue purely academic? The second branch requires the court to consider whether it should exercise its discretion to hear an otherwise moot appeal. Borowski set out three underlying rationales. These were summarized in R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 39:

(a) the existence of a truly adversarial context;

(b) the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases; [and]

(c) the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.

[63] I agree that, even if the Reprimand has been removed from their record and therefore cannot impact the Grievors’ professional reputation and career, there remains a live controversy over the question of the reasonable expectation of privacy of teachers in the circumstances. The issue is not moot.

[64] In the alternative, if the issue is moot, I agree that the application should be heard because there is a necessary adversarial context which has been addressed extensively before the Arbitrator and therefore the record is available. Furthermore, it is worthwhile to use scarce judicial resources to resolve the dispute arising from searches of digital information in what appears to be a matter of first instance. A determination of the issue is consistent with the court’s adjudicative role.

Issue No. 2: What is the standard of review?

[65] At the hearing, the parties agreed and submissions were made on the basis that the standard of review was reasonableness.

[66] Since the hearing, the Supreme Court issued three decisions on the law applicable to the judicial review of administrative decisions and this Court asked for written submissions on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 59 Admin. L.R. (6th) 1, and its companion case Bell Canada v. Canada (Attorney General), 2019 SCC 66, 441 D.L.R. (4th) 155.

[67] The revised standard of review analysis now begins with a presumption that reasonableness is the applicable standard in all cases. There are two instances where the reasonableness standard may not apply: first, where the legislature has indicated that it intends a different standard to apply (Vavilov, at paras. 34-35) and second, where the rule of law requires that the standard of correctness be applied (Vavilov, at para. 53). The parties agree that the reasonableness standard applies in this matter, and that the two exceptions as noted in Vavilov are not relevant considerations in this matter.

[68] I agree with the submissions of the parties that the reasonableness standard applies in this matter and that the exceptions are not relevant considerations.

Issue No. 3: Was the Arbitrator’s Decision unreasonable?

Positions of the Parties

[69] ETFO argues that the Arbitrator’s Decision was unreasonable for two reasons, namely she unreasonably interpreted and applied the Education Act and she unreasonably interpreted and applied privacy jurisprudence.

[70] More specifically, ETFO takes the position that the Arbitrator’s Decision was unreasonable in that it misperceived the nature of the Grievors’ privacy rights, allowed the Board to broadly invade those rights, and gave licence to the Board to use the results of that invasion to launch an investigation that would have otherwise not taken place. The ultimate result of the Board’s conduct led to the imposition of discipline on the Grievors, their transfer to another school, and damaged their professional and personal reputations.

[71] The Board submits that the Arbitrator’s decision that (a) the Grievors had a reasonable expectation of privacy in the content of the log that was diminished by the communal use of the computer, (b) the Board had reasonable grounds to search the log and the search was reasonable, and (c) the Board did not breach the Grievors’ reasonable expectation of privacy, reflected an analysis that is transparent, intelligible, and within the range of reasonable outcomes.

Did the Arbitrator unreasonably interpret and apply the Education Act?

[72] ETFO points out that the Arbitrator did not find that Mr. Pettigrew had reasonable cause to suspect that the Grievors had breached any laws or school rules or regulations. Instead, she found that Mr. Pettigrew only had a reasonable cause for concern about the work and teaching environment, and the level of cooperation and coordination of effort within the Grade 2 teaching team. The Arbitrator relied on M. (M.R.) to conclude that, pursuant to his duty to maintain order and discipline in his school as indicated in s. 265 of the Education Act, the Principal was justified in asking the Board’s IT department to conduct a search of the Grievors’ online files to see if any shared files could be found and in subsequently searching the Board computer in Ms. Shen’s classroom.

[73] ETFO also argues that the Arbitrator concluded that the situation in this case is “somewhat analogous” to the situation in Cole (at paragraph 252). In her view, when the Principal scrolled down the log taking photographs, he was acting in a manner no different than that of the IT technician in Cole, who, having found the secret file, took a screen shot of it to alert the school administration of what he had found. In ETFO’s submission, this matter is not at all analogous to the facts in Cole. In Cole, the routine IT maintenance revealed a photograph of a naked student on the teacher’s workplace laptop. This was evidence of a crime and a gross breach of the teacher’s duty warranting immediate dismissal and was clearly analogous to the “grave and urgent” situation referred to in M. (M.R.) that would require a school official to be able to act quickly and effectively to ensure the safety of students and to prevent serious violations of school rules (at paragraph 3.). In this case, the Principal had been told that some of their colleagues did not want to interact with the Grievors who might be keeping some kind of online log. ETFO argues that, at most, Mr. Pettigrew might have had a concern that the Grievors were creating or contributing to a toxic work environment, but there was no basis for him to be concerned that the interaction between the Grievors and other teachers was impacting or having any effect on students or on the orderly atmosphere required for learning.

[74] ETFO argues that keeping an online log is not evidence of a crime, of a violation of the school’s rules, of a breakdown in safety or discipline, or even of an adverse effect on the atmosphere for learning.

[75] While the Arbitrator found that the Board’s policy and procedure were of limited assistance in her consideration of the specific issues before her, she noted that the Board had a comprehensive policy. The Arbitrator also concluded there was no dispute that the Grievors completed the Annual Compliance Declaration in 2014 and signed off that they were alerted of the important Board Policies and Documents, one of which was the Board Technology Use policy. She did, however, find that not much turned on this.

[76] It is important to note Cory J.’s opening statement in M. (M.R.), at para. 1: “Teachers and those in charge of our schools are entrusted with the care and education of our children. It is difficult to imagine a more important trust or duty. To ensure the safety of the students and to provide them with the orderly environment so necessary to encourage learning, reasonable rules of conduct must be in place and enforced at schools.” In paragraph 224, the Arbitrator reviewed the extensive evidence and held that “in all of the circumstances, and given the apparently toxic work environment within the Grade 2 teaching team, Mr. Pettigrew had ample reasonable cause for concern about the work and teaching environment, and the level of cooperation and coordination of effort within the Grade 2 teaching team.” That evidence leads to a conclusion of a breach of school regulations or discipline. A toxic work environment is contrary to Board policy and procedure. The Arbitrator’s conclusion that, in accordance with s. 265 of the Education Act, Mr. Pettigrew, as the Principal, had a duty to maintain order and discipline in his school was reasonable.

[77] The Arbitrator’s conclusion that Mr. Pettigrew was justified in asking the Board’s IT department to conduct a search of the Grievors’ online files to see if any shared files could be found and in subsequently searching the Board computer in Ms. Shen’s classroom was also based on the evidence and was reasonable.

[78] While it may be true that the log is not evidence of a crime or a breakdown in safety or discipline, it is evidence of a violation of the Board’s policy and procedure and adversely affects the atmosphere for learning. As the Arbitrator noted at paragraph 27, Ms. P-M took a personal illness day due to the stressful situation caused by the Grievors and, at paragraph 39, Ms. HH had taken several days of sick leave for the same reason. That would have led to a substitute teacher or a colleague teaching her classes and could have affected the students’ learning.

[79] Regarding whether this matter is analogous to Cole, the principles in that decision are relevant to this Application for judicial review. Although not the same type of search, i.e., a search of a laptop that was in the exclusive possession of a teacher with the discovery of child pornography versus a search of a Board computer that was located in the classroom, the issue still relates to a search within a school environment. The same can be said regarding the facts in M. (M.R.) where the search related to a student’s body and his locker. Notwithstanding, that search was conducted in a school environment. ETFO is correct that this case did not involve guns, drugs, or child pornography. The Arbitrator recognized that there was no criminal element in this matter. Similar to the IT technician in Cole, Mr. Pettigrew’s inspection of Ms. Shen’s computer was undertaken within the course of his duties as the Principal to “develop co-operation and co-ordination of effort among the members of the staff of the school” (Education Act, s. 265). The Arbitrator’s conclusion that the legal duties of a Principal as set out in the Education Act are clearly not confined to such situations was reasonable.

[80] ETFO makes a floodgates argument regarding the Education Act. It argues that if this act can be used to justify Mr. Pettigrew’s search for the log in this context, it would mean that Principals have a virtually unfettered right at any time to conduct a search of any kind – whether of a classroom computer, a desk, a teacher’s personal property, or any other location in respect to which a teacher may have a reasonable expectation of privacy under the guise of ensuring a safe and orderly environment for students. This argument is untenable and not supported by the findings of the Arbitrator. The search in question was not random or speculative. It was prompted by concerns expressed by teachers and a school staff member to Mr. Pettigrew regarding the Grievors’ actions. The decision is consistent with the requirement that each matter/search must be assessed individually while taking into consideration all of the circumstances.

[81] The Arbitrator’s line of reasoning demonstrates “justification, transparency and intelligibility within the decision-making process”. The decision of the Arbitrator finding that the “totality of the circumstances”, including s. 265, constituted reasonable cause to conduct the search was within the range of acceptable outcomes.

Did the Arbitrator unreasonably interpret and apply privacy jurisprudence?

[82] ETFO makes four submissions. First, that the Arbitrator refused to consider whether the Principal had reasonable alternatives to searching the computer. Second, that the Arbitrator’s finding that the log did not constitute personal biographical information was unreasonable. Third, that the fruits of a search cannot justify an unreasonable privacy violation. Last, that the Arbitrator failed to recognize that there were three searches, each of which had an independent and cumulative privacy impact.

(1) Reasonable alternatives

[83] As articulated, the Applicant’s submission relates to “searching the computer”. This issue arose in paragraphs 257-262 of the Decision. In paragraph 257, the Arbitrator indicated that ETFO relied on Saskatchewan Government and General Employees Union v. Unifor Local 481, [2015] S.L.A.A. No. 8 (A. Ponak), for the proposition that the Board should have exhausted other options before it began to search its systems for the log. In other words, the submission before the Arbitrator dealt with the IT Services search, not the search by the Principal. The balance of that section appears to be focused on the IT Services search. Based on the factum and the submission, it appears that ETFO takes the position that the “reasonable alternatives” test applies both to the IT Services search and to the search by the Principal, and I will deal with it in that fashion.

[84] The Arbitrator did not “refuse to consider” the issue nor “summarily dismiss the argument” that the Principal should have taken other steps to deal with the allegations involving the Grievors. As that section of the Decision demonstrates, the Arbitrator referred to the decision in Saskatchewan Government, acknowledged the Doman test that requires an assessment of whether, in all the circumstances, it was reasonable for the employer to engage in the surveillance (or search or seizure); whether the surveillance (or search or seizure) was conducted in a reasonable manner; and whether there were other alternatives open to the employer to obtain the evidence sought; and that each case must be decided on its particular facts. (at paragraph 258)

[85] The Arbitrator observed that it was unclear why, in light of the decision of the Supreme Court in Cole, it was necessary to consider the Doman test when the Court has articulated the “totality of circumstances” test as the one to be applied when considering alleged breaches of an individual’s privacy interests. She nonetheless considered whether the third prong was a factor. In the end, the Arbitrator held that the surveillance jurisprudence was not of assistance in this case. And she referred to the decisions of the arbitrators in Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Collins Grievance), [1999] O.L.A.A. No. 73 (Johnston), and Teamsters, Local 419 v. Securicor Cash Services, [2004] O.L.A.A. No. 99 (K. Whitaker), where, in each case the arbitrator held that an employer is not required to prove that other alternatives have been exhausted before the search was undertaken.

[86] In any event, it is well established that Arbitrators are not bound by any prior arbitration awards (Isabelle v. Ontario Public Service Employees Union, 1981 44 (SCC), [1981] 1 S.C.R. 449, at p. 457; Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929). This was noted by Iacobucci J. in Weber, at para. 14:

The first significant difference between courts and tribunals relates to the difference in the manner in which decisions are rendered by each type of adjudicating body. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the Arbitrator is not bound to follow the decisions of other Arbitrators, even when similar circumstances arise.

[87] Furthermore, the Supreme Court in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 5-6, has recognized that labour arbitrators have considerable latitude to develop or modify doctrines appropriate in their field:

Labour arbitrators are not legally bound to apply equitable and common law principles . . . in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations.

To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.

[88] To the extent that the Arbitrator’s decision was relevant only to the search by IT Services, it was reasonable. In the circumstances of this case, there was no reason for the employer to consider “other alternatives” before having its corporate IT Services conduct a search of its own systems.

[89] To the extent that the Arbitrator’s decision was also relevant to the search by the Principal of Ms. Shen’s laptop, it is not reasonable to consider “other alternatives” when, in the circumstances of this case, Mr. Pettigrew’s search occurred “by happenstance” because Ms. Shen had left the laptop on.

(2) Biographical core

[90] ETFO’s second challenge to the Arbitrator’s findings arising from privacy jurisprudence is with respect to the decision that the contents of the log did not lie at the “biographical core” of the Grievors.

[91] This arises in the Arbitrator’s consideration of the third and fourth alleged breaches of the Grievors’ reasonable expectation of privacy.

[92] As indicated above, based on the “totality of the circumstances”, the Arbitrator did accept ETFO’s argument that the Grievors had a reasonable expectation of privacy in the log. The Arbitrator went on to conclude that because Ms. Shen had left the log open, the Grievors had a diminished expectation of privacy. The analysis of “biographical core” was in the context of the submission by ETFO that the Board had breached that reasonable expectation of privacy in scrolling through the entire log and in taking photographs of the entire log on his cell phone.

[93] The Arbitrator reviewed the log and held that it was essentially pages of notes of what the Grievors observed and what the Grievors said they had observed. (at paragraph 245) The log contained notes about what was happening in the workplace and was about teachers and the administration. As the Arbitrator noted:

Overall, there was a judgmental quality to the notes, indicating that the Grievors had a point of view, which may be seen as getting closer to what may be characterized as each of the Grievor’s respective biographical core, but is still far from personal or intimate information about either of them. (at paragraph 246)

[94] The Arbitrator concluded that the entries were not in the nature of emails between spouses, and were not related to medical, banking, or other intimate personal matters. (at paragraph 246)

[95] In the course of arriving at the decision on this point, the Arbitrator again referred to the Education Act and the mandate that the administration of the school has significant obligations to protect a safe and healthy learning environment. In that context, the Arbitrator’s conclusion that “the log was not close enough to the Grievors’ biographical core to find that scrolling through it or taking screenshots of it was a breach of these Grievors’ privacy” was reasonable (at paragraph 247).

(3) Fruit of the search

[96] ETFO argues that the fact that the Principal actually found the Grievors’ “diary” when he searched the computer in Ms. Shen’s classroom cannot justify what was an unreasonable search.

[97] The Arbitrator noted in paragraph 145 that the Grievors “treated the document as a personal and private diary” but that Ms. Shen conceded that she had made Ms. P-M aware of the existence of the log and that the Grievors may have been overheard discussing the log. The Arbitrator consistently referred to it as a log.

[98] The Arbitrator did not use the content of the log to justify ex post facto what was otherwise an unreasonable search. ETFO does not refer to any passage in the decision that suggests that the Arbitrator engaged in that line of reasoning.

[99] The only passage that might bear on this issue is in paragraph 252 that is in the context of the third and fourth alleged breaches. By scrolling through the log, the Principal became aware of the contents of the log. Based on the contents of the log, the Principal took photographs of the log. That does not constitute an ex post facto rationalization for, by happenstance, finding the log because Ms. Shen left the laptop open.

(4) The Arbitrator analyzed the three searches independently

[100] ETFO takes the position that the Principal conducted three distinct searches: when he touched the mouse pad and saw the first page of the document; when he scrolled through the document in its entirety; and, hours later, when he reviewed the photographs he had taken using his cell phone and read the document. ETFO asserts that the Arbitrator unreasonably found that the first was justified and therefore, so too were the second and the third. Furthermore, ETFO asserts the Arbitrator failed to recognize that each of the three searches independently impacted the Grievors’ privacy rights in a manner that was cumulative.

[101] As the Decision indicates, the Arbitrator addressed each of the searches independently. The Arbitrator did not conclude that because the Principal touched the mouse pad and saw the first page, he was justified scrolling through the document and then reading it in its entirely. The Arbitrator did not consider the alleged violation of scrolling through the rest of the opened document in the context of the “plain view” doctrine. The Arbitrator reviewed the nature of the contents of the log, and considered whether it constituted information related to the Grievors’ biological core in the context of the principal’s statutory mandate of “ensuring an orderly working environment”. (at paragraphs 243-252) Having found that none of the three searches impacted the Grievors’ reasonable expectation of privacy, there was no cumulative aspect to consider.

[102] The Arbitrator’s line of reasoning demonstrates “justification, transparency and intelligibility within the decision-making process”. The decision of the Arbitrator that the search was reasonable was within the range of acceptable outcomes.

Dissenting Reasons

[103] Finally, I turn to make a brief comment regarding the reasons for decision of Sachs J. As indicated in paragraph 110 she approaches her analysis as a balance between the Grievors’ “rights under s. 8 of the Charter against the statutory objectives that the Principal was seeking to enforce”. I disagree with that analytical framework. Unlike in a criminal context, in a workplace environment, an employee does not have a s. 8 right to be secure against unreasonable search and seizure. The Arbitrator reasonably concluded the Grievors had a reasonable expectation of privacy that was diminished. The Arbitrator was required and did balance that diminished expectation of privacy against the duty of the employer to manage the workplace and the Arbitrator arrived at a reasonable conclusion.

Conclusion

[104] ETFO urges this court to pick apart the Arbitrator’s Decision and review every element of her analysis. However, this is not the appropriate approach. In Vavilov, at para. 91, the Supreme Court advises us to review an administrative decision while being mindful of the context in which it was made:

A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.

[105] The reasons by the Arbitrator, taken as a whole, are tenable as support for the decision. (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 56)

[106] As indicated by the Board in its factum, the onus confronting the Applicant is particularly difficult to satisfy because it involves two levels of deference: not only is the decision protected by the “reasonableness” standard, but it must be kept in mind that the Arbitrator was only required to determine whether the actions of the Board constituted a “reasonable” search. The Applicant has failed to meet that onus.

[107] On the basis of the parties’ agreement as to amount, subject to outcome, the Applicant shall pay costs to the Respondent in the amount of $10,000.

O’Bonsawin J.

I agree ________________________ Kiteley J.

H. Sachs J. (dissenting)

Overview

[108] I agree that the applicable standard of review is reasonableness. I do not agree that the Arbitrator’s Decision is reasonable.

[109] The Arbitrator’s Decision contains both of the fundamental flaws identified at paragraph 101 of Vavilov. Her reasons disclose what the Supreme Court describes as “a failure of rationality internal to the reasoning process.” The result is also untenable given the “relevant factual and legal constraints that bear on it.”

[110] In this case the Arbitrator was required to balance the Grievors’ rights under s. 8 of the Charter against the statutory objectives that the Principal was seeking to enforce under s. 265 of the Education Act: maintaining proper order and discipline in the school and developing co-operation and co-ordination of effort among the members of the staff of the school. A reasonable decision is one where the Charter right at issue is impaired no more than is necessary given the statutory objectives (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395).

[111] The Arbitrator’s reasons on the issue of whether the Grievors’ s. 8 Charter rights were breached contain an internal inconsistency. They also disclose a misunderstanding of key aspects of the rights provided to Canadians by s. 8 of the Charter. This made her reasons neither intelligible nor justifiable.

[112] Employees should be disciplined for what they do, not for what they think and say in a private communication. The Arbitrator’s Decision allowed a school board to access what are essentially the private thoughts and communications of two of their teachers. To permit this in the name of “maintaining order and discipline” or “developing co-ordination and co-operation among staff members” is to unjustifiably impair the Charter rights of teachers (and potentially other people in the workplace) far more than is necessary.

Standard of review

[113] One of the categories of legal questions that respect for the rule of law requires the court to review on a correctness basis is constitutional questions (Vavilov, para. 53). In this case the Arbitrator addressed a constitutional question – were the s. 8 rights of the Grievors breached? Does this require the court to apply a correctness standard of review?

[114] That question is answered in para. 57 of Vavilov, which states:

Although the amici questioned the approach to the standard of review set out in Doré v. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.), a reconsideration of that approach is not germane to the issues in this appeal. However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter (see, e.g., Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504 , at para. 65). Our jurisprudence holds that an administrative decision maker’s interpretation of the latter issue should be reviewed for correctness, and that jurisprudence is not displaced by these reasons.

[115] The case at bar is a case about whether the the Arbitrator’s Decision unjustifiably limited the Grievors’ rights under the Charter. Thus, it does not fall into the category of constitutional questions for which a correctness review is required.

What is involved in a reasonableness review?

[116] As Vavilov emphasizes, a reasonableness review is concerned both with the decision-making process and its outcomes. With respect to the decision-making process, a court must be concerned with the existence of justification, transparency, and intelligibility within the decision-making process. With respect to outcomes, the outcome must fall within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. (Vavilov, para. 86).

[117] The burden is on the Applicant to demonstrate that the impugned decision is unreasonable. (Vavilov, at para. 100).

[118] A reasonable decision-making process must produce reasons that are internally coherent. However:

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because the reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. (Vavilov, para. 100).

[119] If after reading a decision “with sensitivity to the institutional setting and in light of the record”, a court concludes that it is based on “an unreasonable chain of analysis”, the court should not ordinarily “fashion its own reasons to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome.” (Vavilov, para. 96).

[120] In terms of result, a decision must be assessed in light of the relevant law and facts to see if it is justifiable. The elements that must be considered in evaluating whether a decision is reasonable are:

[T]he governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submission of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. (Vavilov, para. 106).

Is the Doré framework the appropriate analytical tool?

[121] At paragraph 103 my colleagues disagree that the appropriate analysis is one that seeks to balance the Grievors’ s. 8 rights against the statutory objectives that the Principal was trying to enforce (the Doré analysis). They say that employees in a workplace context have no right to be protected from unreasonable search and seizure under s. 8 of the Charter. As set out below (and as impliedly found by the Arbitrator), the Charter does apply to the Principal’s actions and the Grievors do have s. 8 rights even though they are in a workplace environment. However, these rights must be balanced against the statutory objectives of the Education Act. This proportionate balancing of statutory objectives and Charter rights is the analytical framework used in Doré. It is the appropriate framework to use in this case. In fact, while not directly referencing Doré, it is the framework that the Arbitrator used.

The Charter applies to school boards and school officials

[122] Counsel for the York Region District School Board agreed in oral argument that the Charter applies to school boards.

[123] Counsel’s position is consistent with the relevant caselaw. Both Cole and M.(M.R.) apply the Charter to school boards and school officials. These two cases were the focus of the Arbitrator’s decision. However, neither case directly addressed the issue. Both cases applied the Charter to the actions of school officials, declined to specifically address the issue, and noted that the Crown had conceded that the Charter applied in the prior decisions (Cole, at para. 38; M.(M.R.), at paras. 24-25). While the issue was not expressly considered, the Supreme Court of Canada did apply the Charter to school officials and did not consider it necessary to distance itself from that analysis.

[124] In Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, the Supreme Court held at para. 22 there was “no question” that the Charter applied to a Quebec school board’s council of commissioners. In Chamberlain v. Surrey School District No. 36, 2002 SCC 86, Gonthier J. wrote at para. 121 (dissenting, but not on this point, which the majority found unnecessary to consider) that there was “no doubt” that a school board was subject to the Charter.

[125] Ontario courts have directly considered this issue. In Simon Gillies et al. v. Toronto District School Board, 2015 ONSC 1038, Justice Himel considered whether a mandatory breathalyzer test at a high-school prom violated the students’ s. 8 Charter rights. Justice Himel first assessed, at paras. 35-40, whether the Charter applied to the school board and the principal under s. 32 of the Charter. She found, at para. 39, that “the Charter applies to the TDSB, and the actions of the principal, whose powers and duties are derived from the Education Act and its regulations.”

Do employees have fewer Charter rights than other citizens?

[126] My colleagues write “Unlike in a criminal context, in a workplace environment, an employee does not have a s. 8 right to be secure against unreasonable search and seizure.” I disagree.

[127] The York Region District School Board is a state actor. The Charter applies to state actors. Section 8 is a Charter right. It follows, inexorably, that s. 8 would apply to the actions of the York Region District School Board and the Principal. Granted, s. 8 cases arise much less frequently in the workplace context than in the criminal context. An infrequent need to invoke a right does not diminish its content.

[128] Recent caselaw supports the conclusion that s. 8 of the Charter applies at the workplace. See, for example: Canada (Union of Correctionnel Officers) v. Canada (Attorney General), 2019 FCA 212; Reference re Marine Transportation Security Regulations, 2009 FCA 234; TransAlta Corporation v. Market Surveillance Administrator, 2014 ABCA 196; and B.C. Teacher’s Federation v. School District No. 39, 2003 BCCA 100.

[129] Ontario caselaw also supports this conclusion. In Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078, Associate Chief Justice Marrocco held that the Charter applied in a workplace context. At para. 30, he held “Specifically, [the Fitness for Duty Policy] is subject to the employee’s right to be free from unreasonable search and seizure.”

Conclusion regarding whether the Doré framework is applicable in this case?

[130] In a case involving Charter rights and an administrative decision-maker, Doré applies. Labour arbitrators are administrative decision makers. Doré held at para. 35 that discretionary decisions should consider Charter values: “[A]dministrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise.”

[131] This approach was reiterated and applied in Loyola High School v. Quebec (Attorney General), 2015 SCC 12. Loyola also explained the procedure on a judicial review such as this, at para. 37: “On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate.”

[132] Finally, as already noted, the Arbitrator effectively applied a Doré analysis. She considered the Principal’s statutory duties and balanced them against the Grievors’ reasonable expectation of privacy – their s. 8 Charter right.

The Arbitrator’s reasoning process

Overview of the Arbitrator’s reasoning process

[133] The Arbitrator correctly begins her analysis by examining whether the Grievors had a reasonable expectation of privacy in respect of the log or diary that they kept. As noted in the Arbitrator’s reasons, the Grievors, on the advice of the Union, were keeping an online log or diary of their concerns, experiences and frustrations with what was going on in their school. They did so partly to share and partly to have something that would allow them to refresh their memories should it ever be necessary to do so. For this purpose, Ms. Shen, one of the Grievors, created a private shared Google document using her personal Gmail account. She authorized Ms. Rai, the other Grievor, to have editing access to the document by sharing it through Ms. Rai’s personal Gmail account. She created the document using Google Docs, and sent Ms. Rai an invitation to contribute to the document using her personal Gmail account.

[134] The Grievors occasionally accessed the log or diary from the laptop computers in their classrooms. These computers were the property of the Employer. They were used in the classroom in presenting lessons and were not for the Grievors’ exclusive use. Teachers were required, however, to keep them password protected.

[135] The log or diary was not saved on any of the Employer’s IT platforms, or on the laptops themselves. Rather, it was stored in the “cloud”, on Ms. Shen’s private Google account. The Grievors’ personal Gmail accounts were protected by different passwords than the passwords used on the Google account provided by the Employer. Their personal Google accounts were accessible via a web browser. Their personal Google accounts were distinct from the log-in account for the laptop, the laptop hard drive, or Google Drive set up through their employment.

[136] On December 16, 2014 the Principal went into Ms. Shen’s classroom after school had ended and Ms. Shen had left. By this time, he was aware of the existence of the log and was looking for it. He had had the IT department review the school’s hard drives and Google Drives to search for the log. The Principal had been told that this search was unsuccessful.

[137] On December 16th, when the Principal went into Ms. Shen’s classroom, he saw Ms. Shen’s classroom laptop sitting open on a table. The laptop screen was black. The Principal touched the mouse pad, the screen opened up and a document called “Log Google Docs” was open on the screen. Mr. Pettigrew read what was open on the screen and realized that this was the log he had been searching for. He scrolled through the document and used his cellphone to take screenshots of the document.

[138] In deciding whether the Grievors had a reasonable expectation of privacy in the log or diary the Arbitrator appropriately reviewed and considered the test applied by the Supreme Court of Canada in R. v. Cole, [2012] 3 S.C.R. 34, 2012 SCC 53. That test requires a consideration of the “totality of the circumstances”. Applying the test involves conducting four line of inquiry:

(1) An examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation was objectively reasonable having regard to the totality of the circumstances. (Cole at para. 40, cited in the Arbitrator’s Decision at paragraph 203).

[139] The Arbitrator applied that test to the facts before her and, after examining the subject matter of the search (the log or diary), concluded that the Grievors had a direct interest in the subject matter of the search, had a subjective expectation of privacy in the log and that this subjective expectation was objectively reasonable having regard to the totality of the circumstances. However, at paragraphs 216-217 of her decision, she also found that their subjective expectation of privacy was diminished by the fact that the document was left open on a classroom computer, which was not for the exclusive use of a particular teacher.

[140] The Arbitrator went on to examine whether the Grievors’ reasonable expectation of privacy was breached by the Principal or the Board. In doing so, she considered both the search by the IT department and four aspects of the search by the Principal – his touching of the mouse pad to activate the screen, his viewing of the log that he found on the screen, his scrolling through the entire log and his taking screenshots of the log on his cellphone.

[141] The Arbitrator concluded that none of the actions of the Principal or the Board breached the Grievors’ reasonable expectation of privacy because:

(a) The Principal had reasonable cause to be looking for the log. More specifically, the Principal had reasonable cause to exercise his powers under s. 265 of the Education Act (Arbitrator’s Decision, paragraphs 229-230). The Arbitrator also found that the Principal had reasonable cause to be looking for the log because “having found and looked at it, it was clear to him that the log contained information that he felt may be contributing to a toxic work environment at the school, and he noted that it contained notes relating not just to [Mr J. H.], but also to the Principal himself, and to other teachers in the school.” (Arbitrator’s Decision, paragraph 252).

(b) The log was left in plain view “of anyone who touched the laptop, before it eventually shut down automatically.” (Arbitrator’s Decision, paragraph 236).

(c) After examining the contents of the log, the Arbitrator concluded that:

246. The information in the log did not touch on the Grievors’ biographical core as it has been found in other cases: the entries were not in the nature of emails between a husband and wife, and were not related to medical, banking, or other intimate personal matters. The log essentially contained notes about what was happening in the workplace, and was about teachers and the administration at Mount Joy PS. Overall, there was a judgmental quality to the notes, indicating that the Grievors had a point of view, which may be seen as getting closer to what may be characterized as each of the Grievors’ respective biographical core, but is still far from personal or intimate information about either of them. It is clear from the evidence of [Ms. HH, Ms. AM, Mr. LB, and Ms. P-M] that the Grievors had been verbally and otherwise expressing their negative views about [Mr. JH] and Mr. Pettigrew long before the log was found. As such, the log itself was not revelatory of their personal views about certain staff at Mount Joy PS.

247. In any event, in the context of a school, where the Education Act mandates that the administration of the school has significant obligations to protect a safe and healthy learning environment, and where the Supreme Court has found that obligation to extend to ensuring an orderly work environment, I am satisfied that the log was not close enough to the Grievors’ biographical core to find that scrolling through it or taking screen shots of it was a breach of these Grievors’ privacy.

[142] Having found no breach of the Grievors’ privacy, the Arbitrator did not need to go on to consider whether the contents of the log could form the basis for disciplinary action against the Grievors. However, in the last paragraph of her decision, the Arbitrator states that:

267. To the extent that it is necessary for me to opine on this issue, in my view in all the circumstances of this case and the facts before me, the Board, having reviewed the content of the log, had the discretion to determine to conduct an investigation based on what it had found, and I would have allowed it to rely on the log.

The errors in the Arbitrator’s reasoning

[143] In my view the Arbitrator’s reasons failed to reasonably understand and apply s. 8 jurisprudence in three significant ways. The impact of these errors is twofold.

[144] First, as the Arbitrator made significant errors in applying s. 8, the Decision was not sufficiently justified or intelligible. A decision that is not justified or intelligible is not reasonable. (Vavilov, at para. 86).

[145] Second, as the Arbitrator made significant errors in understanding s. 8, she was not able to proportionately balance s. 8 Charter values with the statutory objectives. (Doré, at paras. 55-58). A decision which does not properly balance the relevant Charter value with the statutory objectives is not reasonable. (Doré, at para. 58).

[146] I turn first to the Arbitrator’s s. 8 errors.

1. The Arbitrator used the content of the information in the log to justify a further breach of the Grievors’ privacy

[147] The fruits of a search cannot justify an unreasonable privacy violation. To hold otherwise would undermine privacy rights and interests generally. The goal is to stop the search, not to allow the search and then decide later whether the evidence obtained in the search is admissible in a proceeding. (R. v. Marakah, [2017] 2 S.C.R. 608 at para. 48, 2017 SCC 59; R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36 at pp. 49-50). In this case, the Arbitrator used the fruits of the search to justify the privacy violation.

[148] The Arbitrator held that the Principal’s incidental finding of the log entitled him to look at the log and then, based on what he read, he was entitled to further search the log by scrolling through it and taking screenshots. This is clear from paragraph 252, which I will reproduce again for ease of reference:

The Principal had reasonable cause to be looking for the log. Having found and looked at it, it was clear to him that the log contained information that he felt may be contributing to a toxic work environment at the school, and he noted that it contained notes relating not just to [Mr. JH], but also to the Principal himself, and to other teachers in the school. In all the circumstances, I find that it was not a breach of Ms. Shen’s reasonable expectation of privacy for Mr. Pettigrew to have scrolled through the log and taken screen shots of it [emphasis added].

2. The Arbitrator’s finding that the content of the log was not at the “biographical core of personal information” is internally inconsistent with her earlier finding.

[149] As discussed, the Arbitrator found that the contents of the log did not touch on the “biographical core” of the Grievors (Arbitrator’s Decision, paragraph 246). This finding contradicts her earlier finding that the Grievors’ subjective expectation of privacy in the contents of the log was objectively reasonable (the fourth step in the “totality of the circumstances” inquiry applied in Cole).

[150] The point of the fourth step is to determine whether a person’s subjective expectation of privacy is objectively reasonable and therefore worthy of Charter protection. If the subject matter of the claim lies close “to the biographical core of personal information,” as that term is understood in the case law, then it is worthy of Charter protection. If it is not, then the subjective expectation of privacy will not be found to be objectively reasonable and worthy of Charter protection. This is clear from paras. 44-48 of Cole. In those paragraphs the Supreme Court discusses what must be considered in deciding whether a person’s subjective expectation of privacy was objectively reasonable and states that there is no definitive list of factors to be considered. However, as put by the Supreme Court:

46. The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest.

47. Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical and personal information”… This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet[.]”

48. This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.

[151] Thus, the Arbitrator’s finding that the Grievors’ subjective expectation of privacy was objectively reasonable was tantamount to an acceptance that the information in the diary was close to the “biographical core of personal of personal information” as that term is understood in the case law. Such information can include the private thoughts of people about what is going on around them and their likes and dislikes in relation to the matters they are observing. (Cole, at para. 47). The fact that the information is shared with and created by two people does not change the private nature of that information. The right to privacy includes the right to choose with whom to share private information.

[152] It is not consistent for the Arbitrator to find that the Grievors had an objectively reasonable expectation of privacy, but that the subject matter of the search was not within their biographical core.

[153] The Arbitrator relied on her finding that the log was outside of the “biographical core” to find the Principal did not breach the Grievors’ privacy by scrolling through the log or taking screenshots of it. (Arbitrator’s Decision, paragraph 247). This reliance compounds the error by using an erroneous premise as justification for her conclusion.

3. The Arbitrator misapplied an established component of s. 8 jurisprudence: the “plain view” doctrine

[154] The Arbitrator relied on her conclusion that the laptop computer was in “plain view” to ground her conclusion that the Grievors’ privacy rights had not been violated by any of the Principal’s actions. The difficulty with this logic is that even if the concept of plain view could justify the Principal’s touching of the mouse pad, it could not justify his scrolling through the log thereafter. By relying on plain view to justify the second, broader search, the Arbitrator misunderstood the well-established role that “plain view” plays at common law. This role is explained by the Ontario Court of Appeal in R. v. Jones, 107 O.R. (3d) 241, 2011 ONCA 632, at para. 56:

[56] The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:

(i) The officer must be lawfully in the place where the search is being conducted…

(ii) The nature of the evidence must be immediately apparent as constituting a criminal offence;

(iii) The evidence must have been discovered inadvertently;

(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

[155] The doctrine is not exclusively limited to police and peace officers. In R. v. Cole, 2011 ONCA 218, rev’d on other grounds 2012 SCC 53, the Court of Appeal held that the files were in “plain view” of the technician. The technician was acting lawfully when he encountered the files, and his seizure of the files was lawful. (Cole ONCA, para. 80).

[156] In this case, the Arbitrator sought to use the doctrine to justify an exploratory search (not seizure) where the Principal was intentionally searching for the item in question. The law is clear that the doctrine cannot be used in these circumstances.

[157] At paragraph 96, Vavilov informs the reviewing court that it must read the decision with “sensitivity to the institutional setting”. For example, if the decision-maker was clearly using a common-sense understanding of the phrase “plain view”, that should factor into the analysis. It would be contrary to Vavilov’s directive to avoid undue scrutiny. That is not the situation here. Notably, the Arbitrator relied on Cole for the use of the “plain view” doctrine (Arbitrator’s Decision at paragraph 241). The phrase was taken from s. 8 jurisprudence. To take a phrase with clear legal meaning and to substitute a new meaning is unreasonable as it undermines the intelligibility and justifiability of the decision.

4. The impact of the Arbitrator’s errors

[158] The first defect, as noted, displays a fundamental misconception of the nature of the Grievors’ Charter right. It is a right to be free from search and seizure. Assessing whether the right has been infringed by considering the fruits of the search would only encourage authorities to search first and justify later. This in turn renders the right meaningless. The fact that the Arbitrator used what was found in the log as a basis for her conclusion that the Grievors’ rights were not breached makes her decision both unintelligible and unjustifiable.

[159] The internal contradiction in the Arbitrator’s decision significantly impacts on the intelligibility of her decision and displays a lack of appreciation for the kind of the information that is encompassed by the s. 8 right, which also affects the justifiability of her reasoning process.

[160] The Arbitrator’s misuse of the “plain view” doctrine displays a troubling lack of appreciation for the limits on the abilities of authorities to search and seize objects or information that is subject to a reasonable expectation of privacy. Understanding these limits is fundamental to being able to conduct an intelligible and justifiable analysis of whether a person’s section 8 rights have been breached.

[161] For these reasons I find that the Applicant has met its burden of establishing that the Arbitrator’s decision does not “bear the hallmarks of reasonableness.” (Vavilov, at para. 100).

The Arbitrator’s balancing of statutory objectives and Charter values

[162] Doré, supra provides the framework for assessing the reasonableness of the outcome of the Arbitrator’s Decision. At paras. 57-58 the Supreme Court states:

[57] On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protection at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.

[58] If, in exercising statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found the be reasonable.

The statutory objectives

[163] The Respondent Board identified the following statutory objectives under s. 265 of the Education Act:

Duties of Principal

265 (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,

discipline

(a) to maintain proper order and discipline in the school;

co-operation

(b) to develop co-operation and co-ordination of effort among the members of the staff of the school.

Reviewing the Arbitrator’s balancing of statutory objectives and Charter values

[164] Although the Arbitrator did not cite Doré or use the phrase “statutory objectives”, the Arbitrator’s Decision clearly involved a balancing of the statutory objectives and Charter values. I agree with the majority that the reasons need not include “all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred”. (Vavilov at para. 91, citing Newfoundland Nurses, 2011 SCC 62 at para. 16).

[165] The Arbitrator referenced the Principal’s statutory duties (Arbitrator’s Decision, paragraphs 224, 248-252) and endeavoured to balance “the Grievors’ privacy interests and those of the Board”. (Arbitrator’s Decision at paragraph 223).

[166] The Arbitrator relied on the evidence that the Principal had concerning the difficulties in the Grade 2 teaching team. The impact of the negativity exhibited by the Grievors to others in the school (the particulars of which are detailed in the majority’s decision) gave the Principal:

“ample reasonable cause for concern about the work and teaching environment, and the level of cooperation within the Grade 2 teaching team. It was his duty to maintain order and discipline in his school, and in all of the circumstances, I find that there was reasonable cause for the Board to then conduct a search of the Grievors’ online Board files to see if they could find anything that both teachers were working on together.” (Arbitrator’s Decision, paragraph 224).

Thus, the Arbitrator relied on the Principal’s duty to maintain order and discipline to justify the request for a search by the Board IT Services.

[167] With respect to the Principal’s touching of the mouse pad the Arbitrator found that this action was justified as maintaining order in the school required ensuring that all laptops were turned off for the day. (Arbitrator’s Decision, paragraph 231).

[168] With respect to the scrolling through of the log, the Arbitrator found that when the Principal saw a document called “Log Google Docs” he knew that he had found the document that he had been looking for and that it belonged to the Grievors. On the other hand, the Arbitrator found that the Principal could not have known that it was on Ms. Shen’s personal Google Docs account. (Arbitrator’s Decision, paragraph 233).

[169] The Arbitrator also concluded that the Principal had reasonable cause to be looking for the log and that the Principal’s need to provide a safe and healthy learning environment justified his scrolling through the log and taking screen shots of it. (Arbitrator’s Decision, paragraph 252).

The content of the section 8 right at issue

[170] The subject matter of the log consisted of the observations of the Grievors’ about what was going on in their work environment (including their encounters with other teachers) and their thoughts about those observations. Compiling the record involved making personal choices about what to record and how to record it. The log was created to be a private document between the two Grievors. Its purpose was to allow them to share their thoughts and observations and to provide a record of what had gone on should it be needed in the future to refresh their memories. Although Ms. Shen read aloud from the log to a third teacher in one instance, Ms. P-M, no one else was ever allowed access to the contents of the log, nor allowed to read from it directly. The log was akin to a diary that recorded the private thoughts and observations of two people.

[171] When assessing the subject matter of a search, “the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information.” (Marakah, at para. 32). In this case, a private log stored electronically in the cloud through personal Google accounts has the potential to reveal significant personal or biographical information.

The extent to which the searches at issue disproportionately impaired the Grievors’ section 8 rights

[172] I do not propose to discuss the search by the Board of the schools’ computer hard drives, since that search yielded no results.

[173] I make two comments about the proportionality analysis. First, as the Arbitrator erred in understanding the content of s. 8 as a Charter value, the analysis cannot have been reasonable. For that reason alone, the Arbitrator’s Decision should be set aside.

[174] Second, on the facts of this case, after balancing the statutory objectives with the Charter values, the Principal’s actions disproportionately impaired the Grievors’ s. 8 rights guaranteed by the Charter. (Doré, at para. 7). The Arbitrator’s Decision upholding the Principal’s actions therefore similarly impaired the Grievors’ s. 8 rights.

[175] Accepting the Arbitrator’s finding that the Principal was seeking to make sure that all computers were turned off for the day, I agree that this purpose justified his touching the mouse pad of the computer in the classroom. The fact that this touching revealed the existence of the log is the product of Ms. Shen having left an open document on a classroom computer. While unintentional on her part, I agree with the Arbitrator that this conduct diminished her expectation of privacy in the document to the extent that its existence could be revealed if one of the people who was entitled to access the classroom computer (including the Principal) were to do so before the computer automatically closed down.

[176] What I do not find reasonable is the Arbitrator’s finding that the Principal’s scrolling through the log and taking pictures of its contents was in any way justified by the statutory objectives of the Education Act. If the Principal was concerned that he had two teachers who were causing dissention in the school he was perfectly entitled to discipline them for their conduct in doing so. What he was not entitled to do was to scroll through what he knew was a private log to find out his teachers’ private thoughts and observations about what was going on at the school. Maintaining an orderly and co-operative work place does not require accessing the private thoughts of those who are employed in that workplace, even if that workplace is a school. As I stated at the beginning of these reasons, people in our society should be disciplined for their actions, not their thoughts.

[177] For these reasons I find that the Arbitrator’s conclusion that the Principal’s actions in scrolling through the log and taking screen shots of it were justified under the Education Act is unreasonable.

Remedy

[178] This is a judicial review of the Arbitrator’s Decision. I have found that the Arbitrator’s Decision was unreasonable.

[179] I must now consider whether the matter should be remitted back for another arbitration. I would decline to do so for two reasons. Primarily, I am guided by factors such as ensuring expedient decision-making, ensuring access to justice, and promoting the proper administration of the justice system. (Vavilov, at para. 140).

[180] This case is about events that took place in 2014. The arbitration in question was heard over 11 days spanning nearly three years, beginning in September 2016 and concluding in June 2018. By the time the Arbitrator decided the matter, the issue of the Grievors’ discipline had already resolved itself through the ETFO’s two-year sunset clause. Remitting the matter to be heard again would not promote the proper administration of the justice system.

[181] Secondarily, I would decline to remit the matter on the basis that it would serve no useful purpose since the outcome is inevitable. (Vavilov, at para. 142).

[182] The original relief sought included questions of whether the Board could rely on the evidence of the log in disciplining the Grievors, and whether the Grievors’ privacy rights were breached. As my colleagues note, the remaining live controversy is whether the Grievors’ privacy rights were breached.

[183] However, were it necessary to answer the first question, I would answer that the Board cannot rely on that evidence. Apart from the fact that the breach was serious, I also find that the evidence obtained through the breach should have been regarded as irrelevant to the question of whether the Grievors had acted in such a way as to warrant discipline.

[184] In settling the remaining live controversy, I conclude that the Grievors’ privacy rights were breached.

Conclusion

[185] For these reasons I would allow the application, set aside the Arbitrator’s decision, and hold that the Grievors’ privacy rights were breached.

Sachs J.

Released: June 17, 2020

CITATION: Elementary Teachers Federation of Ontario v. York Region District School Board, 2020 ONSC 3685

DIVISIONAL COURT FILE NO.: DC-660-18

DATE: 20200617

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs, O’Bonsawin JJ.

BETWEEN:

Elementary Teachers Federation of Ontario

Applicant

– and –

York Region District School Board

Respondent

REASONS FOR JUDGMENT

O’Bonsawin J.

Kiteley J.

Sachs J. (Dissenting)

Released: June 17, 2020