The Supreme Court of Canada is to consider a case with the potential to make teachers across the country tremble: do their bosses have the right to read their private communications and use them against them?
The nation’s highest court announced Thursday that it has agreed to hear a case between two Ontario teachers and their school board. The question of employees’ right to privacy when they are at work is at the heart of the debate.
The facts can be summed up as follows: private messages from these two teachers recorded on a personal logbook (protected by a password) were read by the director of their school, who took screenshots using of a camera. Their school board then used it to discipline them.
The teachers’ union filed a grievance against the reprimand on file, arguing that the school board violated their right to privacy by reviewing private digital information without reasonable cause and using it as the basis of its investigation.
The progress of the case at the judicial level shows that the law does not seem so clear: an arbitrator first dismissed the union’s grievance, his decision was upheld by a judge, then it was quashed by the Court of Justice. call from Ontario.
The latter ruled that the school board had violated the teachers’ right to privacy.
The two employees had created a diary to record their concerns about another teacher, as they feared its impact on the evaluation of their own work. Nothing was saved on the school computers: the information was stored in the “cloud” and was only accessible with a personal Gmail account – not a school account – all protected by a password.
Fearing the existence of such a diary, other teachers had complained of a “toxic” work environment, which led the school principal to investigate. He asserted his obligation to look after the well-being of his employees.
A search of the school’s online files turned up nothing, nor did a review of school computers. The principal then went to the classroom of one of the two teachers after she left at the end of the day. He touched the touchpad of the laptop that was there, which displayed the logbook on the screen: the teacher had accidentally left it open.
For the Ontario Court of Appeal, the two teachers had the right to expect respect for their privacy and their personal correspondence. The director’s search was unreasonable, she wrote in her decision, in 2022: it was “as if he had opened their diary”. The man had therefore violated their constitutional right to be protected against unreasonable searches, which is provided for in section 8 of the Canadian Charter of Rights and Freedoms, she had judged.
The school board involved in the case, disagreeing with this conclusion, asked the Supreme Court of Canada to hear its arguments. The outcome of the case could therefore be a game-changer on what can — and should — remain private when a Canadian worker is at work.