July 26, 2024
Dolden Case Brief – Charter Applies to Ontario School Boards SCC – July 26, 2024
CHARTER APPLIES TO ONTARIO
SCHOOL BOARD – SUPREME COURT
OF CANADA
By Oneal Banerjee, Dolden Toronto, and
Hannah Sutherns, Dolden Toronto
The Supreme Court of Canada (SCC) recently released its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario on June 21, 2024. The SCC decision dealt with the application of the Charter of Rights and Freedoms (Charter) for the protection of privacy in workplaces, but has potentially far reaching consequences for insurers of municipal and regional school boards, as well as insurers of entities providing other services regulated by government, in Ontario and elsewhere.
Executive Summary and Takeaways
The SCC held that school boards are governmental in nature because they exercise powers conferred on them by the provincial legislature, which the latter would otherwise have to perform themselves. This was determined after a review of the Education Act, its purpose, and the role school boards play in the education system.
In finding that school boards are governmental in nature, the SCC has opened the door to the availability of Charter damages from a host of alleged wrongs by school boards. These include, but are not limited to assaults, pandemic and infectious disease policies, abuse claims, and (allegedly) discriminatory disciplinary actions. This also opens the possibility of using the Charter to challenge the constitutionality of school actions such as searches, suspensions, and team and activity funding decisions, among other things.
At this time, the decision only applies to Ontario public school boards, but the SCC’s reasoning could equally apply to other provinces. Additionally, the SCC’s reasoning, including the examination of the Minister of Education’s “extensive powers” with respect to school boards, could be applied to a host of other entities that, while not run by governments, administer programs or services pursuant to statute, including health services providers.
Case Summary
This case involved the private communications between two teachers, recorded on a personal, password-protected log, which was read and captured by screenshots taken by their school principal. These communications then formed the basis for a school board to issue written reprimands. The teachers’ union claimed that the search violated the teachers’ privacy rights at work and grieved the discipline, but no Charter breach was alleged. A labour arbitrator dismissed the grievance, and found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the boards’ interest in managing the workplace, as set out in Ontario’s Education Act.
On judicial review, the majority of the Divisional Court upheld the reasonableness of the arbitrator’s decision and held that no Charter issues arose from the search because an employee does not have section 8 Charter rights in a workplace environment. The Court of Appeal allowed the appeal and quashed the arbitrator’s decision, conducting a correctness review and held that the search was unreasonable under section 8 of the Charter. The Supreme Court of Canada has agreed.
The SCC dealt with the following three issues:
- Does the Charter apply to public school boards in Ontario?
- What is the appropriate standard of review?
- Should the arbitrator’s award be set aside for failing to conduct an analysis under section 8 of the Charter?
The SCC has determined that the Charter does apply to public school boards in Ontario. In the Eldridge decision, the Court established a two-branch framework for section 32 of the Charter. According to Eldridge, it may be determined that an entity is itself “government” by a) its very nature, or b) by the degree of governmental control exercised over it.
In reviewing the Ontario Education Act, the SCC found that Ontario public school boards are an arm of government in that they “exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves.” Public education is inherently a governmental function and thus, subject to the Charter under Eldridge’s first branch.
The SCC found that the appropriate standard of review in this case, was that of correctness because this is a constitutional question that requires a final and determinate answer by the courts (Vavilov) and it will apply generally and is not dependent on the particular circumstances of the case.
In relying on Vavilov as well as more recent decisions, the SCC outlined that the scope of constitutional rights demands a uniform answer and thus requires a correctness standard of review. In determining that this case requires consistency and a final and determinate answer; the appropriate standard of review is correctness.
Lastly, the SCC held that tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction. Therefore, where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. In this case, the arbitrator failed to conduct an appropriate analysis consistent with section 8 of the Charter. Given that the arbitrator erred in law, her decision was set aside.
While this decision was strictly about Charter application to Ontario public school boards, the reasoning may be the foundation for future decisions about school boards across Canada. Additionally, the reasoning may gradually be expanded to a larger umbrella of entities that deliver programs, services, or education pursuant to provincial or federal statute. The implications of this decision have the potential to be far reaching for insurers of public service entities, like school boards and health care providers.
For further information or if you have any questions about the above article, please contact the authors: Oneal Banerjee, Dolden Toronto, Email: [email protected], and Hannah Sutherns, Dolden Toronto, Email: [email protected].
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