The employees had every reason to expect that their conversation was and would remain private: court
In a recent case, the Ontario Court of Appeal ruled that the privacy rights of two teachers had been breached when the contents of their private conversation found on a work computer were accessed without their permission and used as evidence to discipline them.
In Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, the grievors, Rai and Shen, were employed to teach at Mount Joy Public School in the York Region. They were included in a group of four teachers assigned to teach Grade 2 in the 2014-15 school year.
Shortly after the school year began, problems arose amongst the group members. The grievors felt that one of their co-teacher was receiving preferential treatment from the school principal. They were concerned about how this might impact their own performance reviews. Shen contacted the appellant, Elementary Teachers Federation of Ontario, for advice and was told to keep notes about her concerns.
Following the appellant’s advice, Shen started a log using her personal Gmail account and authorized Rai to have access to the log. Although the log could be accessed using her work computer, it was stored in her Google cloud account.
The school principal eventually learned about the log. One day, he decided to enter Shen’s classroom and found her work computer. A document called “log google docs” opened on the screen. Upon realizing that this was the log he heard about, he used his cellphone to take screenshots of the entire log and immediately informed the respondent, York Region District School Board.
The school principal confiscated the grievors’ work computers, printed the screenshots, and forwarded the material to the respondent. The respondent searched the computers but found nothing. It then issued letters of discipline to the grievors and placed written reprimands on their files for three years. The appellant grieved the discipline.
The appellant sought to have the reprimands rescinded and asked damages for breach of the grievors’ privacy rights. The grievance proceeded to arbitration and the parties agreed to proceed solely on the claim that the grievors’ right to privacy had been breached.
The arbitrator found that the grievors’ reasonable expectation of privacy had not been breached by the respondent's actions. The Ontario Divisional Court upheld the arbitrator's decision. The appellant appealed.
In its decision, the Court of Appeal allowed the appeal and held that contrary to the arbitrator’s finding, the grievors had reasonable expectation of privacy.
According to the court, the focus of the appeal concerned the principal’s actions in reading the grievors’ log, taking screenshots of the entries, and sending the screenshots to the respondent. Based on the evidence, the arbitrator “erred in several respects.”
The court noted that the subject matter of the search was the grievors’ personal messages to one another – particularly, their electronic conversation that was stored not in Shen’s work computer but in her Google cloud account.
“There can be no doubt that the grievors had a direct interest in the information contained in their log: each contributed to the personal conversation that the respondent used to discipline them,” Justice Grant Huscroft wrote. “That the grievors had a subjective expectation of privacy in the contents of their personal conversation is also clear.”
The court determined that Shen’s decision to use her work computer to access the log and leaving inadvertently the log open had neither diminished nor precluded their expectation of privacy.
“The grievors did all that they could to protect the privacy of their communications,” Justice Huscroft wrote. “Their log was at all times password protected and reserved to their use, and thus, they had every reason to expect that their conversation was, and would remain, private.”
Moreover, the court noted that the log was an electronic record of their private conversation, and nowadays, many private conversations occur electronically rather than in person or by telephone. Hence, personal information being revealed in such conversations is considerably possible.
The arbitrator’s finding that the log was left in plain sight and the grievors had only a diminished expectation of privacy as a result “skewed her analysis of the reasonableness of the search,” the court concluded.