Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. 🎒 The SCC will release its judgment in York Region District School Board v. Elementary Teachers’ Federation of Ontario on Friday, June 21, 2024. At issue is whether public school teachers are protected from unreasonable search and seizure by s. 8 of the Charter if the search and seizure is performed in the workplace by their employers.
  2. 🤫 On June 7, the SCC released its decision in Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21. In a unanimous decision, the SCC allowed the appeal in part, finding that there was no “secret trial” held in this case and that the courts below should never have described it that way.
  3. 🔮 87% of players correctly predicted the outcome.
  4. This week’s decision will mark the end of Season 10 of Fantasy Courts and we’ll send a recap next week. We take a break for the summer as the Court releases fewer decisions. Next season will start in September.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Employee’s Right to Privacy in the Workplace

Appeal by leave from Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476

SCC factums and webcast

What Happened?

Background: A group of Grade 2 teachers was dissatisfied with one of their colleagues and felt that this teacher was receiving preferential treatment from the school principal. Their union advised them to keep notes about their concerns. One of the teachers started a log using her personal Google account and allowed another teacher to view and contribute to the log. She left her work laptop logged into her Google account one day after she had left work. The principal discovered it and used his cellphone to take screenshots of the entire log, which had about 100 entries. The information was forwarded to the Superintendent and Board. The Board issued letters of discipline to the teachers for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. The letters referred to the fact that the teachers had used Board technology to access and maintain a log during Board time..

Arbitration: The union grieved the discipline. The arbitrator found that because the teacher left the log open on a laptop, which belonged to the Board, she had a diminished expectation of privacy. The arbitrator also found the searches did not violate the teacher’s privacy.

Divisional Court: A majority (which included now SCC Justice O’Bonsawin) concluded that the arbitrator’s decision was reasonable. Justice O’Bonsawin wrote that 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.” Justice Sachs in dissent held that the Charter was engaged because the Board is a state actor and the grievors have s. 8 rights in the workplace.

Court of Appeal: The Court of Appeal allowed the appeal and quashed the award of the arbitrator. It ruled that public school teachers are protected from unreasonable search and seizure by s. 8 of the Charter if the search and seizure is performed in the workplace by their employers. The nature of the protection afforded differs where a search is conducted by employers rather than the police, but the essential purpose of the right remains the same: section 8 of the Charter protects the reasonable expectation of privacy.

What Was Argued at the SCC?

Appellant: The appellant Board argued that the Court of Appeal wrongly applied a correctness standard and failed to appreciate the workplace context that the arbitrator understood and carefully considered. It further argued that the Charter should not have been applied at all, and even if it did the teacher’s s. 8 rights were not breached. A school board and principal need to have the ability to manage their workplace and deal with a toxic environment.

Respondent: The respondent union argued that the right to privacy extends beyond criminal law. Workers employed by government actors are no less entitled to privacy protections against their employers than suspected criminals are entitled to privacy protections against the police. The right against unreasonable search and seizure applies wherever the state acts, including in the workplace.

What Else Should You Know Before Making a Prediction?

The Court was grappling with the source of the privacy rights here and how these issues are to be decided in the arbitral context. There were also a number of questions about the standard of review because the focus on s. 8 of the Charter only happened at the judicial review stage. Justice Rowe was clear that there cannot be Charter-free zones, which suggests to me he’s inclined to dismiss the appeal, but there are a number of ways for the other judges to approach this case. I’m leaning towards appeal dismissed with the SCC cleaning up some of the statements made by the Court of Appeal, but otherwise finding the Charter applies.

Previous Prediction: Don’t Call it a Secret Trial

On June 7, 2024, the SCC released its decision in Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21

Held (9:0): Appeal allowed in part and remitted to Court of Appeal so that it can make public a redacted version of the trial judgment.

Key Points:

  • Under the open court principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content. One exception is informer privilege, which is a rule that protects the identity of those who give information related to criminal matters in confidence.
  • When a court proceeds in camera, it is important that it rigorously apply the guiding rule from Named Person v. Vancouver Sun, 2007 SCC 43, requiring it to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle.
  • In the present case there was no “secret trial”. The criminal proceeding against the person began and moved forward publicly until they filed a motion for a stay of proceedings, which was then heard in camera. The Court of Appeal should not have used the expression “secret trial”, which could have suggested that the person had been convicted following a secret criminal proceeding.
  • The very concept of “secret trial” does not exist in Canada.

Predictions: 87% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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