Constraints, Correctness and the Charter: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22

I am very glad that I did not have to decide the tricky administrative law issues presented by York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22. This is an important decision about the application of the Charter of Rights and Freedoms to public school boards and standard of review of administrative decisions that infringe Charter rights. I will address the former point in a subsequent post (where I will also consider another recent Supreme Court of Canada decision, Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10). In this post, I will address the latter point, which attracted a majority and minority view.

In my view, the decision in York Teachers confirms a distinction between the scope and application of Charter rights for standard of review purposes and continues to develop the distinction between Charter rights and Charter values as limitations on the freedom of action of administrative decision-makers. The discussion of the latter point in the competing judgments invites reflection on the relationship between correctness review and the “constraints” that bear upon an administrative decision-maker subject to reasonableness review.

The underlying facts arose in a tense school workplace in Toronto. Two teachers created and edited a private log recording their concerns about the toxic environment in the school. The existence of this log became notorious within the school, so much so that the principal attempted unsuccessfully to access it through an IT search.

Then, one day the principal found himself alone in the classroom of one of the teachers. The teacher’s computer had been left open and, so, the principal was able to access the log. He took screenshots which, ultimately, formed the basis of reprimands to the two teachers. Subsequently, the Board seized this laptop and the other teacher’s laptop and searched them for the log, albeit fruitlessly. The teachers’ union grieved the reprimands under the collective agreement on the basis that the Board had violated their reasonable expectation of privacy in the log.

The arbitrator found in favour of the Board. She did not conduct a Charter analysis. Section 8 of the Charter, which protects individuals against unreasonable searches and seizures, and which has the ‘reasonable expectation of privacy’ as its lynchpin, was not raised before the arbitrator, but she nonetheless applied principles and jurisprudence drawn from the s. 8 context. She found that the teachers had a reasonable expectation of privacy but that it was diminished in the circumstances. Further, she analyzed three potential breaches of s. 8 — the initial IT search, the access to the log on the open computer and the ‘forensic’ search of the laptops — and found that they did not constitute unreasonable searches.

The courts below were divided on the applicable analytical framework. At first instance, the majority and dissenting judge at the Divisional Court applied reasonableness review. But at the Court of Appeal, Huscroft JA held that s. 8 was engaged and that the arbitrator’s application of the legal principles of s. 8 was subject to correctness review (although deference would be given to the arbitrator on her findings of fact).

The Supreme Court also split on standard of review on the s. 8 issue (they all agreed that the application of the Charter to school boards had to be determined correctly: see paras. 62, 108). The majority applied correctness, the minority reasonableness. As if to demonstrate the closeness of the question, both majority and minority cited my academic work in support of their respective positions.

Correctness Review: Scope and Application of s. 8

Rowe J wrote for the majority. He applied correctness review because “the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her” (at para. 63). This failure brought the case within Vavilov’s constitutional question category, as questions about “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis” must receive a uniform answer from the courts (at para. 63). It is a matter of the “delimitation of the scope of constitutional guarantees that Canadians enjoy”, which cannot be permitted to vary from case to case (at para. 64). This was a narrow approach, applicable in this case because the “scope” of a constitutional right was at issue (at para. 66) given that the arbitrator had not explicitly addressed s. 8:

Ontario public school teachers are protected from unreasonable search and seizure in their place of employment under s. 8 of the Charter. Despite their apparent functional resemblance, a right to a reasonable expectation of privacy that is entrenched in the Constitution is distinct in source and nature from an arbitral right to privacy. For one, state actors cannot disavow their constitutional obligations no matter the terms of the collective agreement. At its core, the arbitrator’s reasons disclosed a fundamental error because she had the wrong right in mind. The arbitrator ought to have applied the Charter, but failed to do so. Once she failed to appreciate the constitutional dimension of the searches conducted by the principal, there was no intelligible way for her to continue the analysis while fully engaging with the gravity of the alleged violations of the Charter right at issue. Courts cannot dilute the sacrosanct nature of Charter rights by accepting a different substitute. Nor can courts supplant the reasons proffered by the decision-maker and read the reasons as if it applied a Charter right when in fact it applied a different right (at para. 68).

The narrowness of this approach can be appreciated by contrasting Rowe J’s approach with that of the Ontario Court of Appeal.

There, as noted above, Huscroft JA found that “whether the grievors had a reasonable expectation of privacy is a question of law that is subject to review for correctness” whilst affording deference to the arbitrator’s findings of fact (2022 ONCA 476, at para. 37). In defence of this broader approach, one might note that in recent cases involving fact- and context-sensitive determinations of challenges to the constitutionality of legislation — mixed questions of fact and law — the Supreme Court has applied exactly the standard described by Huscroft JA (see especially Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at paras. 94-97).

But Rowe J declined to endorse this approach (at para. 67). And it should be noted that the Casinos case involved a challenge to legislation, unlike York Teachers, which involved a challenge to administrative action. Correctness review encompasses mixed questions of law and fact in cases like Casinos but it does not stretch so far in cases like York Teachers.

In sum, Rowe J does not seem to have required correctness review for all s. 8 cases, just those cases in which the “scope” of s. 8 is in issue. His conclusion was that the arbitrator’s failure to apply the proper legal framework was a “fatal” error justifying the quashing of her decision (at paras. 69, 95). The majority did not, therefore, need to take a position on whether reasonableness review applies to the application of a Charter right. Accordingly, I do not think York Teachers can be read as changing the standard of review of individualized decisions applying the Charter in specific statutory settings (settled since Doré v. Barreau du Québec, 2012 SCC 12).

His concurring colleagues Karakatsanis and Martin JJ applied the reasonableness standard to the arbitrator’s decision, essentially because the issue before the arbitrator involved “an application and assessment [of privacy rights] which heavily depended on the specific factual and statutory context” (at para. 112). As they noted, s. 8 is heavily context-sensitive and applies differently in different settings (at para. 115). The fact that the arbitrator did not specifically reference s. 8 could not justify quashing her decision (at para. 118), as she had meaningfully “engaged with the concepts of reasonable expectation of privacy, diminished reasonable expectation of privacy, plain view, and biographical core” all central to the s. 8 jurisprudence to which, moreover, she had been referred by the parties (at para. 117). This meant that this was a case of application of s. 8 rather than determination of its scope (at para. 122) and, accordingly, it was not necessary (and would, indeed, be inappropriate) for the courts to provide a final and determinate answer applying the correctness standard:

Determining the engagement and scope of Charter rights will sometimes entail a highly context specific exercise, which this case exemplifies. Not only will a search in an employment setting differ from a search executed by police officers in the course of a criminal investigation, the questions the arbitrator had to answer were heavily interconnected and dependent on the particular factual and statutory context (see I.F., Attorney General of Canada, at para. 20). For instance, did the principal interfere with the Grievors’ reasonable expectation of privacy such that a search within the meaning of s. 8 occurred? Was the search reasonable in that it was authorized by law and conducted reasonably? In answering these questions, the arbitrator had to consider workplace realities in an educational setting, the interpretation of the Education Act, R.S.O. 1990, c. E.2, and the authority it confers to conduct workplace searches in schools, and the reasonableness of the principal’s exercise of authority at a particular place and time. Deference should be afforded to the arbitrator’s understanding of this critical, case-specific context, one in which there is no pressing need for “judicially imposed uniformity” (see P. Daly, “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89, at pp. 106-7) (at paras. 122-123).

Here, “the arbitrator’s decision and interpretive exercise were highly fact-specific, depended on a particular statutory context, and concerned the application of legal principles to the particular grievance presented” (at para. 127).

The standard of review debate in this case therefore involved a very fine distinction between scope and application. I have observed in previous scholarship (the “Unresolved Issues” piece cited above) that the Supreme Court has regularly applied the correctness standard to determinations of the scope of Charter rights. I readily accept that the distinction is liable to be somewhat unstable: the difference of opinion between majority and minority is evidence of that; the different views turned primarily on how much can be ‘read in’ to the arbitrator’s reasons based on background context (compare paras. 68, 94 with para. 117) and on competing characterizations of whether the arbitrator’s position depended on her view of the scope or application of s. 8. Instability is particularly evident in respect of s. 8, because the scope of the right is determined in large part by the context-sensitive concept of a ‘reasonable expectation of privacy’, meaning that scope and application bleed one into the other. But as mentioned above, I am not persuaded that the majority’s approach here effects or portends any change in the approach to judicial review of administrative decisions that allegedly violate the Charter.

Reasonableness Review, Legal Constraints and s. 8

This leads me to the majority and minority approaches to the implications of s. 8 for administrative decision-making. It is useful to begin with the minority’s proposition that the arbitrator’s decision “is not reasonable in light of the constraints bearing on it” (at para. 132). The particular flaw, for Karakatsanis and Martin JJ, was that the arbitrator focused too much attention on the content of the log accessed by the principal (at paras. 137-141): the arbitrator neglected the “principle of content neutrality” (at para. 138); the arbitrator failed to appreciate how the “s. 8 jurisprudence makes clear…[that] what mattered was the potential for the search to reveal information touching on the Grievors’ biographical core” (at para. 139); and the arbitrator’s analysis was “not reasonably reflective of privacy’s normative aspirations” as reflected in the jurisprudence (at para. 140). As such, the minority’s position was that the arbitrator’s decision was untenable in view of the applicable legal constraints, principally Supreme Court jurisprudence on s. 8.

Rowe J’s approach for the majority was strikingly similar. Just as his concurring colleagues do, Rowe J used the language of “constraint”:

Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. Administrative tribunals are empowered — and, for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights apply … the Charter and relevant s. 8 jurisprudence were legal constraints that applied to the arbitrator’s decision (Vavilov, at para. 101). In other words, the arbitrator was required to decide the grievance consistent with the requirements of s. 8 (at para. 91, my emphasis; see also, at para. 4).

As noted above, Rowe J did not go on to perform a full-fledged s. 8 analysis. Had he done so, however, it is quite likely that he would have ended up in the same place as his concurring colleagues, concluding that the arbitrator’s decision was unlawful for failure to comply with relevant legal constraints, namely s. 8 and associated jurisprudence. (To coin a phrase, this might have been “disguised reasonableness review”.)

Charter Rights and Charter Values

There is one final point to make here about the distinction between Charter rights and Charter values. Pace critics such as Dr Sirota and Professor Mancini, York Teachers does not contradict the recent decision in CSFTNO. In understanding these two decisions, it is important to appreciate the rights/values distinction. I put the point as follows in a soon-to-be-posted draft paper defending CSFNTO:

Charter values and Charter rights have different functions, with values operating essentially as relevant considerations to be grappled with by an administrative decision-maker and rights imposing harder legal constraints on decision-makers…Constitutional text (rights) binds by imposing hard constraints on decision-makers. Constitutional purposes (values) simply require certain matters to be taken into account by administrative decision-makers (and it is open in principle to the administrative decision-makers to formulate their own views on these matters).

Rowe J’s approach here, in my view, is perfectly consistent with the rights/values distinction and, indeed, strengthens it by framing rights as constraints that administrative decision-makers must comply with (see above and at para. 88). Similarly, the minority judges treat s. 8 as a hard constraint on the arbitrator. Simply put, on both the majority and minority approach, it was not enough for the arbitrator to conduct an s. 8-lite analysis, rather she had to demonstrate compliance with the constraints of s. 8.

What is the relevance (if any) of Charter values in cases where Charter rights are engaged? Charter rights impose additional justificatory burdens on decision-makers. Where a Charter right is engaged, as in York Teachers, there is no need for a decision-maker to reason in terms of Charter values because writing reasons that satisfy the exigencies of Charter rights will also by definition discharge the administrative decision-maker’s procedural duty to take Charter values into account: compliance with Charter values is an inherent part of compliance with Charter rights (see Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425); decision-makers can, of course, reason in terms of values rather than in terms of rights and, as long as their decision is consistent with the infringed Charter right there will be no reason for judicial intervention. This may play out slightly differently in cases where the decision-maker does not give reasons (as with a by-law): in such instances, the decision must comply with a Charter right and the record must reflect consideration of Charter values. But where reasons are given and a Charter right is engaged, the decision-maker’s focus must be on demonstrating through its reasons the compliance of the decision with the Charter.

Where no Charter right is engaged, as in CSFTNO, the duty to take account of Charter values applies with full force but there is — evidently — no duty to comply with the Charter right.

Conclusion

In summary, then, this is a very interesting decision, most important for its holding on the applicability of the Charter to public school boards (to which I will return) but also significant in developing the Charter rights/values distinction. As for the standard of review, the case is a slightly unusual one, as the decision-maker did not overtly consider the relevant Charter right, and I am not persuaded that it will have a lasting impact outside circumstances where a decision-maker simply has not considered a right at all in circumstances where it ought to have.

This content has been updated on July 11, 2024 at 15:46.