I was up at the crack of dawn today to burn down to Cape May, New Jersey for the DeSatnick Foundation Paddle Around the Cape Race this Sunday. (It’s still not to late to donate.) I listened to the Supreme Court of Canada’s York Region District School Board decision between Allentown PA and the NJ border. It’s significant, but thankfully only in a technical sense – not changing the balance between employee privacy and management rights. I’ll explain.
Of course, this is the case about a series of “searches” conducted by a school principal in an attempt to manage a workplace called “toxic” by labour arbitrator Gail Misra, who held the principal’s searches were justified. I put “searches” in quotes because the term is a technical one in the section 8 Charter jurisprudence, which Arbitrator Misra referred to but didn’t apply very well. Any criminal lawyer or judge reading her decision would quickly pick out Arbitrator Mirsa’s jurisprudential flaws. These flaws are what ultimately led the majority of the Supreme Court of Canada to quash her decision.
Along the way the Court unanimously (and finally?) held that the Charter applies to school boards (Ontario ones, at least). It said, “Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government and, thus, they are subject to the Charter under Eldridge’s first branch.”
Given Charter application, the majority held that Arbitrator Misra erred by balancing interests under the privacy test long employed by arbitrators and endorsed by the Supreme Court of Canada in Irving Pulp and Paper – a derivative of the famous KVP test. She was bound to apply the section 8 Charter framework, the majority said, and do so correctly.
So Charter-bound employers, like law enforcement, must not conduct unreasonable searches. The test is two part. There must be a “search,” which will only be so if there is a “reasonable expectation of privacy.” And then the search must be “reasonable.” This is a highly contextual test that encompasses a balancing of interests, and a labour arbitrators’ balancing will be subject to review on the correctness standard.
Non Charter-bound employers – like Irving – will continue to live under the balancing of interest test and KVP. As to whether that will result in different outcomes, the majority suggests it may not: “The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis.”
I’ve said here before that privacy law should be unified such that the concepts that bear upon section 8 analysis are used by labour arbitrators. This judgement grants my very wish. It should lend predictability to otherwise unpredictable balancing by labour arbitrators, as should correctness review. And although non Charter-bound employers will have a notionally different framework, I expect that arbitrators will strive for unification.
And there is nothing in the judgement that alters the management-employee balance or elevates workplace privacy rights. To the contrary, it erases a Court of Appeal for Ontario judgement that one could argue was too insensitive to the principal’s interest in dealing with a serious workplace problem.
This very short and informal post is made (that is plainly influenced by my one day vacation) is made strictly in my personal capacity.