The recent Supreme Court of Canada decision, York Region District School Board v Elementary Teachers Federation of Ontario (“York”), highlights the ongoing importance of Charter rights and values in regulatory settings.

The Charter protects a person’s fundamental freedoms against unreasonable state action. Because regulators are administrative decision-makers, they are required to exercise their statutory discretion in accordance with Charter protections. As such, in discipline settings, professionals can raise Charter arguments such as freedom of expression and freedom from unreasonable search and seizure as defences.

More recently, courts are emphasizing that regulators explicitly evaluate and refer to both Charter rights and values in disciplinary proceedings.

What are Charter Rights + Values?

Proving a breach of a Charter right requires evidence to support the application of well-known legal tests. However, more recently the Supreme Court of Canada has introduced the concept of Charter values, which must also be considered and respected by adjudicators.

Even if a formal breach of Charter rights cannot be proven or is not directly raised, decision makers should still consider Charter values, which involve consideration of the general themes and ideas behind a Charter right.

What does this look like in practice? The Supreme Court of Canada recently applied these principles to a disciplinary proceeding involving a teacher to provide more guidance.

Most Recent Application of These Principles

In York two teachers had private communications on a personal, password protected log on a computer. The school principal entered a classroom and noticed the computer left on and unlocked. The principal read the communications and took pictures of it. The communications were used to initiate discipline proceedings which resulted in written reprimands. The teachers’ union filed a grievance for the privacy breach, without specifically alleging a Charter breach.

The arbitrator’s reasons evaluated whether the teachers had a reasonable expectation of privacy for their private logs. The arbitrator was not asked to consider if section 8 of the Charter (freedom from unreasonable search and seizure) had been infringed. The arbitrator concluded that the principal’s “happenstance” discovery and seizure of the computer did not breach privacy because the laptop was left open, and teachers have a diminished privacy interest as employees.

The arbitrator noted that the log did not contain personal or intimate information and did not “touch on their biographical core.” While the arbitrator did not specifically address the Charter, the reasons indicate an evaluation of the themes of a Charter right, particularly by referring to the “biographical core,” which is language frequently utilized when considering a breach of section 8.

However, the Supreme Court of Canada found that this analysis was not a sufficient consideration of the Charter. A labour arbitrator is empowered to consider and decide Charter issues. Once the arbitrator 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.” (para 68); the arbitrator was required to both acknowledge and analyze that right. 

This case illustrates how a court might respond to a mention of Charter values by demanding that a tribunal go further, and instead substantively assess the Charter right in question – even if that right was not flagged by the parties themselves. This case introduces a level of uncertainty for tribunals as to when they can, or should, formally assess Charter rights or simply apply Charter values. Courts may react differently where a Charter right or value is central to the decision to discipline, as was the case here.

Rationale

The Supreme Court of Canada has provided a basis for holding decision-makers to a high standard when the Charter is potentially involved in disciplinary action. It is more efficient, practical, and constitutional to allow Canadians to assert Charter rights in the most accessible forum available to them, which will include a professional disciplinary setting.

How can regulators ensure Charter rights and values are considered and properly evidenced in a disciplinary setting?

Two Main Takeaways for Regulators

1. Familiarize yourself with the most common Charter rights that may arise in professional settings so that you may identify potential rights arising in certain discipline proceedings, for example:
   1. Section 2(b) – Freedom of Expression (think discourse and opinion)
   2. Section 8 – Search and Seizure (think breach of privacy)
2. Even if a Charter right is not specifically alleged, regulators should meaningfully address the right and evaluate it in the reasons.
   1. Reasons should show that the decision maker squarely addressed the Charter to reflect the impact the decision could have on the individual’s rights.
   2. This is particularly important where a Charter right or value is foundational to the ultimate decision to discipline. For example, in this case the breach of the teacher’s privacy on her computer was crucial to the discipline proceedings.

Navigating the complexities of Charter rights and regulatory law can be challenging. Consulting with a lawyer experienced in these areas ensures you're equipped with the latest legal guidance and strategies to protect your decisions. Contact Derek Cranna, Vita Wensel or any member of Field Law’s Professional Regulatory Group for tailored advice on how to integrate Charter considerations into your disciplinary processes effectively.

Links to Decision: York Region District School Board v Elementary Teachers Federation of Ontario, 2024 SCC 22