Nosy bosses

SCC looks at school searches and admin law review standards. Plus greenwashing changes and all the latest legal news.

Hearsay

Good morning. If you’re opposed to all things carbon tax, you can at least be thankful Canada isn’t taxing flatulence. Denmark is set to become the first country in the world to put a price on livestock methane emissions.

PS: There’s still time to get 15% off the new edition of Prosecuting and Defending Sexual Assault Cases—but only for a few more days. Place your order by June 30 and use code PDSOC3-HD24 at checkout.

— Dylan Gibbs

TODAY'S DOCKET

  • SCC says Charter applies to school boards, and correctness applies to Charter issues

  • Shiny new greenwashing rules

  • Plus, encampments, forever chemicals, no-fly lists, and taxi drivers vs. the gig economy

SCC

Now that’s a Charter school

Teacher in suit and tie uses laptop computer in classroom

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22

It’s official. The Charter applies to Ontario’s public school boards. That’s not too surprising—the SCC has assumed the Charter applies to school boards more than once. Even less surprising? The Court still can’t agree on how to review administrative decisions involving Charter rights.

What happened: Two teachers used a Google Doc to log their workplace complaints. When one of the teachers left her laptop unattended in her classroom, their school principal went through the log and screenshotted its contents. The school board reprimanded the two teachers for the log’s hostile commentary, which the teachers’ union contested with a labour grievance.

What Charter? The labour arbitrator didn’t treat the case as a Charter case. In fairness to her, the union didn’t ask her to—the union argued the school violated the norms of workplace privacy. And that’s how the arbitrator approached the case, holding that the school’s interests outweighed the teachers’ privacy expectations.

  • The arbitrator cited Charter cases about unreasonable search and seizure, but she didn’t expressly recognize that the teachers’ Charter rights were at stake.

Justice O’Bonsawin upheld the arbitrator… back in 2020, before her SCC appointment. Writing for the majority at Ontario’s Divisional Court, she said the arbitrator’s decision was reasonable.

Unlike the arbitrator, who didn’t even mention the Charter, Justice O’Bonsawin said the Charter wasn’t relevant:

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.

2020 ONSC 3685 at para 103

It was a different story at the SCC. The Court unanimously agreed the Charter applies to Ontario’s public school boards. Justice Rowe said the school boards are effectively an “arm of government”. So, the Charter applies to everything they do—including the ad hoc detective work of a snooping principal.

  • And that meant the teachers had a right to be free from unreasonable search and seizure. The arbitrator’s silence about the Charter gave enough reason to quash her decision.

The Court didn’t rule on the principal’s search tactics because it wasn’t necessary. But Justice Rowe made it clear that Charter rights work differently in the workplace. His general comments should help any employer subject to the Charter:

[C]ourts should be cautious in adapting the [search and seizure] framework from the criminal law context to the employment context. [In the employment context,] the employer’s operational realities, policies and procedures can be relevant in determining the reasonableness of an employee’s expectation of privacy.

Correcting Charter issues

The main star of the appeal was the standard of review. This was an admin law case—a judicial review of the arbitrator’s decision. And because the arbitrator should have considered the Charter, Justice Rowe reviewed her decision for correctness. He said constitutional rights demand a uniform interpretation, which the courts are uniquely positioned to offer.

  • Justices Karakatsanis and Martin disagreed, writing a separate concurrence to call for deference.

Here’s how Justice Rowe described it:

The issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis — is a “constitutional questio[n]” that requires “a final and determinate answer from the courts”.

You might be thinking: “Didn’t the Court double down on reasonableness review just a few months ago?” And you’re not wrong. The Court recently applied the Doré framework, saying that courts need to defer to “discretionary decisions that engage Charter protections”.

Justice Rowe didn’t reconcile the two cases, so you’ll need to figure out the difference between “discretionary decisions that engage Charter protections” and other issues of constitutionality on your own.

Meme of cartoon character sweating the choice between two red buttons. One button says reasonableness, the other says correctness. The caption below the cartoon character says "courts reviewing constitutional questions"

Editor’s take: The way I see it, three types of administrative decisions involve constitutional questions:

  1. If a decision maker decides whether legislation is unconstitutional, the standard of review is correctness.

  2. The same goes for decisions about whether another state actor (like a school principal) violated the Charter.

  3. Doré’s deferential approach applies only when the decision maker’s own decision allegedly violates the Charter. There, the decision maker gets leeway to balance the Charter impact against their statutory mandate.

You win some, you lose some: Yes, seven of Justice O’Bonsawin’s current colleagues said she got this one wrong. But she’s still batting 500. In 2020, the SCC overturned the Ontario Court of Appeal to restore her trial decision in Callow.

HEARSAY ROUNDUP

Canadiana

🧪 BC is waging war over forever chemicals. The province is the first Canadian jurisdiction to sue the makers of per- and poly-fluoroalkyl substances (PFAS), which are great for non-stick coatings but not so great at decomposing. The province alleges that PFAS have caused widespread drinking water contamination. If that sounds familiar, it might be because the same claim recently led to a US settlement worth more than $10 billion.

🏕️ Another university encampment is headed to court. Waterloo is the latest school trying to shut down the protests on its campus. And it means business. The university is the first to sue pro-Palestinian protestors for damages instead of just asking them to clear out.

Screenshot of Waterloo's court application, which claims damages for direct costs, operational disruptions, reputational damage, legal and administrative costs, and diminished property values.

🚖 It’s the year of taxi driver vindication. Drivers scored another Uber-related class action victory—this time in Quebec. Justice Conte held that Quebec carried out a disguised expropriation by removing taxi permits from the market after Uber came to town. And that means the province owes the taxi drivers $143 million, plus interest.

  • Unfortunately for cabbies in the rest of the country, the decision hinges on Quebec’s civil law. It’s easier to prove a disguised expropriation claim than a constructive expropriation claim (its common law equivalent).

✈️ Travel watch lists are constitutional, according to the Federal Court of Appeal:

The deleterious effects are relatively few, ranging from the potential of enhanced screening to a flying ban—measures that might be only temporary and brief—and pale next to the need to prevent domestic and international terrorism, and the destruction, butchery and carnage wrought by it.

Singh Brar v. Canada, 2024 FCA 114 at para 22

COMPETITION

New greenwashing rules make a splash

Hands washing clothing in a bucket filled with green water

The federal government’s latest amendments to the Competition Act received Royal Assent last week—ushering in the most significant competition law reform Canada has seen in a long while. Bill C-59’s changes include tighter merger controls, revised marketing rules, and greater potential for consumer lawsuits alleging anti-competitive behaviour.

But everyone is most fired up about greenwashing. According to the newly revised Competition Act:

  • Any company that says its product benefits the environment must be able to show that the claim is based on an “adequate and proper test”.

  • And any company that says its business benefits the environment must be able to show that the claim is substantiated by an “internationally recognized methodology”.

Many are concerned about how that fuzzy language will be enforced. The response from oil and gas companies and industry groups was to wipe their marketing content from the internet. Some replaced the content with disclaimers, warning consumers not to rely on past representations.

Alberta and Saskatchewan see the changes as a targeted attack on the oil and gas industry. So they’re teaming up for another legal battle with the feds:

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

If someone sent you this email, subscribe here.

SHARE HEARSAY

Don’t keep us a secret. Get your friends to sign up and you’ll be rewarded. You can find your custom referral link in the email version of Hearsay.

Referral rewards include coffee, sticker pack, t-shirt, book, crewneck, and a $500 prepaid credit card