Case Report – Arbitrator Simmons rejects challenge to bag search

On January 29th, Arbitrator Gordon Simmons dismissed motion to exclude evidence obtained in a bag check conducted by a municipal employer.

The employer found stolen goods after examining the contents of two bags that were left near a receiving area of a care home. One of the bags was left open and there was signage nearby indicating that personal belongings should not be left unattended. The Union argued the evidence should be excluded because the employer breached section 8 of the Charter.

In the circumstances, Mr. Simmons held that the grievor had abandoned her expectation of privacy. More significantly, he held that the Charter did not apply to the municipality in its management of the grievor’s employment relationship:

Unlike the many reported decisions the instant case does not involve a matter arising out of a criminal activity where the state is the direct actor in the form of police involvement in carrying out the search and seizure. Instead, the issue at hand involves an employment relationship with a collective agreement. While the courts do not appear tot have addressed the set of circumstances directly it would appear the Charter does not apply.

In making this finding, Mr. Simmons relied the Supreme Court of Canada finding in Dunsmuir, where it held that the termination of public sector employees is generally governed by private law.

Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503 (Nguyen Grievance), [2009], O.L.A.A. No. 37 (Simmons) (QL).

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