Posts tagged court of appeal

Court of Appeal upholds Hussack decision against Chilliwack school board

The BC Court of Appeal released its decision last week in the Hussack case (previously discussed here), largely dismissing the claims in appeal made by School District #33Here is the coverage in the Vancouver Sun and here (BC Injury Law) and here (Injury Lawyers Blog) are commentaries on the outcome. 

Hussack deals with a high school student, Devon, who was whacked in the face with a stick while playing a game of field hockey at school.  The boy subsequently developed considerable challenges that leave Devon unable to complete many tasks on his own.  The thrust of the appeal by SD #33 involved questioning whether the teacher’s failure to gradually prepare Devon for the sport exposed him to harm or, in other words, whether the absence of the preparation made the type of harm Devon eventually suffered reasonably foreseeable, such that had the teacher been exercising the appropriate care over him Devon never would have been encouraged to play.  Here is what the Court of Appeal had to say to that:

Here, not only was it reasonably foreseeable that a student might be struck on the head or face with a field hockey stick, Mr. MacPhee did foresee that risk, as evidenced by his “no high sticking” rule.  It was also reasonably foreseeable that a student would sustain an injury to his or her head if this occurred.  The trial judge, having found the somatoform disorder was consequential to the post-concussion syndrome, properly concluded based on the evidence and authorities that the respondent had established the appellant’s negligence was the proximate cause of Devon’s injury.

The only place in the appeal that SD #33 got some relief was in the amount of damages awarded to Devon, which was reduced slightly.  Otherwise, much of the decision affirms the views of the trial judge.

This case follows a string of recent decisions discussing teachers’ torts – that is, how a lapse by a teacher, particularly in gym class, can lead to a serious injury to a student and a major liability for a school board.  The idea is that while no nobody is perfect, and hindsight is always 20/20, teachers should be expected to take reasonable steps to avoid certain bad things from happening to their students.  And if those things happen, the school board should have to pay for it.

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UBC Celebrates Legal Victory in Prolonged Discrimination Claim

The storm of controversy and commentary surrounding Cynthia Maughan, the UBC student who alleged discrimination by the university and several professors on the basis of her Christian beliefs, reached what many think is an ultimate conclusion a couple of weeks ago.  The BC Court of Appeal for British Columbia released its decision in Maughan v. University of British Columbia et al, which capped something of a litigation nightmare for UBC. The court’s decision on CanLII is here.

Here’s a brief summary of the facts. Maughan was an Anglican Christian pursuing a Masters of Arts degree in English at UBC, during which time she alleged several incidents of discrimination occurred:

  • An email was sent to the English graduate student listserv, where a student jokingly suggested Christians should be stoned; and
  • She experienced what she said amounted to discrimination in a seminar course, where she asserted an anti-religious bias motivated the course’s professor to treat her poorly.

The professor had agreed to schedule a course event on a Sunday, refused to grant Maughan an extension on her final paper, provided negative comments on that paper, and awarded her an unsatisfactory grade, all of which Maughan attributed to the professor’s opposition to her religious beliefs. 

Maughan, disturbed by her experience with the professor and disappointed with her grade, pursued redress through the avenues available within UBC, including an appeal to the Senate Committee, which ultimately ruled against her. She subsequently commenced an action against the professor, UBC and other professors who she alleged facilitated or ignored the discrimination she experienced. 

The Court of Appeal emphatically rejected Maughan’s claims. The court held that Maughan presented no evidence to demonstrate that her treatment by the professors was based on her religion. Similarly, Maughan failed to show that they were acting in bad faith, which is a requirement under the University Act (BC) to establish negligent conduct in this sort of relationship.

The decision included a couple of important points for parties involved in these sorts of disputes:

  1. There is a high standard to meet for claimants attempting to win against a university or professor where something was done while executing duties on behalf of a university (see this provision of the University Act, from BCLaws). They must demonstrate bad faith – like malice or a dishonest purpose - which can be very difficult to prove.
  2. The strength and legitimacy of internal bodies devoted to dispute resolution is significant. The court referred to UBC’s Senate Committee approvingly as a “quasi-judicial body”.
  3. Despite the court’s conclusion, the fact that Maughan’s claim received the attention and resources of two judicial levels – requiring UBC to respond with counsel at every turn – shows the degree of concern courts have for university students, particularly ones pursuing advanced degrees. Maughan’s claim consumed a considerable degree of time, money and effort just to be dismissed for no evidence.

This article in University Affairs discusses the decision and other examples of student lawsuits and how universities and their lawyers are confronting them.

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