Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged defamation
BCTF sues chair of BC College of Teachers for defamation
Jul 7th
CBC reported earlier today that the BC Federation of Teachers (BCTF) has commenced a defamation lawsuit against Richard Walker, the current chair of the BC College of Teachers, for comments he made in an opinion piece published in a May edition of the Vancouver Sun. (A link to the court document filed by the BCTF. which contains excerpts of the opinion piece, is available through the CBC article above.)
In the opinion piece, Walker noted that 270 complaints against teachers from members of the public (through the “person complaint” process) have been filed with the College since 2003 but no teacher has been disciplined, a fact which he alleged raises serious questions about how the BCTF has been using the College illegitimately to protect certain teachers to the detriment of students. He also argued that changes should be made to the way the College functions in relation to the BCTF, specifically the endorsement by the BCTF of candidates for election to the governing body of the College. Walker referred to Tom Ellison (Vancouver Sun), a teacher and convicted sex offender, to highlight the need for a procedure to identify and deal with troublesome teachers early on. The opinion piece, among other factors, prompted Education Minister Margaret McDiarmid to launch a review of the College, which was not supported by the BCTF.
BCTF claims that Walker’s allegation that it interferes with, or bears undue influence upon, the disciplinary process maintained by the College is false and untrue and that BCTF suffered loss as a result on Walker’s defamatory words.
Is it likely a court will side with BCTF? Here is a summary from the Canadian Encyclopedia of the law of defamation in Canada by Lewis N. Klar, a renowned author and expert on Canadian tort law:
Defamation law protects an individual’s reputation and good name. Defamation law does, however, restrict freedom of speech. Thus, in deciding defamation actions, the courts must carefully balance these 2 important values…
With the advent of the electronic mass media, such as radio and television, the difference between the written and spoken word became less important. Widely disseminated speech can cause as much harm as something which is written down. As a result, some provinces have even eliminated any practical distinctions between libel [i.e. written defamation] and slander [i.e. oral defamation].
In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.
Even if the claimant can prove those three things, the onus shifts to the defendant to provide a defense. There are two defenses, among others, that Walker may assert in these circumstances:
- It’s the Truth. Generally, you can’t sue someone to stop them from saying things that are true about you. The protection of one’s reputation under defamation cannot be stretched that broadly. Since the onus to prove the truth of the allegations contained in the opinion piece are on Walker, it will be interesting to see what facts are brought in support.
- It’s a Fair Comment. Opinions on matters of public interest that can be honestly-held on the proven facts are protected. This is a softer defense than the truth – while the truth is an “absolute defense”, the defense of fair comment is eroded if the writer or speaker acted with the intent to injure the target of the comments or otherwise pursue their reputation with malice. This is addressed pre-emptively by the BCTF in their document filed with the court.
Thus far, only BCTF’s perspective on this matter has been presented in the media. It will be interesting to see how Walker chooses to respond. In any event, this news reminds all of us, even in the world of education, that our words carry legal consequences and that in the age of the internet – where everyone with a modem has a megaphone – is becoming increasingly important for us to use those words with caution.
University of Calgary facebook reprimand reaches judicial review
Jun 15th
The latest facebook-got-your-tongue litigation making national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“. The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″.
The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly. The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing. The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta. Arguments before the court began this past Friday and were adjourned to another date.
The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct. No formal hearing was required given the nature of the penalty handed down. In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness. The university is trying to place a muzzle on legitimate criticism of professors.
This is a sad picture for a number of reasons:
- The university appears to have done a miserable job of explaining its position in the court of public opinion. While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions. By what authority did the school punish the twins for comments they made online in a non-academic forum? How broad is this power and how else has it been used? Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code? What sort of online criticism of professors is permitted under the code? You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace. The U of C website showed no recent press release asserting its view of the matter.
- The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way. Many students use facebook the way baby boomers, in their student days, used – well – talking. Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case. As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.
The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper. Facebook has entered the courtroom in many ways, particularly to the detriment of student users. For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.
Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract. School administrators must establish policies governing this new venue for commentary. Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.
Choosing the right forum is half the battle
Jan 4th
Gone are the days when getting justice in your dispute meant you had to face the regular court system. Now, it seems like everybody is a judge of something and quasi-judicial entities abound. Organizations have internal panels to handle complaints. Administrative agencies have specialized tribunals to deal with industry-specific issues. Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.
In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere. Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.
Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies. Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:
- In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him. The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
- In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators. The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.
In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies.
To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.
