Posts tagged negligence
There have been a series of recent court decisions effecting schools and universities. They involve institutions in a variety of different provinces, which means slightly different rules may apply, and they touch on various different issues - but they should be kept in mind by any institution’s decision-maker or legal advisor.
Here they are:
1. Solicitor-Client Privilege (Alberta)
In Lana v. University of Alberta (CanLII), a university appeals tribunal penalized a student based on allegations of non-academic misconduct in connection with an allegation of sexual assault. The student sued for judicial review. A part of that lawsuit, he also claimed that the university should be required to produce all communications between the appeals tribunal and its lawyer. Although normally lawyer-client communications are allowed to be withheld on the basis of “privilege” (Wikipedia), the student argued that either that privilege was waived or an exception to the rule should apply because the appeals tribunal broke rules of procedural fairness. The court ruled against the student and upheld that the privilege should remain in place.
2. Anxiety Disorder (British Columbia)
In Singh v. University of British Columbia (CanLII), the Supreme Court of Canada denied a student leave to appeal in connection with her lawsuit for judicial review, which is discussed further here. The student failed four courses and claimed her performance was due to an anxiety disorder. She got unfriendly outcomes from university tribunals and took the issue to court, where she failed repeatedly. This is cautious reminder about how far courts will go to try to give students a fair shake.
3. Negligence (Ontario)
In Rollins v. English Language Separate School Board #39 (CanLII), the Ontario Court of Appeal upheld the decision of a lower court dealing with a claim of negligence resulting in injuries suffered by a student due to a rollerblade accident. There was very little evidence about the event itself, and the initial judge refused to draw certain inferences that would establish the facts needed by the student to advance the claim. That decision was validated.
4. Negligence / Jury Direction (Nova Scotia)
In Marshall v. Annapolis County District School Board (CanLII), the Nova Scotia Court of Appeal ordered a new trial in connection with a school bus that hit a young child, causing serious injuries. The first trial involved a determination by jury, and the child’s guardian successfully argued that the judge failed to give the jury the right guidance. A further appeal of this decision will appear before the Supreme Court of Canada (CanLII).
5. Religious Freedom
In S.L. v. Commission scolaire des Chenes (Lexum), Catholic parents wanted a local school board to exempt their children from receiving a mandatory ethics and religious culture educational program, which is required in Quebec schools. They took the issue to the Supreme Court of Canada, which ruled that the parents had failed to show that the program interfered with their ability to pass along their faith to their children. Rather, the court considered the program to expose students to a comprehensive overview of various faiths, which does not amount to an indoctrination of relativism but merely reflects a fact of modern life.
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 #33. Here 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.
It is the king of white elephants. Lawyers, doctors, accountants and other professionals spend much of their average day staring it in the face. It impacts how they speak to people, what they ask and when they choose to retreat. They are so used to it hanging around that they treat it like a sibling they don’t like but can’t ignore.
That’s right – malpractice. (If you guessed “money”, you get half a point.)
Malpractice is a legal claim you can make in tort (wikipedia) against a professional, alleging that they owed you a duty (i.e. to provide reliable legal services) but failed to satisfy that duty according to accepted professional standards, and you suffered an injury as a result of that failure. Part of the reason lawyers, doctors and accountants are constantly trying to do a good job is because if they make a mistake it means a phone call to their insurance company and a possible claim of malpractice that can end their career.
Interestingly, while teachers also marshall an expertise that may significantly influence individuals for better or worse, malpractice has not been applied to them. Of course, educational institutions can be made liable for negligent acts or omissions of their employees (e.g. if a gym teacher lets kids play a sport recklessly), but the term “educational malpractice” refers to a distinct type of failure that is essential to the function of educators. In Hozaima v. Perry et al (CanLII), the Manitoba Court of Queen’s Bench set out this view:
Educational malpractice is a term that is used in some of the jurisprudence and refers to the potential liability of educational institutions for their failure to educate their students. The concept of educational malpractice in the form of liability for failure to educate first started as a concept in the United States in the mid-1950s, but a broad duty of care of that nature was stifled very early on the grounds of public policy due to the difficulty of proof necessary to show acceptable standards of care for classroom methodology, as well as the socio-economic consideration that would create too great a public burden in time and money for the system… However, in Janisch, H.N., “Education Malpractice: Legal Liability for Failure to Educate” (1980) The Advocate, Vol. 38 at 491, Professor Janisch foresaw the possibility of a limited extension of the liability of universities for the quality of the educational experience offered their students. This he foreshadowed might occur in contract and in an extension of the fiduciary duty. He also foreshadowed the possibility of liability of individual professors (see p. 498).
Many students at every educational level complain about their teachers. Many people can likely recall one or two teachers that, frankly, just stank at what they did, and we like to blame them for our knowledge inadequacies as adults. But there is, and should be, a world of difference between disliking a teacher’s style or being disappointed with their level of effort and being able to sue them or the school for those qualities. The arguments against allowing someone to base a claim in tort on educational malpractice is that it is difficult to demonstrate precisely what a teacher should have done differently and what injury the student suffered as a result. As well, schools would constantly be in court, or be worried about being dragged to court, if every student who never understood algebra could call a lawyer to have them send their grade 7 teacher a demand letter.
This view, in somewhat more sophisticated terms, currently prevails in Canadian courts. Many Canadian cases on the subject are based on two American decisions:
- Peter W. v. San Francisco Unified School District et al: where a student claimed his school didn’t recognize his learning disabilities, put him in higher classes without realizing that he couldn’t read the materials, allowed him to graduate high school even though he could only read at a grade 8 level, and so on. The California Court of Appeals rejected his claim for the reasons mentioned above.
- Donohue v. Copiague Union Free School District: where a similar claim was advanced, with a similar response from the New York Court of Appeals.
These cases were both decided in the late 1970s. Since then, courts in both the United States and Canada have rejected claims against school authorities in tort related to the quality of education. As a result, whenever a claim is launched against a educational institution that seems conceptually similar to educational malpractice, one of the defences is that the claim should be struck because educational malpractice is not actionable (i.e. it cannot be the basis of a lawsuit) – here are examples from the University of Ottawa and the University of Manitoba (CanLII).
Nonetheless, there have been arguable cracks in the consensus that indicate some possibility of Canadian courts accepting educational malpractice in the future. For example, in Gould v. Regina (East) School Division No. 77 (CanLII), the Saskatchewan Queen’s Brench commented that if a teacher’s conduct was so offensive to community standards such a claim could be entertained:
It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards. Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice.
As well, there have been several cases in which a court refused to dismiss a claim involving educational malpractice where the allegation involved a failure of the educational institution to deliver what it had promised. For example, if the school advertises a degree can be obtained in two years, there is a risk a student could sue if that turns out not to be true. See here and here (CanLII). These and similar decisions deal with a court’s refusal to dismiss a claim rather than a substantive decision on the merits; allowing a lawsuit to proceed because it may not be a waste of time is different from agreeing with the plaintiff’s case. So, educational malpractice still has a long way to go. Here is an article from Paul Howard, an education law expert at Shibley Righton LLP, with an interesting take on educational malpractice.
The lessons, if any, that can be drawn from the judicial treatment of educational malpractice are limited since no court in North America has accepted the tort. Nonetheless, there does appear to be some flexibility with regards to student claims involving contracts and misrepresentation by an educational institution. As a result, schools, particularly universities, must review any representations they make to ensure that they can deliver on what they promise.
Evan MacIntyre, in relative terms, has had an unlucky recent history. When he was 14, a lawn mower engine fell on his right wrist. When he was 15, a car hit his right leg as he was walking in a crosswalk. When he was 19, the truck he was driving was hit from behind by a van. These accidents left him with injuries that he claims continue to have a significant impact on his ability to work and enjoy recreational activities.
Evan started a lawsuit against the alleged wrongdoers for all three injuries, and the three claims resulted in a single judgment – MacIntyre v. Pitt Meadows Secondary School (CanLII). Ultimately, Evan was generally victorious and was ordered a significant damages award, but on the most interesting claim – the one against his school and school board – he failed.
In 2002, Evan was a 14 year-old grade 9 student at Pitt Meadows Secondary School. The facts surrounding the injury he suffered in shop class one day were difficult for the court to determine. He did not tell his teacher or the school about the incident for two years, when Evan started the lawsuit. He told his parents little about the incident until shortly before then. The only evidence available about the engine hitting his wrist came from Evan himself. He could offer no evidence of why or how it happened. Ultimately, the court determined that Evan himself had no actual recollection of the events that occurred on the day of the incident.
Interestingly, the court found that it did not need to know how the accident happened to find the school authorities negligent. The court considered several factors in rejecting Evan’s claim:
In the trial decision in Thornton v. Prince George School District No. 57, reflex,  3 W.W.R. 622 (B.C.S.C.), rev’d on other grounds (1976), 73 D.L.R. (3d) 35 (B.C.C.A.), Andrews J. found that the teacher owed a duty to ensure that the equipment provided is reasonably safe for the purpose for which it is intended: 632. In Wells v. Smithers School District No. 54,  B.C.J. No. 2297 (S.C.), Legg J. considered a case involving an injury arising from the use of a planer in a woodworking class. He noted that a planer is a dangerous machine and found that a school owed a strict duty of care to a student operating a dangerous machine. In finding liability against the school in that case, he balanced three factors: the probability of an accident happening; the possible seriousness of its consequences; and the costs of reducing the risk of injury.
In this case:
- the activity that day in the shop class was not inherently dangerous;
- there was a minimal risk of serious injury;
- the students were mature and competent enough to participate without constant supervision;
- the teacher had provided the students with sufficient safety instructions; and
- the equipment provided was reasonably safe for its intended use.
Schools are filled with constant potential for teenage injuries. Teachers, schools and school boards should look to decisions like MacIntyre for guidance on the criteria by which their conduct will be judged if – even two years after an incident – a student brings forward a claim for negligence.
Physical education (PE) teachers beware: there may be a judge in your future.
In March 2007, Paige Hamilton was a seventeen year-old girl attending grade 11 at North Delta Secondary School. During a PE class, Paige was accidentally hit in the face with a floor hockey stick by a classmate, which left her with a broken nose. She also complained of bruising around her eyes and difficulty breathing, and she felt self-conscious about an unattractive lump on her nose that she alleged was caused by the incident.
Some time later, Paige did what any 17 year-old student might do: she sued the school. She claimed the teacher was negligent for failing to require the use of protective gear and offering inadequate supervision. For her troubles, Paige argued she want entitled to general damages of between $25,000 to $28,000, plus reimbursement of $4,000 for cosmetic surgery not covered by MSP.
In Hamilton v. School District #37 (Delta), the Supreme Court gently embarrassed Paige in two ways:
- by dismissing her claim and holding that it did not come close to meeting the standard necessary to show negligence by a teacher; and
- by finding, in very polite terms, that she was not entirely credible as a witness and, in a case that was largely fact-specific, that made a sizeable dent in her likelihood of success.
The end result of her experience with the court system was, presumably, difficult for her because of the lawyer’s bill saddled on her (or her parents), the stressful memories of testifying and acting as a failed plaintiff against a former school, and the public record now imprinted in legal databases discussing her injuries and anxieties.
As discussed previously on this blog, there are four main criteria to determine whether a teacher has satisfied his or her obligation to act with due care and caution toward an injured student:
- whether the activity was suitable for the mental and physical condition of the student;
- whether the student was progressively trained and coached to do the activity properly and safely
- whether the equipment was adequate and suitably arranged; and
- whether there was proper supervision.
These criteria were established (though not as a fixed code) in Myers v. Peel County Board of Education, a Supreme Court of Canada decision in 1981 dealing with a student who was paralyzed when he tried to complete a difficult gymnastic manoeuvre without supervision in a school exercise room that did not have appropriate floor mats.
There are two well-know cases in British Columbia that show a school board’s threshold for liability in these sorts of claims. In Hussack v. School District No. 33 (Chilliwack), where a grade 7 student was hit in the head with a field hockey stick during a PE class, the Supreme Court concluded that the teacher had failed to prepare the student to play the sport safely before letting him join the game. In Peterson (Guardian ad Litem) v. School District No. 36, Surrey, where a grade 11 student was hit in the head with a bat during a PE class, the Court of Appeal decided that the teacher had failed to advise the class about the foreseeable dangers involved with the sport.
In Paige’s case, two elements – inexperience and improper supervision – were not established.
Sports injuries are an inevitable part of teenagehood and, as odd as it sounds, this means the courtroom has entered gym class. PE teachers must follow certain procedures when allowing sports with any risk of injury or welcome lawsuits that could blot their resumes and inflict financial damage on their school boards. Students and parents must ensure that before starting a lawsuit they fully understand the legal and non-legal implications of hiring a lawyer to heal a sports injury.
It has now been over two months since the pep rally at Winnipeg’s Churchill High School, when teachers Chrystie Fitchner and Adeil Ahmed’s lapdance (link to National Post) effectively terminated their careers in education. Their story made national headlines and reminded parents across the country that teachers, like people in any other profession, can jump over the line between acceptable and unacceptable conduct.
Teachers, like parents, are confronted every day with the opportunity to make mistakes that leave long-term effects on the children in their care. But nobody is perfect and anybody can have an off day. Fortunately, the courts have established a relatively clear standard for determining when a teacher’s incompetence or error will actually result in legal consequences.
In 1998, Devon Hussack was a 13 year old Chilliwack middle school student who had never played field hockey before. One day, his physical education teacher encouraged him to join a game, hoping that his participation would curb his chronic absenteeism. Hussack was accidentally whacked in the face with a stick - hard. He began suffering from headaches, dizziness, etc., and now he rarely leaves his home. The injuries caused by the hit have left him unable to complete many tasks on his own.
Hussack sued the school district, claiming the teacher had failed to prepare him gradually for the sport; by encouraging (or even permitting) him to participate he exposed him to the unreasonable likelihood of injury. The school board responded the teacher did his job well, and regardless Hussack’s injuries were the result of pre-exising conditions.
Did the teacher somehow fail to protect Hussack from a dangerous sport, or did he in fact do everything he should have in light of his obligations? How can we determine whether he used the appropriate caution? In Hussack v. School District No. 33 (Chilliwack), the British Columbia Supreme Court referred to a standard of a “careful or prudent teacher” that involves the following test:
Four major criteria are considered as part of the test, namely (a) whether the activity was suitable to the age and mental and physical condition of the student; (b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger; (c) whether the equipment was adequate and suitably arranged; and (d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.
Similarly, in Myers v. Peel (County) Board of Education, the Supreme Court of Canada emphasized that a teacher’s conduct must be evaluated on a case-by-case basis:
[The standard's] application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the student may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.
Regarding Hussack, the court found that the teacher’s failure to provide him with gradual training prior to participating in the game led to the likelihood that Hussack would get hurt. Even though he had considerable hockey experience, in this case that experience – left unrestrained by his teacher – led Hussack to apply different expectations to the game and precipitated the injury.
Parents may be interested in considering a legal recourse if their children get hurt at school during what they see as a lapse in judgment by a teacher. But before considering whether a teacher’s conduct should result in legal consequences, parents should review the principles underlying the standard of a “careful or prudent teacher”.
A waiver of liability is a scary document for any parent to read. You are effectively entrusting your child’s safety to someone with whom you agree, in most circumstances, should not be held accountable if something goes wrong.
Enter Wong v. Lok’s Martial Arts Centre Inc., a recent decision of the British Columbia Supreme Court.
The plaintiff in this case was a child who was injured when he was violently thrown to the ground in the course of a sparring match at a martial arts school. The defendants were the company that owned the school and the individual who owned the company. The child’s mother alleged that the defendants were negligent, claiming they should have taken certain preventative measures for sparring matches, including screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches.
The defendants, in response, held up a waiver of liability signed by the child’s mother when the child started at the school:
CONDITIONS OF MEMBERSHIP AND RELEASE
It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School.
YOU ARE RESPONSIBLE FOR ALL INJURIES.!
The mother claimed she did not understand the clause and, in any event, knew she had to sign it for her son to attend the school. The defendants applied to have her claim dismissed. The thrust of their argument: the clause is valid – a parent is entitled to enter into a contract on behalf of a child to waive that child’s right to bring a claim in negligence.
The court rejected the defendants’ application primarily on the basis that the Infant Act (British Columbia) “does not permit a parent or guardian to bind an infant to an agreement waiving the infant [i.e. minor]’s right to bring an action in damages in tort”.
This statement of law is surprising because waivers of liability are everywhere. The court hinted at why this is so with a quote from the Law Reform Commission of Manitoba:
Waivers are commonly obtained from minors and their parents. They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful.
At the end of the day, even though these waivers are generally not enforceable, they still have the practical effect of reducing the likelihood of claims because they generally lead parents to assume they signed away rights they might have had if their child gets hurt. Law is about what people know they are entitled to, not just what might be on the books. Parents, in particular, should know the difference, and schools should know what they can and can’t rely on to protect themselves from liability.