Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged school boards
The threshold for suing a school board for bullying
0439 days
by noahsarna
in Uncategorized
Parents of a bullied child are in a horrible bind. For those who are aware of the situation, they send their children off to school each day knowing that the taunting, the insults and the rest of it will be waiting. They can take an active role in trying to diffuse the problem – meeting with teachers and other staff, contacting the parents of the bullies, making the home environment more supportive to give children the right tools to respond – but all too often the only thing that works is switching schools. Or letting time pass.
Schools also have a difficult role to play with respect to bullying. A principal can introduce an anti-bullying policy, teachers can discuss the harmful and immoral aspects of bullying, students caught bullying others can be reprimanded, and so on. But, ultimately, bullying is nearly impossible to stamp out entirely.
What should a parent do when they feel the school isn’t doing enough? And what should a school do when it feels it has done enough but the problem persists?
As with many other areas of human interaction, the courts will only get involved with incidents of bullying when things get pretty bad. But where is that threshold? The cases are few, but the news stories are many:
- CBC reported last August that a mother was suing a Winnipeg school board because she alleges her son suffered brain damage as a result of a bullying incident at school while an educational assistant looked on. No news since, and no judgment either.
- CBC reported last February that a mother was suing an Ottawa school board because she alleges her daughter suffered (and continues to suffer from) depression and anxiety as a result of repeated bullying and harassment. She was seeking over $300,000 in damages arising from the school board’s failure to protect her daughter from these events, but news broke yesterday that a settlement was reached.
- Law Times reported last month that four families were suing a school board in southwestern Ontario because they allege their children were harassed, tormented and abused by teachers and students. They were seeking $35 million in damages. The article also notes the trend among parents to start lawsuits against school boards in small claims court involving these sorts of issues (see here for a previous post on the subject).
These types of claims are a relatively recent phenomenon, and there do not appear to be any cases on the books (at least not in BC) that can be relied on as a direct precedent. Traditionally, it has been expected that parents of a bullied child could only seek a remedy through human rights legislation – that is, bullying could only be resolved by legal means if there was an element of discrimination and the educators failed to take all measures short of “undue hardship”.
The most well-known bullying case is School District No. 44 (North Vancouver) v. Jubran (CanLII), where the BC Court of Appeal ruled on a claim in the context of homophobic bullying at a public school. Mr. Jurban, who did not self-identify as gay, had suffered through five years of homophobic insults and harassment by other students. Before he graduated, he complained to the BC Human Rights Commission, which took up his claim. The BC Human Rights Tribunal held that he had been subject to harassment on the basis of sexual orientation, and the school board was liable for not providing an educational environment free from this harassment. This decision was upheld by the BC Court of Appeal and the Supreme Court of Canada. They school board was liable because it was determined that it had not done enough to stop the harassment. Jubran should be studied by schools to determine what measures were insufficient in responding to bullying that involves discrimination.
Another human rights complaint related to bullying is the subject of a very recent decision of the BC Human Rights Tribunal. In JT v. School District No. 36 (CanLII), a father filed a human rights complaint on his daughter’s behalf claiming that a school board in Surrey discriminated against her on the basis of physical and mental disability (she has cerebral palsy and a mental disability). The father claims that three students taunted and insulted his daughter about her condition and in one instance physically assaulted her, while the school response was insufficient. His daughter suffered from serious depression as a result. The school board had tried unsuccessfully to prevent the claim from being filed on the basis that a time limit had expired, but the Tribunal ruled that the bullying and the school’s response constituted a “continuing contravention”, which extended the time limit.
JT and the news stories cited above point to an increasing reliance by parents on the legal system to address a percieved insufficient response by schools to bullying. School board should take note of these developments and understand the standard their schools should meet to prevent these sorts of claims from arising.
Teachers’ Torts: Acknowledging the Judge in Gym Class
0615 days
by noahsarna
in Uncategorized
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.
When a teacher’s conduct crosses the line between incompetent and negligent
0654 days
by noahsarna
in Uncategorized
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”.
Small claims court as a venue for parents of bullied students
0685 days
by noahsarna
in Uncategorized
Janet Steffenhagen reported last week on her blog Report Card that parents in Ontario have threatened to bring their individual grievances against school boards before the small claims court. According to a school board official in Waterloo, the Ontario government should move to stem the tide of parental litigation before the floodgates open. Reporter Greg Mercer, of TheRecord.com, quoted John Shewchuk as saying the following:
We want to raise an alarm bell with the government . . . we think they’ve got a little bit of a problem on their hands… You can just see the herd coming over the hill. You’re going to find more people who quite frankly just don’t like the answer they got, so they’re saying ‘fine, I’m going to sue you.’
I think we’re going to see a whole lot more of this as people understand that you can go pay your 75 bucks and sue a school board, and you might just hit the jackpot. There are folks out there who can get dollar signs dancing in their eyes, and think it might be an easy score.
British Columbia’s small claims court is fascinating tool established by the government to provide access to justice for non-lawyers (or those for whom it was impossible or inefficient to hire a lawyer) with relatively small amounts of money at stake in their disputes. It is extremely user-friendly but has been subject to considerable criticism for being too favourable to debtors. Also, it gives tremendous discretion to judges – which can be a good or bad thing, depending on your view of the judges.
Shewchuck’s concern about “floodgates” is a compelling one: it is in nobody’s interests for anyone and everyone with a complaint about a teacher, school or school board to start a lawsuit. And the legal system should not be exploited as a tactic to overwhelm a public institution. But this isn’t necessarily a flaw with a culture among parents; it’s a flaw with the small claims court. If there are trends emerging of plaintiffs starting lawsuits with no real merit, the system should weed them out before they cost the system too much money. As well, opening the floodgates is generally a bad thing if it is unjustified. Parents with legitimate grievances should be entitled to demand through the court system, if necessary, that school boards fulfil their obligations. If those obligations are too great, then that is a different matter.
When it comes to bullying, in particular, there is a lot to consider before advancing a lawsuit. Getting involved in a small claims proceeding may cost a frustrated parent more than $75. A legal approach to bullying should be sophisticated and well thought out. Like many things, it may be worth it for parents to visit a lawyer, even briefly, to get basic legal advise before moving ahead if its clear no progress is being made dealing directly with a school or school board.
Choosing the right forum is half the battle
0762 days
by noahsarna
in Uncategorized
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.
Teachers selling coursework raises questions about ownership of intellectual property
3792 days
by noahsarna
in Uncategorized
The Ottawa Citizen ran an editorial last week – which it cherry-picked from a related article in the New York Times – lamenting the rise of an online marketplace for teacher’s course materials. According to the Citizen, through sites like Teachers Pay Teachers and We Are Teachers teachers “sell each other all kinds of projects, plans, tests and even discipline standards”.
Here’s the kicker: these items are work the teachers generally prepared for their classes, not items they developed in their own spare time.
This is “double-dipping”, says the Citizen. A teacher is paid once as a government employee to generate these materials, and then they get paid again from the proceeds of sales on these websites, which with some exceptions goes to the teachers’ personal use. This doesn’t sit well with some.
The big legal issue that arises is: who owns these materials? Taxpayers or teachers? Aside from ownership, how should school boards respond, particularly if big sums of money are involved? Are there policy reasons to discourage this behavior?
Although this issue is new to the educational context, it’s old to employment and copyright law. The relevant arguments surround the principle in section 13(3) of the Copyright Act (Canada): there is a presumption that if a work is made by an employee in the course of his or her employment, copyright is held by the employer, absent a contract to the contrary.
In many industries, this issue is explicitly resolved in a number of ways. First, employment agreements generally affirm that copyright to any work developed in the course of employment falls to the employer. Second, a person can escape the “employee” status and provide a service as an independent contractor (effectively, a consultant).
The unique substance of teachers’ duties makes it unlikely that they have an employment agreement with a copyright clause or a non-employee-employer relationship with the school board. This shows, among other things, how the internet has facilitated the commodification of education. At this stage, the money involved may not turn enough heads, but it is a good idea for all groups involved to develop a position on this issue.
