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: 

  1. 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.
  2. 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.

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