Saskatchewan Vice-Principal may be personally liable for communicating information learned from student’s confiscated cellphone

For most employees, , lawsuits connected to the workplace are someone else’s problem.   Many people assume – and rightly so – that if the business gets sued because they were doing what they were hired to do, it will not affect them personally.  If it was a screw-up, it may cost them their job, but their bosses will be the on’s calling lawyers, possibly going to court, stressing about a pay-out or settlement – not the employees.

This is usually good for plaintiffs with a grievance and not only the employees who may have had a hand in things.  Most people looking to be compensated for an injury would rather have to set their sights on an active business with a substantial revenue stream and not a poor shmoe with a mortgage, three kids to feed and a car that needs repairs.

That’s how it usually works according to a legal principle called vicarious liability, which effectively provides that employers will be liable for injuries resulting from a harmful act or omission committed by an employee in the course of their duties.  In Bazley v. Curry (CanLII), the leading Canadian case on vicarious liability, Chief Justice McLachlin wrote on behalf of the court that if there is no precedent showing vicarious liability to apply in a certain scenario, the following should be considered among other principles:

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.  Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.  Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. 

In other words, if an employee hangs out on the business premises after hours for no business reason, and then does something stupid to someone else, most likely the employer should not be liable.  On the other hand, if an employee makes a mistake while doing what he or she was being paid to do, that’s a different story.

In the educational context, this is generally covered off by legislation.  For example, consider section 69 of the University Act  (BCLaws):

(1) An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person’s duties on behalf of the university.

(2) In an action against a university, if it appears that the university acted under the authority of this Act or any other Act, the court must dismiss the action against the university.

F.R. v. D.T. (CanLII), a recent decision of the Queen’s Bench for Saskatchewan, discussed a similar provision in Saskatchewan legislation in terms of the immunity of a teacher or principal.  According to section 232(1) of The Education Act:

Where a board of education, the conseil scolaire, a principal or a teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of the pupils is liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities.

In that case, a student, through guardians, sued a school board and a vice-principal for negligence and breach of privacy in connection with events stemming from a teacher confiscating the student’s cell phone during class.  The teacher gave the cell phone to the vice-principal, who read through the messages on the phone and asked the student about someone identified as having stolen a car.  The police were informed, questioned the student, located the car, and now the student lives in fear of retaliation from the person identified in the messages.

The vice-principal brought an application to strike the claim because he is immune under section 232(1), which the court flat out rejected:

The pupil’s misbehaviour in using a cell phone during class, and the resulting confiscation by the teacher is not an activity approved or sponsored by the teacher in accordance with s. 232(1) of the Act. T.’s reading of the cell phone messages and his resulting contact with the police is not an activity approved or sponsored as contemplated by s. 232(1) of the Act.

While the vice-principal was required, by virtue of his position, to administer any legal disciplinary measures he considered proper, the execution of that obligation is not, in and an of itself, subject to the immunity, leaving this issue to be resolved at trial.