Posts tagged privacy

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

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3 years
by in Uncategorized

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.

Teachers confronting the “new paparazzi”: protect your reputation

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3 years
by in Uncategorized

Vancouver lawyer Tony Wilson has an entertaining article in the current issue of Teacher Newsmagazine, a publication of the British Columbia Teachers’ Federation, with cautionary tales of public figures getting caught unaware within range of a microphone (leaving Gregor Robertson’s gaffe [Vancouver Sun] off the list) and how this technology may affect teachers.  This is how he concludes the article:

All this is interesting, but what applicability does it have to the teaching profession? A lot, actually.

In February 2021, two teachers at Winnipeg’s Churchill High School got carried away with the moment, and performed a raunchy and suggestive lap dance at a student pep rally in front of 100 students. The fully clothed performance included mock spanking and implied oral sex. A student with a cell phone filmed it and posted it the next day to YouTube, resulting in the suspension and firing of the teachers involved.

So the lesson is this: if you’re a teacher, you’re already being scrutinized minute by minute by your students. They all have cell phones these days. All the cell phones have video and still photo capabilities. You may be their teacher, but they are the new paparazzi. Make one slip up or error in judgment and you’ll find you’re suddenly Brittany Spears or Mel Gibson (but without all the money).

So protect your own reputations. Remember—every cell phone is a camera and every microphone is live. 

This certainly puts a lot of pressure on teachers.  My sense is that allowing students to record or take pictures of teachers while they teach may easily create an uncomfortable work environment.  Unless a student has a good reason (e.g. medical or otherwise) for needing to record a teacher, schools should have policies against students using recording devices in classrooms.  This is not because any teacher should be protected if they teach or say anything horrible - there are other ways to deal with that - but because any picture or video or audio recording can be used by students to hurt the teacher’s reputation (e.g. chop up what they say or do and reproduce it easily). 

Students today use computers and other devices with modems the way students used to use paper, and it’s incredibly easy to post something.  Teachers deserve at least some protection from the silly and often mean methods students use to poke fun.  Schools may be liable for not doing enough to ensure the classroom is not a hazardous location for a teacher’s online reputation.

Now, this is entirely different from the university context, where the cost of education increases, the level of classroom time decreases, the teaching material may be more difficult to wade through without oral interpretation, and a student’s livelihood may be more directly affected by getting something wrong. This is different also from online criticism of teachers and professors. 

The recent decision in Pridgen v. University of Calgary (CanLII), which involved comments by students on Facebook about a professor, affirmed that students should have a venue for criticising their educators.  This is how the Court of Queen’s Bench of Alberta presented the rationale:

I cannot accept that expression in the form of criticism of one’s professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action. 

The problem is when the online comments or representations of educators amount to harassment or bullying.  In the case of Windsor-Essex Catholic District School Board & Seguin v. Lentini et al., the Ontario Superior Court of Justice awarded damages to a principal and school board after students and others who were unhappy with one of the principal’s decisions about athletics created a Facebook group and posted comments accusing him of engaging in pedophilia on school property.   Imagine how much worse the harassment could have been if the students and others had access to mashed up audio or video material of the principal or an unflattering picture of him.  

I think Wilson’s phrase – the “new paparazzi” – because students more than any other group in our society rely on and function through social media.  Schools should acknowledge the implications of this reality for teachers and take the necessary steps to protect them from its abusive possibilities.

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