Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged teachers
When a teacher’s conduct crosses the line between incompetent and negligent
0806 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”.
Lawyers praising teachers
0905 days
by noahsarna
in Uncategorized
Tony Wilson, a prominent Vancouver lawyer and a renowned expert in franchise law, wrote a stinging and long-overdue lament to the legal community about how our society values lawyers and undervalues teachers. The column appeared in a broadly distributed publication of the Canadian Bar Association (BC Branch) last month.
Mr. Wilson’s commentary has become a discussion piece in the legal and educational communities. Good for him for putting his platform and position to good use. Here is a flavour of the article:
[Why] is it that society pays me (and you) buckets more money to draft contracts, close business transactions or defend insurance companies than those who are responsible for educating the most important people in our lives?…
It’s all too easy to be seduced by our own sense of self-importance, just because we’re paid a lot of money, or we know how the levers of power work, or because others put a value on the legal profession that, dare I say, is sometimes out of proportion with other vocations and callings. In many ways, teachers are more valuable than lawyers, because unlike us, they don’t talk about changing the world. They do it day by day. Child by child.
Teachers selling coursework raises questions about ownership of intellectual property
3944 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.
