The threshold for suing a school board for bullying

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.