"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Tuesday, September 18, 2007

The Tort of Educational Malpractice ... Does it Exist in Canada?

In Canada, the US and Britain, at various times students and their parents have attempted to bring law suits against school boards or government agencies for the alleged failure to provide the student with an appropriate education. In some cases, the lawsuits are brought by special education students; in other cases, by "typical" students. This type of lawsuit has become known as "educational malpractice"**.

The theory is that school boards and others have a duty to provide children with a proper education and if they are negligent in fulfilling this duty (if they do not meet the standard of a reasonable school board for example) they will be liable for the damages suffered by the student.

Although an interesting theory, it has not received a good response from the Canadian courts.

In two recent British Columbia cases, the BC Court of Appeal noted that it had not referred to it any case in which damages were awarded for educational malpractice and that such claims had been rejected by virtually all appellate courts in the United States. The Court held that educational malpractice, whether framed in negligence, negligent misrepresentation or fraudulent misrepresentation constituted, at a minimum, a "novel cause of action". Although the claims alleging educational malpractice would not plainly fail and were not necessarily frivolous, the field was found to be in significant dispute and the court opined that the plaintiffs "would face a formidable task against heavy authority to establish this case as an exception to the general rule". (Rumley v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.) and R.(L.) v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.)

In an Alberta case, the Native Indians plaintiffs had been placed in residential schools during their youth. They brought actions against the government and religious organizations alleging wrongful confinement, Charter violations, natural law, reconciliation feasts, educational malpractice, religious indoctrination, treaty claims and human rights claims. The defendants applied to have the proceedings struck as disclosing no cause of action. In regard to the claims of educational malpractice, the court found that the egregious conduct described in the plaintiffs’s claims were sufficient to sustain such an action. Further, the plaintiffs’ claims with respect to educational malpractice were inextricably woven with allegations of breach of fiduciary duty and breach of treaty rights and, as such, were sustainable. The particular "egregious" conduct alleged in regard to the claim of educational malpractice is not set out in the decision. (Indian Residential Schools, Re (2000), 82 Alta. L.R. (3d) 99 (Q.B.)

In one case which did not involve a special needs student, the parents and child brought an action for damages against a primary teacher and the school board for stress, anxiety, and disruption of home and community life after removing the child from school. They alleged that the teacher failed to perform her duties by failing to teach, to plan and organize activities with regard to the individual student, to maintain good consistent, and even-handed discipline, and to follow the policies of the board. Specifically, it was alleged that the teacher demeaned and ridiculed the child, spoke in an inappropriately loud voice, bullied and intimidated students, neglected to provide positive reinforcement and refused help outside the classroom.

The court allowed the defendants' motion to strike out the action[which ended the case] finding that failure of the school board to perform its duties under the legislation did not constitute actionable negligence. Once again it was noted that there are no authorities in Canada which recognize educational malpractice as a tort and the statement was adopted that the province could not be faulted for adopting the philosophy frequently applied in the court of the United States, namely, that "The courtroom is simply not the best arena for the debate of issues of educational policy and the measurement of educational qualities". The court found that it was not its role to establish standards of conduct for teachers and only if the conduct were sufficiently egregious and offensive to community standards of fair play should a court even consider entertaining a claim for educational malpractice. Further, there could be no liability for negligence unless some damage was suffered and the statement of claim revealed no such damage. (Gould v. Regina (East) School Division No. 77 (1996), 151 Sask. R. 189 (Q.B.)

Unlike previous Canadian decisions, however, the Court's rejection of the tort in Gould was not unequivocal. It was prepared to leave open the possibility that such a tort might exist given the right set of circumstances. In the Court's words, conduct that was "sufficiently egregious and offensive to community standards of acceptable fair play" might support a cause of action for educational malpractice“. However, unfortunately the court was less than helpful in setting out what sort of conduct it had in mind.


INSTRUCTIONAL NEGLIGENCE AS MALPRACTICE - THE ARGUMENT
Negligent educational practices are addressed as torts when the issue is physical harm. A school board is liable for injuries to a pupil owing to a teacher's negligence, if the injuries occur in a matter, which may reasonably be regarded as falling within the scope of the teacher's employment.

However, as noted above, there does not appear to be any parallel liability for alleged breaches of teachers' and boards' obligations to provide a proper education resulting in educational negligence claims not having given rise to an actionable tort in Canada. However, it is of special importance that although physical harm is judicially recognized as falling within the scope of a teacher's duty of care, the most fundamental purpose of schooling is to educate students. Therefore, it would appear contradictory for a teacher's duty to exclude the duty to foster the intellectual development of students. The fundamental principle underpinning tort law is that a person who suffers loss as a result of the improper conduct of another should be compensated.

Plaintiffs alleging educational negligence must fulfill the formal pleading requirements common to all negligence claims; namely that:
  • The defendant owed a duty to the plaintiff to act in conformity with a standard of care.
  • The defendant failed to act in accordance with the appropriate standards of care.
  • The plaintiff suffered a legally compensable injury.
There exists a proximate causal relationship between the defendant's breach of duty and the plaintiff's injury.

The courts have pronounced that their lack of expertise properly precludes their comprehension of the complexity of teaching, and accordingly that their mandate restricts them from establishing the parameters of competent teaching practice. The claim is that this rationale legitimizes their stance as any duty of care must be grounded in an established standard of practice, which historically has not existed for teachers due to the variable nature of the discipline. The courts have affirmed that the relationship between teaching and learning is particularly complex and consequently it is beyond their qualifications to decide on the appropriateness of particular teaching practices. In sum, the courts have set the parameters of their jurisdiction by stating that it is "not the[ir] function ... to establish a standard of conduct for teachers in their classroom." [ See Gould v. Regina (East) School Division No. 77, supra] This standard, they say,should be defined and mandated by the profession itself.

However, it is interesting to note that in November, 1999, the Ontario College of Teachers approved and published the Standards of Practice for the Teaching Profession. By prescribing a broad array of expectations regarding teaching practice, this document essentially nullifies the argument that no duty of care exists from teacher to pupil due to the fact that there is no set and comprehensible standard of care that could be breached. This comprehensive document, in fact, provides the descriptors for the officially recognized duties of teachers. In other words, the key elements defining the role of a professional teacher are laid down by a legislatively mandated, professional self.governing body.

These Standards unmistakably validate the existence of a teacher's duty to appropriately deliver the defined curriculum. Failing in any of the expectations detailed in the curriculum would necessarily be a breach of duty as outlined by the Standards of Practice published by the governing body of the profession.


English [U.K.] Caselaw
Two plaintiffs brought actions against the education authority (analogous perhaps to our provincial school boards) in X (minors) v. Bedforshire County Council, [1995] 3 All E.R. 353 (H.L.). The first plaintiff alleged that the authority failed to ascertain that he suffered from a learning disorder which required special education provision and that when it later acknowledged his special needs, it wrongly decided that the school he was attending was appropriate to meet those needs. The plaintiff alleged breach of the education authority’sstatutory and common law duties and claimed damages for the expense his parents incurred in placing him in a special school where his particular educational needs were addressed and his condition diagnosed and treated.

The second plaintiff alleged that the authority erred in failing to report him for a formal assessment of his learning difficulties or to an educational psychologist. He also argued that failure of the teacher’s advisory centre to which he was later referred to properly assess and diagnose his condition (which would have improved with appropriate treatment) had severely limited his educational attainment and prospects of employment. Initially, both plaintiffs’ actions had been struck out as disclosing no reasonable cause of action in regard to the allegations of breach of statutory duty, although the claims with respect to negligence had been allowed to proceed.

The House of Lords upheld the striking out of the claims based on breach of statutory duty . The defendant’s obligation under the legislation to provide sufficient schools for pupils within its area could not give rise to a claim for breach of statutory duty based on a failure to provide any or any proper schooling since the legislation did not impose any obligation on the defendant to accept a child for education in one of its schools, and the fact that breaches of duty under the legislation might give rise to successful public law claims for a declaration or an injunction did not show that there was a corresponding private law right to damages for breach of statutory duty. Although children with special educational needs were members of a limited class for whose protection the statutory provisions were enacted, there was nothing in the legislation which demonstrated a parliamentary intention to give that class a statutory right of action for damages.

In respect to claims for breach of a duty of care, assuming that the defendant’s duty to take reasonable care in relation to the protection and education of children did not involve unjusticiable policy questions or decisions which were not within the ambit of the defendant’s discretion, it would nevertheless not be just and reasonable to impose a common law duty of care on the defendant in the circumstances. It was found that the courts should be extremely reluctant to impose a common law duty of care in the exercise of discretionary powers or duty conferred by Parliament for social welfare purposes. Administrative failures, in such circumstances, were best dealt with by the statutory appeals procedure rather than by litigation.

The Court noted that the parents themselves are involved in the process of decision-making and can appeal against decisions which they think to be erroneous. Although in this particular case the parents had availed themselves of the advantages of the statutory scheme, in most cases to allow either the parents on behalf of the child or the child, when he attains the age of majority to bring a claim alleging negligence by the authority in the decision-making process would be to duplicate remedies. Although not found to be a factor in this case, if a duty of care was to exist it must apply as much in relation to actions brought by a parent or child who has not used the statutory machinery as in the case of parents or a child who have. Based on the risk that many hopeless cases could be brought, exposing the defendant to great expenditure of time and money in their defence and the fact that the Court found that "in almost every case which could rise to a claim for the negligent exercise of the statutory discretions, it is probable that, as in the present case, there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion..." it was held that the courts should be extremely reluctant to impose a common law duty of care in such cases.

However, it was found that educational psychologists and other members of the staff of a local educational authority, including teachers, do owe a duty of care to use reasonable professional skill and care in assessment and determination of a child’s educational needs and the authority would be liable for any breach of such duties by their employees.

The education authorities’ appeals were allowed to the extent that the claims based on an alleged duty of care in the exercise of statutory discretion were struck out but the claims in negligence were allowed to proceed. In was again found that the local education authorities could be vicariously liable for breaches by educational psychologists and teachers of their duty of care to pupils with special educational needs in Phelps v Hillingdon London Borough Council; (2000) (HL). In that decision, the court found that failure to mitigate the consequences of dyslexia could constitute "personal injuries to a person" under s 33(2) of the Supreme Court Act 1981.

In Phelps, one of the plaintiffs was dyslexic. However, an educational psychologist employed by the defendant council to whom she had been referred by her school had failed to diagnose this condition. She had difficulties with anything requiring literacy and was unemployed and claimed damages against the council for, inter alia, negligence. The court found that when an educational psychologist was specifically called in to advise regarding a specific child and the child's parents and teachers would clearly follow her advice, a duty of care prima facie arose and prima facie the education authority would be vicariously liable. Public policy did not prevent the courts from recognising such liability.

Thus, it would appear that some of these claims have had at least a better initial success in the UK than they have in Canada, particularly in regards to claims for for an appropriate education for students wtih learnig disabilities.
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**Educational malpractice" has been defined to mean a failure on the part of a "school agency" to "educate a student adequately in basic academic skills". This definition, however, may be too simplistic as suchclaims have been categorized into 4 discrete tort actions (although there is some suggestion that at least one further category may exist):
  1. a failure to provide counsel to, or to educate, students adequately;
  2. a failure to evaluate and place students into appropriate "educational programs and facilities";
  3. a failure to provide proper medical care or diagnosis; and
  4. a failure to "warn or protect students from another's illness.related dangerous proclivity.”
** These categories were set out in J.C. Parker, "Educational Malpractice: A Tort is Born" (1992.1993) 4 E.L.J. 163 at 166.67.

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