Special Education and Parents' Rights

In Nova Scotia, the education of a special needs child is governed by:

1. The Canadian Charter of Rights and Freedoms
2. The Nova Scotia Humans Rights Act
3. The Education Act and Regulations made pursuant to that Act
4. The Special Education Policy Manual

I have listed these documents in their order of importance, or in other words, what trumps everything else (the Charter) comes first.

I. CANADIAN CHARTER OF RIGHTS AND FREEDOMS
The Charter is part of Canada’s Constitution and as such, any federal or provincial law in conflict with it will be of no force and effect to the extent of the conflict. For our purposes, the most relevant section of the Charter is sec. 15 which provides that "Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’.

To date, there has been one major case where the Supreme Court of Canada has applied this section of the Charter in the context of the rights of a special needs child in the educational system [Eaton v. Brant (County) Board of Education (1996) 142 D.L.R. (4th)385].

In that case, the parents of a multiply-handicapped child appealed her "placement" – although Emily had initially been placed in a regular kindergarten class with a special assistant, after two years the school wanted Emily to be placed in a segregated special education class and the parents wanted her in a regular grade level classroom. Through the IPP appeal process, the case eventually made its way to the Supreme Court of Canada. The argument centred around s. 15 of the Charter – was it discriminatory to place Emily in a special education classroom? The Court found that in the facts of that particular case, it was not. It would be in Emily’s "best interests" to be placed in a special classroom.

Although some people view this case as a step backwards for equality and perspective is, of course, everything, I see this case as an important step forward for special needs children. The court noted that true equality requires the recognition of differences and focused upon a lack of accommodation as the real threat to disabled people in Canada. It was found that segregation can both protect and violate equality depending on the very individual characteristics of the child in question. Integration was accepted as the general norm for the placement of special needs students due to the benefits it provides. But at the same time, the court found that a presumption such as that imposed by the Ontario Court of Appeal in favour of integrated schooling should be rejected on the basis that it may operate to deprive pupils that do require special education services that are best provided in a segregated setting (p. 407).

The idea that each individual child, the strengths and needs of that particular child and where those needs are best met as the controlling factor in determining placement makes sense, at least to me. The court held that in some cases segregation would constitute discrimination; in other cases, inclusion in a regular classroom would be discriminatory. It all depends on the particular child and what is in their best interests.

The potential pitfall that I see in this analysis is how we determine (and who determines) what is in a particular child’s best interests. Unfortunately, the courts often display a high degree of deference to the "specialized tribunals" that represent school boards, whether it be the Identification Placement and Review Committee which determined placement in the Eaton case or the Ministerial appeal board we find in Nova Scotia. It has been noted that parents have no such benefit and the weight of their choice is only felt when they agree with the Board. And to date, not only in Nova Scotia, but across the country, the courts definitely tend to come down on the side of the education system as being the best party to make such decisions.

One point that is clearly made by the case of Emily Eaton is that people with disabilities are not required to take the world as they find it, as the mainstream world is focused on an able-bodied perspective. A decision regarding placement of a child must be governed by an analysis of the individual needs of that child and focused on the best interests of that particular child.

I think its also important for parents and educators to realize that "placement" need not be an all or nothing proposition. From my point of view, insisting that all special needs children must be placed in a special education setting 100% of the time is as ridiculous as asserting that all special needs children must be in a regular classroom 100% of the time. If we look at the individual child, and their particular needs, we may often find that the real answer is somewhere in between the two extremes. As long as the governing rule is what is best for this particular child, a program planning team should be able to ascertain whether a combination of settings would be more valuable for the child. Certainly, the interpretation placed upon s. 15 of the Charter by the Supreme Court of Canada in Eaton would not stand in the way of such a conclusion.

The potetial for the Charter to be used in special education litigation can also be witnessed in Concerned Parents for Children with Learning Disabilities Inc v. Prince Albert (Various Boards of Education) (1998), 170 Sask. R. 200 (Q.B).

The plaintiffs brought an action for a declaration that the infant plaintiffs were entitled to educational services appropriate to the needs of children with learning disabilities and for order by way of mandamus requiring the defendant school boards to comply with their obligations to wards the plaintiffs and other appropriate relief under the Charter. It was also alleged that the Sask. Human Rights Act and s. 15(1) of the Charter imposed a duty on the defendants to provide appropriate education to the infant plaintiffs and other children with learning disabilities. The defendants applied to strike the statement of claim on the grounds that it disclosed no reasonable cause of action or that it was scandalous, frivolous or vexatious or an abuse of the process of the court.

The court refused to strike the statement of claim, noting that although the claim was too vague, it could be narrowed to a specific allegation that the defendants had breached a duty to provide specific programming for children with learning disabilities on the model of a special experimental program established in 1992. It was found that the plaintiffs were not asserting a private law claim based on breach of statutory duty or breach of contract and thus, it was unnecessary for the court to address the question of whether such claims would be maintainable. The plaintiffs’ claim was viable on the basis of an allegation of a breach of the duty to accommodate the needs of children with learning disabilities within the public school system in accordance with sec. 15(1) of the Charter. The plaintiffs had a constitutional entitlement to appropriate educational services and it would be open to the trial judge to find that the failure to offer programming based on the specific model constituted a violation of the plaintiffs’ rights under sec. 15(1) of the Charter to the equal benefit of the law. The defendants failed to establish that it was either necessary or highly likely that the plaintiffs would be unsuccessful at trial.

In regard to the vagueness of the plaintiffs’ claim the court stated as follows at p. 8:

The defendants have demanded and are entitled to particulars of the respect in which the education currently provided to the infant plaintiffs and other children with learning disabilities is claimed to be "inappropriate" and what it is alleged the defendants have a duty to provide instead. Without this information it is impossible to defend the action. In the context of the plaintiffs’ particular claim "inappropriate" must, logically, be understood as a relative term, defined in relation to what would be "appropriate". That is because mere proof of general lack of success on the part of these children does not necessarily entail the conclusion that current educational methods are inappropriate, for these failures may be an inevitable, if tragically regrettable, consequence of their disability. Thus, in this context, "inappropriate" provision of education can only mean failure to do what would be more effective for the education of these children.

The plaintiffs’ claim thus necessarily, in my view, entails a claim that more effective methods than those currently employed are reasonably available. If this is so, the defendants are clearly entitled to particulars of the alternative methods it is claimed would be appropriate and the defendants are alleged to have a duty to offer.
Emphasis in original)

And further at p. 9:

It is in my opinion extremely doubtful, as I have explained, that the plaintiffs’ claim is maintainable on the extremely vague and abstract basis that the plaintiffs now urge, that would not require the plaintiffs to specify what educational programs and services they allege that the defendants have a duty to offer, in place of or in addition to what is now offered, for learning disabled children.

Initially, the plaintiffs relied on the Constitution Act (1867), s. 93; The Education Act and regulations; the International Covenant on Economic, Social and Cultural Rights, Article 13; and the Convention on the Rights of the Child, Article 19.

The court noted that the defendants argued convincingly that the programming already offered to learning disabled children met any obligation the defendants had solely on these bases. However, last minute amendments to the pleadings which added claims based on Sec. 15 of the Charter and Sec. 13 of the Human Rights Act was found to "add a significant new basis for the claim asserted, not included in the original pleadings, and now focused on a claim for equality rights, and, in particular for the right of accommodation for learning disabled children in the context of the publicly funded education which is in fact offered pursuant to provincial legislation".(p. 14) It was noted that the plaintiffs’ argument now relied extensively on sec. 15 of the Charter and the decision of the S.C.C. in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

In regard to the applicability of the decision of the S.C.C. in Eldridge, the court stated as follows:

There are close parallels between the claim upheld in Eldridge and the claim asserted by the plaintiffs in the case at bar. In Eldridge, La Forest, J. interpreted the plaintiffs’ claims as an assertion that "because of the communication barrier that exists between deaf person and health care providers, they receive a lesser quality of medical services than hearing persons. The failure to pay for interpreters¼ infringes their right to equal benefit of the law without discrimination based on physical disability". (at 365) The plaintiffs before me plead that because of failure to accommodate sufficiently the disabilities suffered by the infant plaintiffs they receive a lesser quality of educational services. In Eldridge the Court held that although the legislation challenged did not infringe s. 15(1), the Charter applies to the failure of the hospitals and the Medical Services Commission, which exercise a discretion under that legislation, to provide sign language interpreters. In the case at bar, the defendants have argued that both the Minister of Education and the defendant Boards exercise statutory discretion as to the specific nature of educational services to be provided to learning disabled students. The decision in Eldrige establishes that exercise of that discretion must conform to constitutional standards and it is therefore reviewable on its merits where violation of s. 15(1) is alleged. (pp. 16-17)

It appears to be this "constitutional entitlement" which took this case out of the general "hands off" approach of the courts toward educational matters.

While the defendants in this case do not deny the plaintiffs’ statutory right to appropriate educational service, the effect of Elridge is to elevate this statutory right to a constitutional entitlement. The distinction is highly significant in the context of the defendants’ central contention, that the quality of educational services provided is, by statute, a matter of discretion which, in relation to general policy, is accorded to the Minister, and, in relation to specific programming, is accorded to local school boards. The defendants say that the plaintiffs cannot show that the discretion exercised in the case of provision of educational services to learning disabled children has been exercised unlawfully, for there is at least an honest difference of opinion between the defendants and the plaintiffs as to the most appropriate way to educate children such as the infant plaintiffs. It is not open to the courts, they contend, to review the exercise of this discretion on its merits.

This argument fails, in my view, if the plaintiffs are able to establish, at trial, on the basis of expert evidence, that special educational services provided in the classroom with the additional assistance of resource teachers are significantly ineffective, in comparison to the Carlton Connection model, for education of children such as the infant plaintiffs.

There may, of course, be policy considerations for limiting the defendants’ responsibility to ameliorate such disadvantage in the provision of educational services to the infant plaintiffs as can be shown. As the Court held in Elridge, however, these are properly considered in determining whether any violation of s. 15(1) is saved by s. 1 of the Charter.

In short, in the context of a Charter claim there can be no question that such considerations are justiciable.
(pp. 17-18)

II. NOVA SCOTIA'S HUMAN RIGHTS ACT 
For now, it is sufficient to note that all provincial legislation, including the Education Actand Regulations made under it, must be in compliance with the Human Rights Act. The Human Rights Act contains a provision similar to Sec. 15 of the Charter, stating that "No person shall in respect of the provision of or access to services or facilities discriminate against an individual or class of individuals on account of …. physical disability or mental disability.. (s. 5(1))


III. THE EDUCATION ACT AND THE SPECIAL EDUCATION POLICY MANUAL
Under the Education Act every child in the Province of Nova Scotia between the age of 6 and 16 shall attend school. A School Board is to establish an attendance committee of the School Board and to enforce mandatoryattendance at School (s.116; s.111) An exception to this is, "home education" where a child who is of an age subject to the Act’s requirement that he attend school, may be given education at home, subject to a "registration form" [Governor in Council Regulations s. 39 (1); 39(2)

The Ministerial Regulations made pursuant to the Act provide that "as part of the Public School Program , programming and services for students with special needs must be provided by each school board in each school under the jurisdiction of the school board" [s. 49(e)] The Special Education Policy Manual "...endorses the basic right of all students to full and equal participation in education" [pg.8] and recognizes "...the fundamental educational human right of every individual to have their unique learning needs responded to on an individual basis.", "...where every child is respected as part of the school community, and where each child is encouraged to learn and achieve as much as possible..." [pg.13]

Pursuant to the Education Act, school boards are obligated to "develop and implement educational programs for students with special needs within regular instructional settings with their peers in age, in accordance with the regulations and the Minister’s policies and guidelines". [s. 64(2)(d)] This section of the Act will likely prove to be a source of contention in the courts in the future. After all, doesn’t this section state, or least imply, that placement in a regular classroom is mandatory?
On its face, that certainly could be argued. But remember that all provincial legislation must comply with both the Human Rights Act tand the Charter.We have already seen that the Supreme Court of Canada has stated that integration could constitute discrimination for some children. Just as segregation could constitute exclusion for other students. If and when the courts are asked to interpret s. 64(2)(d) of the Nova Scotia Education Act they will either be forced to read the section down somewhat to find it in compliance with sec 15 of the Charter or find it to be in violation of the Charter.

In general, courts tend to dislike striking down legislation as being unconstitutional if there is another alternative available. In looking to the intent of this section, a court would examine the "Minister’s policies and guidelines", noting that comments such as "The support services that are designed to meet students’ diverse educational needs should be co-ordinated within the neighbourhood school and to the extent possible, within grade level/subject area classrooms". (p. 13, Special Education Policy Manual) and "Preparing all students for a lifetime of learning requires appropriate programming in a variety of educational settings [pg.32] The Department recommends that personnel have expertise in "….planning and organizing a variety of interventions or program alternatives for students with special needs" (Policy 1.5, p. 23)

But perhaps most importantly, the vision of "inclusive schooling" within Nova Scotia is stated to include "school boards providing a continuum of programming options and services to meet the special needs of students" (Policy 2.0, p. 34).

Although speculative, there is likely enough foundation to be found to support a reading of the s. 64(2)(d) of the Act as being in compliance with the Supreme Court of Canada’s interpretation in Eaton.The Education Act creates a strong presumption that parents are a rightful, necessary partner in the education of the province’s children. Parental obligations in general include the duty, to "support their children in achieving learning success" [s.25 (1) (a)] to "communicate regularly with their children’s school" [(c)]; and "support their children’s teacher in their efforts to provide an education for their children" [(e)]. In return, teachers are required to communicate regularly with parent she is required to implement programs and courses as prescribed by the public school program [(w)]

Parents are also entitled, perhaps even obligated, to participate as members of the Program Planning Team for students with special needs as was discussed earlier today. The Act states that parents are to pay a principal role in the determination of their child’s IPP. Although the role of the parent is not exclusive of the role of other partners in the Program Planning Team, it is apparent that ithas special weight. Moreover, the legislation makes it clear that the parents’ legal role in the education of a special needs child is not merely by reason of their status as parent, but because parents, as such, are legislatively considered to have a substantive contribution to make to the child’s education.

The policy provides a detailed description for Program Planning team process stating that the program planning meeting should not be a forum for teachers, administrators, and other agency personnel to present a completed program to the parents. [pg.38] It is made clear that it is the "Program Planning Team [of which the parent is an equal participating member] is responsible for reviewing the student’s progress in the plan and meeting to discuss changes when necessary. The program plan should be reviewed at least twice annually [pg.40]

The core group of the Program Planning Team consists of the School Principal or Vice - Principal, teachers involved...parents / guardians..." (Policy 2.3) The Policy also recognizes that it is necessary to expand the traditional context of educational decision making to include multiple agencies / departments, the community, parents and other potential departments." [pg.55]

The guidelines note that parents and guardians possess a wealth of knowledge and experience about the special needs of their children and that decisions about Program Planning and services should be reached by mutual agreement among team members including parents / guardians. [pg.56] The guidelines also recognize that the parents contribution to an IPP is a contribution in substance.


IV. IPPs – FOR WHOM AND WHAT IS INCLUDED
The Policy provides that an Individual Program Plan (IPP), based on the student’s strengths and needs, will be developed and implemented for every student for whom the Provincial Curriculum outcomes are not applicable and/or attainable." It is also recognized that an IPP can include non-academic areas stating that " For students whose special needs include non-academic areas, the Individual Program Plan should detail the outcomes involved and the supports and services need to enable the student to reach these outcomes [pg.46] (Guidelines, 2.6)

The specifics of what are to be contained in an IPP are found in Policy 2.2 at p. 39 of the Policy Manual [and will be covered in detail in a separate presentation]


V. HEALTH RELATED SERVICES
School boards are obligated to provide necessary medical treatment during school hours. In a Dept of Education "Publication and Reference" dated December 18, 1975, it is stated that "School boards are responsible for the administration of oral medication during school hours, when such medication has been prescribed by a physician and authorized by a parent to be administered during school hours. The health care and comfort of physically disabled students will also be the responsibility of school boards (positioning, assistance with mobility, feeding and toileting and general maintenance). The Department of Health will work co-operatively with aides and/or other board personnel in providing advice and assistance".



VI. FINDING THE PROPER DEFENDANTS
In Concerned Parents for Children with Learning Disabilities Inc. (infra), the Province argued that it was not a proper defendant as any obligation to provide services based on a particular educational model fell solely on the school boards. The court rejected this argument, noting that affidavit evidence had shown that the Province has and exercises the obligation to set policy and standards, evaluate programs and provide funding to school boards for certain types of expenditures. The court found that if the plaintiffs proved successful in establishing that they had a constitutional entitlement to widespread provision of educational services on the basis of a particular model, it would be open to them to establish, if they could, that the general policy standards and guidelines, and the funding parameters set by the Province failed to meet the constitutional standard.

In this regard, the court stated as follows:

Arguably, policy standards that do not mandate compliance with the minimum constitutional standard are themselves constitutionally deficient. Similarly, funding that is insufficient to support services at a minimum constitutional standard may itself be shown to be constitutionally deficient. There is nothing in the material filed on this application that would necessarily lead to the conclusion that the policy standards set and funding provided by the Government are at present sufficient either to mandate or to support more extensive provision of educational services on the basis of the Carlton Connection model than is now produced.
(pp. 18-19)

VII. "EDUCATIONAL MALPRACTICE"
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 courts. In two recent British Columbia case, 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 their 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 a recent 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 plaintiff’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 andchild 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 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 adopted the statement 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 quality’. 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.)



English Caselaw
X (minors) v. Bedforshire County Council, [1995] 3 All E.R. 353 (H.L.)
The first plaintiff brought an action alleging that the defendant 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. Breach of the education authority’s statutory and common law duties was alleged and damages claimed 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 defendant error in failing to report him for a formal assessment of his learning difficulties or to an educational psychologist for his difficulties and the 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. Both plaintiffs’ statements of claim had been struck out as disclosing no reasonable cause of action. in regard to the allegations of breach of statutory duty; the claims with respect to negligence were found to be not unarguable or incontestably bad and were allowed to proceed.

In actions for breach of statutory duty simpliciter a breach of statutory duty will not by itself be sufficient to give rise to any private law cause of action. Such an action would only arise if it could be shown, as a matter of construction of the statute, that the statutory duty was imposed for protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. Whether the statute provided remedies for its breach and whether on the true construction of the statute it was shown that the protected class was intended by Parliament to have a private remedy were indicia of whether a private law cause of action lay for breach of a statutory duty.

The mere assertion of a careless exercise of a statutory power or duty was not sufficient in itself to give rise to a private law cause of action. The plaintiff must also show that the circumstances were such as to give rise to a duty of care at common law. In determining this, the manner in which a statutory discretion was or was not exercised had to be distinguished from the manner in which the statutory duty was implemented in practice. Nothing the authority did within the ambit of the discretion could be actionable at common law, but if the decision was so unreasonable that it fell outside the ambit of the discretion conferred on the authority, that could give rise to common law liability. Furthermore, there was no common law duty of care in relation to the taking of decisions involving policy matters, since the courts could not adjudicate on such policy matters and therefore could not reach the conclusion that the decision was outside the ambit of the statutory discretion. Thus, a claim alleging negligence in the exercise of a statutory discretion involving policy considerations would pro tanto fail as being non-justiciable. If, however, the claim was justiciable then the ordinary principles of negligence (whether the damage was reasonably foreseeable, whether there was proximity of relationship between the parties and whether it was fair, just and reasonable to impose a duty of care) applied.

The Court found that the claims based on breach of statutory duty were rightfully struck out. 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 of claims for breach of 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. 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.

In this regard, the Court noted that parents 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 availed themselves of the advantages of the statutory scheme, in the generality of 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 a factor in the present 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 the case of parents or a child who have. Based on the risk that many hopeless (and possibly vexatious) 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, 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.

In my judgment a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. The education of the pupils is the very reason for which the child goes to school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a head master in relation to such educational needs. If it comes to the attention of a headmaster that a pupil is under-performing, he does owe a duty to take such reasonable steps as a reasonable teacher would consider appropriate to try to deal with such underperformance. To hold that, in the circumstances, the head teacher could properly ignore the matter and make no attempts to deal with it would fly in the face, not only of society’s expectations of what a school will provide, but also of the fine traditions of the teaching profession itself. If such a head teacher gives advice to the parents, then in my judgment, he must exercise the skills and care of a reasonable teacher giving such advice.

Similarly, in the case of an advisory teacher brought in to advise on the educational needs of a specific pupil, if he knows that his advice will be communicated to the pupil’s parents he must foresee that they will rely on such advice. Therefore in giving that advice he owes a duty of care to the child to exercise the skill and care of a reasonable advisory teacher.
(pp. 375-396)

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.



CONCLUSION
Due to the courts' reluctance in Canada to embrace the concept that a student, or a parent, can bring an action for a school board's negligence in providing, or failing to provide, an appropriate education to a special needs child, the best tool that parents and their special needs children have in attempting to obtain an appropriate education in Canada at this point is clearly the Charter.

The Department of Education's Special Education Policy Manual, which has the effect of law, provides that "School Boards are required to provide an appropriate education for all students who reside within their jurisdiction who are of school age." (Policy 1.5) By relying on the right of every individual to have the equal benefit of this law and the right not to be discriminated against on the basis of either physical or mental disability, parents should be in a position to resort to the courts, when necessary, to obtain an education appropriate to their individual child's needs. It will be very interesting to see what happens in the case of the lawsuit by the parents of the autistic child in this regard.

Please note that this topic of Educational Malpractice and its current trends will be updated in the near future in a seperate post at A Primer for Special Needs and the Law .


See Also
The IPP Appeal Process,
The Tort of Educational Malpractice ... Does it Exist in Canada?
Educational Malpractice Revisisted