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.)