• Continued from Part 1.

Parents of students have a right to be informed of their child's progress. The School Regulation requires five progress reports a year of which three must be in writing.

Parents also have the option of setting up a "parents' advisory council' which, once set up, can be a valuable tool to advise the board on a wide-range of school-related issues.

Another area of the law worth exploring is section 10: "If property of a board is destroyed, damaged, lost or converted by the intentional or negligent act of a student, the student and the student's parents are jointly and severally liable to the board in respect of the act of the student."

classroom sceneIn a 1998 BC Supreme Court decision, Coquitlam School Board v Clement, the court decided that there was no joint and several liability under s. 10 of School Act when the student was not enrolled at the time of causing the damages:

"The question is whether liability under s.10 should be imposed in a case where the student is neither enrolled in the school nor involved in a school activity or educational program when the Board property is damaged. 

"In my view it should not. I believe that consistency with the legislative intent as outlined in the referenced sections requires that there be some nexus between the student and Board property damaged. S.10 must, in my view, be interpreted to impose joint and several liability upon a parent only where that damage occurs during an activity somehow connected with the educational program.

"Clearly, liability under s.10 attaches where a student damages property at his own school during school hours. This statutory liability would also exist where a student damages his own school even outside of the regular class hours. Section 10 would also be engaged in my view, if the damage was inflicted by a student upon any other board school, provided that such damage could be said to be reasonably related to an educational program. This would, as an example, cover travelling school teams.

"In summary, I believe that s.10 is engaged if the student is enrolled in the school in question or is at the relevant time enrolled in an educational program and acting in some connection therewith at the time the school board property is damaged."

School Staff

School boards give administrative day-to-day responsibilities and duties to "administrative officers" such as school principals. The duties of the "administrative officers" are set out in the Act and School Regulation and include reporting on the work of teachers, teacher evaluation or discipline, teacher timetables and the conduct of the students including, where necessary, student discipline.

Child school workMost of the contact between students, their parents and the education program occurs between the student and the teacher. The law recognizes the unique responsibility of the teacher and puts them on a pedestal as far as their behaviour is concerned. In Board of School Trustees District #46 and Sunshine Coast Teachers' Association, the judge wrote:

"Teachers are the custodians of a trust. The community entrusts to them the responsibility, in some respects awesome in its implications, and the privilege of sharing in the nurturing and, as the School Act puts it, promotion or the intellectual, human and social development of its children. In the circumstances there is in our view to be expected, indeed demanded of teachers that they display 'the punctilio of an honour the most sensitive" and conduct themselves 'at a level higher than that trodden by the crowd.'" 

The duties and responsibilities of the teacher have always been of great societal concern.

In Education Law, the authors, at page 208, reproduce an excerpt of the teacher's contract circa 1915:

"... not to keep company with men; to be home between the hours of 8pm and 6am unless in attendance at a school function; not to loiter downtown in ice cream stores; not to leave town at any time without the permission of the chairman of the board; and not to get in a carriage or automobile with any man except her father or brother."

A benchmark for teachers is the 1981 Supreme Court of Canada decision Myers v. Peel County Board of Education that said that:

"... the standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that of the careful or prudent parent. It is not, however, a standard which can be applied in the same manner and to the same extent in every case. Its application will vary from case to case."

Another is Abbotsford School District 34 v. Shewan where two teachers were suspended for nude pictures of themselves published in a magazine with their consent:

"Teachers must not only be competent, but they are expected to lead by example. A teacher must maintain a standard of behaviour which most citizens need not observe."

Needless to say, these principle have been the subject of countless court cases of which the following is just a sample:

EDG v. North Vancouver Board of School Trustees
Sexual assaults on student by the school caretaker brought criminal convictions against the caretaker but the Board itself escaped liability. The relationship between student and board was said to be fiduciary in nature but liability was not "no fault." No breach of duty was proven nor was the assault foreseeable.
Le Gallant v. Greater Victoria School District
Even where a teacher has been acquitted of criminal charges related to sexual assault on a student, a school board could still fire the teacher.
Catherwood v. Vernon Board of School Trustees
Student fell out of a tree while other students and teachers were playing baseball. The teachers had been careful but had not specifically warned the boy not to climb trees. The court rejected the liability of the teachers: "it is not the law that a schoolmaster must keep boys under supervision during every moment of their school lives." The court also noted that the teachers "could not possibly have anticipated or foreseen the action of the plaintiff."
Petersen v. Surrey School District #36
A teacher and school board were held liable for allowing students to stand where they might be hit by a flying bat where bat was old, slippery and not taped.

Plumb v. Cowichan School District #65
A student was hit by a baseball from an errant throw of a game of catch in which she was not participating. The judge declined to find liability because there was nothing inherently dangerous about the activity.

Ross v. New Brunswick District #15 Board of Education
The discipline of a teacher who, in his private, off-duty life publicly held anti-Semitic views, was upheld. Canada's highest court re-affirmed that teachers are held to a high standard and that this teacher, by his private views, had impaired the educational environment. "It is on the basis of the position of trust and influence that we hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant."

Teachers have been dismissed for pushing or being otherwise physically aggressive with students (West v. Red Deer although criminal charges of assault have failed in cases where a headlock, for example, was found to be "justified" and "not excessive" (R. v. Cyr).

In another case, a teacher was dismissed for failing to comply with religious principles where the employer was a religious (denominational) school (Kearley v. Pentecostal Assemblies Board of Education);

Courts will often look carefully at any applicable collective bargaining contract in reviewing disciplinary measures taken against a teacher.

The School Act states at §15 that a teacher may only be disciplined "for just and reasonable cause." Traditional labour law protections such as action for unjust or constructive dismissal may not work in a teaching environment because of the grievance and hearings procedures provided in the legislation, regulation or collective bargaining contracts (Patykewych v. Regina Roman Catholic Separate School and Morin v. PEI Regional Administrative Unit).

Mandatory retirement policies, in a school environment, are legal (Vancouver School District #39 v. Vancouver Teacher's Federation).

All school employees (not just teachers), it seems, are held to a high standard of behavior. In Salter v. Peace River South School District, a school board was found to be justified in refusing to employ a carpenter who had a previous record of drug trafficking (marijuana).

The School Act does not require a board to provide bus transportation or traffic patrols but once it decides to do so, it must do so without negligence.

 

 

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