School law varies from jurisdiction to jurisdiction, sometimes substantially. For this article, we have chosen to look closely at the structure in place in the Canadian Province of British Columbia.
Before going into this subject, surfers should know that the BC School Act is available online at http://www.qp.gov.bc.ca/statreg/stat/S/96412_00.htm.
The BC Teaching Profession Act is at http://www.qp.gov.bc.ca/statreg/stat/T/96449_01.htm.
Finally, the BC Ministry of Education maintains a decent website
The Constitution and School Boards
In Canada, education is a provincial legislative jurisdiction. So says section 93 of the Constitution Act, 1867: "In and for each Province the Legislature may exclusively make laws in relation to education....".
The Charter of Rights and Freedoms repeated this division of powers, at s. 29.
It is hard to argue with the statement that - other than maintaining peace and order - education is the most important function of government.
To put this into perspective, a 1989 case comes to mind, Salter v. Peace River South School District (1989) 10 CHRR, where the judge said that a school board is not just any ordinary employer but an employer "whose product is citizens."
The BC School Act describes an educational program as "an organized set of learning activities .... designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy."
Provincial governments have delegated much of the administration of the school system to regional school boards. The boards themselves have no inherent power whatsoever. Any powers they have must have been delegated to them by legislation; eg. the School Act.
The province of BC has been divided into zones known as "school district" and each one has a governing "school board" comprised of "trustees" who are elected from amongst the residents of that district, every three years.
"The trustees elected or appointed under this Act for each school district and their successors in office constitute a board of school trustees for the district and are a corporation under the name of "The Board of School Trustees of School District No. 1 (Fernie)" (or as the case may be)." (s. 65 School Act).
To assist in administering the schools contained within their district, boards often set up committees.
Boards are required to meet at least once every three months. Boards can pass by-laws (which must be subjected to three readings: s. 68 School Act) and their meetings are open to the public, although they can exceptionally hold private meetings (called "in camera") if "the public interest so requires." Boards can also expel unruly persons from their meetings; even individual trustees!
The board's primary responsibility is to manage all schools in its district. This includes opening and closing of schools and the delivery of "education programs to all persons of school age resident in its district." (s. 73, 74 and 75 School Act).
The board must provide "educational resource material" free of charge to all students, although they are allowed to require a deposit.
The board may charge fees for "goods and services provided by the board."
Needless to say, there has been litigation around what constitutes "educational resources material", for which a board may not charge, and "goods and services", for which a board may charge.
In a curious legislative drafting technique, the School Regulation says what are chargeable goods and services by defining what education resource material are not:
""educational resource material" does not include materials used in goods that are intended for a student to take home for personal use or as a gift; paper, writing tools, calculators, student planners, exercise books, computer diskettes and other school supplies and equipment for a student's personal use; and the rental of a musical instrument for a student's personal use."
In a 1997 decision of BC's Supreme Court MacDonald and Chamak v Greater Victoria School District, Justice Drake said that educational resources material would normally be "related specifically to classroom instruction":
"As a matter of common sense, (educational resource material) would be those which are fungible; goods which are consumed in the course of instruction in educational programs. Obvious examples of these materials are ... the wood used in carpentry classes, the food used in cookery classes and the materials used in other domestic economy classes: materials used in the teaching of science and arts and crafts, in general, within the curriculum of educational programs which lead to graduation.
"Since such courses are to be offered free of charge, it follows that the materials consumed in them must themselves be free of charge, as indeed is required by s. 100(1)(b) of the School Act. From the point of view of black letter law, these materials cease to be the property of the school board once they are furnished to the students in the course of their instruction."
Students and Parents
".... a person who is resident in British Columbia must enroll in an educational program provided by a board on the first school day of September of a school year if, on or before December 31 of that school year, the person will have reached the age of 5 years, and participate in an educational program provided by a board until he or she reaches the age of 16 years...." (s. 3(1) School Act).
The Act allows a parent to delay the entry into school by one year, such that a student may be six years old upon entry. The Act also allows "home education" but requires registration of the home-educated child by a school. The Act punishes people for not registering their child (they could be charged with an offense).
One Albertan father tried to argue that it was his God-given right to educate his children however he saw fit and challenged the principle of mandatory schooling all the way to the Supreme Court of Canada. The Supreme Court was not clear in its decision but the gist of it was that while mandatory education may infringe upon basic freedoms, that the infringement was justifiable (R. v. Jones, (1986) 2 SCR 284).
A student is expected to enroll in a school contained within their school district. Students must also comply with school rules or codes of conducts.
In Lutes v. Prairie View School Division #74 (1992) 101 Sask R 232, a judge found that a student continued to be under the school's supervision (and therefore susceptible for discipline for conduct outside the rules of conduct) during lunch hours; from the time he got on the school bus to attend school to the time he descended the school bus at the end of the school day.
"All schools and Provincial schools must be conducted on strictly secular and non- sectarian principles. The highest morality must be inculcated, but no religious dogma or creed is to be taught in a school or Provincial school. The discipline of a student while attending an educational program made available by a board or a Provincial school must be similar to that of a kind, firm and judicious parent, but must not include corporal punishment." (s. 76 School Act)
Students share several rights with their parents such as access to their school records and the right to appeal any decision made by a teacher or the principal which "significantly affects" their education, health or safety, to the board. They also share the right to consult with the teacher on the education being provided.
One case worth mentioning is Fairchels v. West Vancouver School District in which Justice Curtis of BC's Supreme Court, in 1996, had an opportunity to comment on what is a "school record", and subject to copy, and what is not:
"In my opinion "all student records kept by a board pertaining to that student" in that section do not include all the student's quizzes, tests and exams. I interpret that section to refer to the formal record of grades and results, attendance and other similar matters of record.
"I accept that there is a genuine policy reason for schools to have a discretion as to whether examinations are returned to the students or not. It is often necessary to retain possession of examinations so that questions that may be used for other tests in the future are not compromised by wide circulation amongst the students. So long as the teacher is prepared to go over the exam with the student once it is marked, the student has the necessary opportunity to learn from the examination process. This was the policy of (the) school and this was offered to (the student and the parent). If (they) chose not to take this opportunity any prejudice caused thereby to his education was not caused by the defendants.
"Matters of educational policy are best determined by professional educators or if necessary the school boards on the advice of professional educators following public debate, rather than on the basis of an allegation of individual rights in a court action involving a particular student."
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."
In a 1998 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 traveling 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.
Most 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 behavior is concerned:
"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."" Board of School Trustees District #46 and Sunshine Coast Teachers' Association, 1996.
The duties and responsibilities of the teacher have always been of great societal concern.
In Education Law, a 1994 publication of Carswell Law Books by lawyers A. Brown and M. Zuker, 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 decision ((1981) 2 SCR 21) 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 (1987) 21 BCLR (2d) 93 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 BC Supreme Court, 1998.
- 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 (1987) 16 BCLR (2d) 155
- 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 BC Supreme Court 1996
- 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 (1993) 84 BCLR (2d) 109
- 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 (1993) 83 BCLR (2d) 161
- 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 (1996) 1 SCR 825
- 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 (1993) Alta. LR (3d) 93) 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 (1991) 138 NBR (2d) 252).
In another case, a teacher was dismissed for failing to comply with religious principles wher the employer was a religious (denominational) school (Kearley v. Pentecostal Assemblies Board of Education (1993) CHRR D/473);
Courts will often look carefully at any applicable collective bargaining contract in reviewing disciplinary measures taken against a teacher.
The School Act states at s. 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 (1996) DLR 131 (4th) 301 and Morin v. PEI Regional Administrative Unit #3 (1995) 125 NF&PEIR 211).
Mandatory retirement policies, in a school environment, are legal (Vancouver School District #39 v. Vancouver Teacher's Federation (1995)).
All school employees (not just teachers), it seems, are held to a high standard of behavior. In Salter v. Peace River South School District #59 (1989) 10 CHRR D/6150, 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.
This general legal information is provided free of charge by Lloyd Duhaime (practising law with Duhaime Law), Barrister & Solicitor, situated in Victoria, British Columbia, as a public service. This is not legal advice but, rather, general legal information.
I have truncated some of the case summaries and, in any event, the law can change instantly with new cases being brought down or new laws being ratified. Consequently, this information is shared with the public on the condition that to it is attached no warranty whatsoever with regards to its accuracy and any use in actual legal situations in done entirely at the sole risk of the user.
Lloyd Duhaime, Victoria, British Columbia, May 17, 2007.