Chapter 4 - Legal Liability

Introduction

All teachers have a legal and a professional liability and are governed by the Canadian Criminal Code and the law of torts or civil law in relation to their duty of care for students. Teachers’ professional liability occurs because their profession is governed by the Teaching Profession Act and the Education Act, and their conduct is subject to the Code of Professional Conduct and the general bylaws of the Alberta Teachers’ Association. For a detailed analysis of this liability, teachers are referred to the Association’s Monograph No 7, Teachers’ Rights, Responsibilities and Legal Liabilities. A copy of this monograph is available in every Alberta school.

In Loco Parentis

Traditionally, the teacher was considered to be acting in loco parentis. This means that in relation to the student, the teacher stands in the position of a caring, responsible parent and unofficial guardian. This concept allows the teacher some of the privileges of a parent but also brings with it added responsibilities for the protection of pupils. Thus, a teacher could be liable for injury or damages to a pupil if the teacher’s conduct falls below the standard of care deemed to be necessary under the given circumstances. In some instances, the duty of care owed by the teacher may exceed that of the parent if special knowledge makes the teacher aware of dangers that the parent might not appreciate.

In Parens Patriae

More recently, the teacher has been judged to be acting as an agent of the state or in parens patriae. The duties of teachers outlined in section 196 of the Education Act emphasize this role. (See also Teachers’ Rights, Responsibilities and Legal Liabilities.) Thus, the actions of teachers are often compared to those of law enforcement personnel, social workers and other public employees. The actions of a teacher must comply with the Child, Youth and Family Enhancement Act, the Youth Justice Act and legislation in the area of human rights.

Monograph No 7 provides further details in this regard.

The duty of care to individual students and the need to serve the best interests of the state has further complicated the already demanding role of the teacher.

Negligence

Negligence comes under the broader heading of tort law. The word tort means crooked or twisted. Generally speaking, a tort is a wrong committed by one person against another. Examples of wrongs are assault, harassment, defamation and negligence.

Negligence means not doing something a prudent and reasonable person would do or doing something a prudent and reasonable person would not do in a particular situation. It can be the subject of a lawsuit between persons whenever there is a duty upon one person not to be negligent and when a breach of that duty occurs and causes damage to another person. Negligence exists where the activity or conduct on the part of the teacher creates an unreasonable chance of danger. When teachers ignore danger or do not respond properly to danger when they should, they may be found negligent if someone is injured as a result.

Four elements must be present before negligence is established:

  1. The plaintiff has suffered some damage.
  2. The damage was caused by some act or omission of the defendant.
  3. The act or omission was one that a reasonable person behaving with ordinary prudence would not have committed.
  4. The defendant has a duty of care to the plaintiff with regard to that act or omission.

The extent to which the injured party contributed to his own damage would also be an issue in determining the amount of damages to be awarded.

Often, because they are expected to have expert knowledge about certain matters, teachers are held to a higher standard of care than parents. This is especially true in school situations that may be inherently dangerous (for example, the use of chemicals, machinery, appliances or apparatus, as well as student participation in complex activities).

Substitute teachers must be certain they have knowledge of the necessary skills and safety precautions associated with teaching a particular lesson that has inherently dangerous components. If substitute teachers do not have this knowledge, they are advised to use other relevant activities instead. The regular teacher and the school administration should be informed as to why the change in the lesson plan was made. The regular classroom teacher and the school administrators should be aware that they would very likely be named in a lawsuit brought on behalf of a student if injuries were suffered while a substitute teacher was implementing elements of a lesson plan he or she was not adequately trained to teach.

Insurance

Section 54 of the Education Act deals with powers of school boards. Among other matters, this section requires that every board carry liability insurance or make equivalent arrangements to cover its exposure, including the exposure of its employees.

54(1) A board shall, in respect of its operations, keep in force adequate and appropriate policies of insurance for the purpose of, at a minimum, indemnifying the board and its employees and school councils in respect of claims for

(a) damages for death or personal injury,(b) damage to property and . . .

Any claims, including lawsuits, against the board and/or any of its employees would be dealt with by the insurance company (or equivalent agency), providing the coverage required by this section of the act and the regulations developed pursuant to it.

Supervision

Substitute teachers are often expected to fulfill supervisory functions as part of their assignment. Substitute teachers should be certain that a system of supervision is established in the classroom or wherever an activity takes place to ensure that the instructions given to the pupils are obeyed. There is no expectation of having one supervisor for each pupil except in extremely dangerous activities. Teachers’ own experiences will normally give them a good idea of what level of supervision is required to ensure an adequate degree of safety.

The extent of supervision required depends upon the age, mental ability and emotional stability of the students being supervised. If there is a lack of supervision, it would have to be shown that the failure to supervise caused or contributed to the injury. Negligence will be determined by a judgment of what was reasonable in a particular set of circumstances. In any event, if the teacher is performing assigned duties, the school board’s liability insurance will provide the necessary protection in the event of a lawsuit, to the extent of the limits provided in the policy. Teachers providing service in high-risk situations should check the adequacy of coverage.

The substitute teacher might supervise students on a field trip. In this case, substitute teachers should check with the principal to be certain that the activity is school sponsored, in which case the school board’s liability insurance will cover normal liabilities. A number of schools require parents to sign a permission slip, which serves as a useful communication device but does not eliminate the possibility of liability arising out of untoward events occurring during the field trip. A permission slip does not give the teacher the right to commit a negligent act. Students must be instructed in advance on all aspects of safety during the field trip and all foreseeable dangers should be brought to the students’ attention.

It is important that the substitute teacher review both school and school board policies as they relate to field trips. Because a substitute teacher works in many different schools and sometimes in more than one jurisdiction, these policies may vary; therefore, it would be dangerous to make assumptions about what is an appropriate or accepted procedure. Substitute teachers must review all school policies and procedures before taking students on a field trip.

Student Discipline

One of the first steps taken by a substitute teacher when going to work in a new situation should be to become familiar with the discipline policy of the school and the school board.

Even though section 43 of the Canadian Criminal Code permits the use of reasonable force by teachers on students under their care, many school boards have banned the use of corporal punishment.

43. Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

Teachers must use approved procedures when disciplining students under their care.

All teachers should be aware of section 31 of the Education Act, which outlines the student responsibilities, and section 36(1), which provides legislative support for appropriate discipline policies and procedures related to section 31.

Assaults

Common Assault

There has been an enormous increase in the number of teachers accused of assault, both common and sexual, in recent years. The common assault allegations generally result from disciplinary action taken by a teacher. Section 43 of the Criminal Code notwithstanding, it is becoming more and more unacceptable for teachers to use force in disciplining students. Recent court decisions would indicate that corporal punishment may well become a thing of the past. In order for an action to constitute common assault, three elements must be satisfied: (a) lack of consent by the victim, (b) intent and (c) an application of force to the victim (or the threat of force that the victim believes will be carried out).

Sexual Assault

Sexual assault is defined as conduct that includes all of the elements of common assault plus one additional element: the assault is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated and/or the accused gained some sexual gratification from the act. The sexual nature of the assault must be detectable by an objective standard. It is not necessary that contact be made with the victim’s sexual organs or that the assaulting party’s sexual organs be involved. Even a pat on the behind can be a sexual assault if it is done to obtain sexual gratification or to violate the sexual integrity of the victim.

These offences are very broadly defined. It is easy to see how false allegations could be made in a wide variety of innocent student–teacher interactions. However, innocence may not save one from accusations, or even conviction.

Advice

What can teachers do to avoid these sorts of problems? Obviously, they should studiously avoid behaviour that would give rise to legitimate charges.

Many authorities, particularly those who deal with cases of this nature on a frequent basis, suggest that teachers should refrain from all physical contact with students. This runs counter to the beliefs of many teachers and to some educational theorists who believe that hugs and pats are important, positive acts. Each individual teacher will have to decide what is the best course of action. However, consistent behaviour with all students is good advice.

Here are some other prudent and useful tips:

1.    Be completely familiar with the school board’s and the school’s policies with respect to corporal punishment, and if you decide to use corporal punishment at all, do so in strict compliance with those policies.

2.    Document your discipline of students and any accidents that occur while you are on supervision. Such documentation should be retained in your permanent personal files; there have been many cases of accusations being made years later.

3.    Avoid being alone with students, particularly those in the early years of puberty. If you must be alone with a student, ensure that the door is open, that the window blinds or drapes are open and that the time is kept to a minimum. Let someone else know where you are and who you are with.

4.    Unless you have special training or an assignment in counselling, avoid counselling students who display signs of sexual, emotional or mental instability. At the very least, consult regularly with the teacher counsellor in the school or with someone else with expertise in this area and keep a record of such consultations.

If Accused

The primary rule in dealing with allegations of assault or sexual assault is remain silent. You have the right to do this under the Canadian Charter of Rights and Freedoms. This right is the best available protection. Do not waive this right until after you have seen a lawyer. You are required to identify yourself (name, address and birthdate) to the police. Beyond that, you should not volunteer any information or respond to any questions until you have sought and received legal advice.

As a teacher, you have access to legal advice on matters relating to your work. Contact the Association as soon as possible. In the meantime avoid discussing the situation with anyone else (other than your legal spouse). Discussing it with others may put them in the position of being called to testify against you.

Do not panic. While this may be a terrible experience, staying calm, listening to advice and taking the situation one step at a time will, at least, avoid making it worse.

Assaults Against a Teacher

An area of growing concern is the increased number of assaults on teachers. These assaults are most often perpetrated by students, but teachers have also been assaulted by parents, former students or others. The significance of these assaults must not be minimized, and teachers are advised to report all assaults and ensure that charges are brought against those responsible. The Association will advise and assist members who have been the victims of assault while performing their professional duties.

Professional Liability

As professionals, teachers are held to a higher standard of conduct than the general public. All teacher members of the Association are obliged to maintain professional conduct and to assist the Association in its duty to provide protection to the public and to the profession. The Code of Professional Conduct provides general guidelines for teachers to follow, but the scope of professional-conduct expectations goes far beyond the code. Teachers should be familiar with the code and with the responsibilities placed on them by the Teaching Profession Act. These responsibilities are contained in Appendix B and Appendix D. Substitute teachers should become familiar with these responsibilities and govern themselves accordingly. Note that adhering to the provisions of the Code of Professional Conduct is a 24-hour-a-day responsibility. Even when acting as a parent or a community member, all teachers must respect the standards of the profession. These provisions also apply to other teachers in their relationships with substitute teachers. The Members’ Handbook and the publication Teachers’ Rights, Responsibilities and Legal Liabilities include details about the steps to be taken if a teacher believes that another teacher has been guilty of unprofessional conduct. However, before taking any action, consult with the Association.

E-Liability

Teachers are expected to model ethical and appropriate conduct in their use of school computers, laptops, Internet connections and cellphones. This expectation extends to use of their own computers when posting on social networking sites.

Teachers are in a position of trust with students and can be held accountable if their actions expose students to inappropriate material or communications. The following cybertips for teachers should be kept in mind at all times.

Be Prudent

At work, do

  1. maintain exemplary professional standards when sending e-mail messages to students, parents, colleagues and administrators;
  2. always keep a copy of your e-mail messages; and
  3. use a signature that includes your name, assignment title and school name.

At work, don’t

  1. share your password with other colleagues or students or
  2. leave your computer on and unattended when students are around.

At home, don’t

  1. use your home/personal computer to contact students or parents;
  2. permit images of yourself to be taken and posted on any site without appropriate privacy safeguards;
  3. post criticism of colleagues, students or administrators on social networking sites; or
  4. share confidential information about students, colleagues or administrators on social networking sites.

Be Prepared

If you find yourself the target of cyberbullying, take the following steps:

  1. Make copies of all questionable messages/web postings/information and other related materials and data, including the URL.
  2. Demand that the sender stop transmitting or posting the material and state that the conduct is inappropriate and unacceptable.
  3. Avoid engaging with the person who is targeting you, because this may escalate the situation.
  4. Advise your school administration of the inappropriate communication if the situation requires immediate action and/or if the communication continues.
  5. Access appropriate support/guidance through the school district’s cyberconduct policy or manual.
  6. If the person who is cyberbullying you is a student, contact the student’s parents.
  7. Inform and involve your school-based occupational health and safety committee.
  8. Contact your ATA local if the actions taken to address the inappropriate communication are ineffective and/or if you need further support/advice.

Remember

Nothing is truly private when you use digital communication. When you are using board equipment and communication links, the board can access all your messages and online sites visited if any of the communication went through board servers or was accessed using board equipment.

These forms of cyberbullying are considered criminal acts:

  1. Communicating repeatedly with someone if the communication causes someone to fear for their own or others’ safety
  2. Publishing a defamatory libel—something that is designed to insult a person or likely to hurt a person’s reputation by exposing him or her to hatred, contempt or ridicule

Spreading hate or discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, or disability may be a violation of the Canadian Human Rights Act and/or provincial/territorial human rights legislation.

If there is a question as to whether the inappropriate communication is criminal, call the police. It may also be necessary to involve internet service providers (ISPs) and mobile telecommunications service providers in addressing the inappropriate communication to the point of deleting the offending material from temporary/permanent sites and archives.

Know Your Rights and Your Responsibilities

These activities can result in disciplinary action against a teacher:

  1. Visiting inappropriate websites, eg, adult content, racist, pornographic
  2. Sending or forwarding offensive jokes and pictures via e-mail
  3. Online gambling using school district equipment
  4. Downloading audio, video or text-based materials in violation of copyright laws
  5. Using board/employer equipment to engage in activities relating to a second occupation
  6. Constant text messaging, instant messaging and/or e-mailing during school time
  7. Posting pictures of yourself and sharing them over the Internet, especially if they are suggestive or inappropriate.

(Editor’s note: The material in this section on e-liability is adapted from the Canadian Teachers’ Federation; more information is available at www.ctf-fce.ca.)

 

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