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Respectful and Responsible Relationships, There's No App for That - Report of the NS Task Force on Bullying and Cyber Bullying

Respectful and Responsible Relationships, There's No App for That - Report of the NS Task Force on Bullying and Cyber Bullying

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01/18/2013

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School boards and in more limited ways Education departments do owe duties of care to
the students under their care and supervision. The most relevant area of law is the law of
negligence which in simple terms requires individuals and agencies, such as school boards
and departments of Education, to take reasonable steps to counter foreseeable risks of
injury to those to whom a duty of care is owed. Under the Nova Scotia Education Act as
with all such statutes in the country there is a statutory duty to attend to the care and
safety of the students within their control. These statutory duties are also supplemented by

common law duties of reasonable care in accordance with the standard of the “reasonable
and prudent parent.” This standard is an echo of earlier days when the basis of school
jurisdiction was in loco parentis. While this older approach has largely been replaced by a
model that treats teachers and other school board staff as state agents rather than
temporary parents, the “careful (or reasonable) and prudent parent” remains the standard
for purposes of civil negligence suits (see Appendix I for more details) 93.

Even though the
individual acts of negligence may be those of school board or department employees, in
most cases the employer has indirect or vicarious liability for their employees’ action or
omissions within the course of their employment.

Whether schools boards or the Department of Education can be sued for failing to protect
students from bullying is a matter of civil law and the extent of the duty owed to students
to be educated in a safe and non-discriminatory environment. These matters fall within
provincial jurisdiction as a matter of property and civil rights in the province. Schools also
fall clearly within provincial jurisdiction. If the bullying conduct crosses the line into
criminal intimidation or harassment, it becomes a matter for the federal government under
the Criminal Code (as discussed earlier). Cyberbullying which can cross many boundaries
and implicates various forms of telecommunications has both federal and provincial
dimensions. The most effective responses occur when the various levels of authority work
together to make our schools safer places.

When things go wrong and school authorities do not take the reasonable steps needed to
protect students from foreseeable risks such as bullying and cyberbullying, parents are
increasingly considering negligence lawsuits. It is important to note that school boards
cannot and are not legally required to guarantee the safety of their students but they do

93

W MacKay & L Sutherland, Teachers and the Law, 2d ed (Toronto: Emond Montgomery Publications
Ltd, 2006) at chapters 1, 2.

55

have a duty to take reasonable steps to ensure a safe school environment. It should also be
emphasized that lawsuits are an expensive and blunt instrument for getting action on
bullying and that there are many actors besides school boards and departments of
Education that have duties to keep children safe, including parents. Nonetheless, there is a
growing trend to pursue lawsuits as one course of action94
.

During the September 2011 public hearings of the Task Force Dr. Robert Konopasky
made a presentation advocating negligence lawsuits based on failure to respond properly
to the foreseeable risks of bullying and cyberbullying in Canadian schools. He, on behalf
of himself and his co-authors, argued that such lawsuits would be a catalyst for better
measures to prevent or at least reduce bullying in schools, because of the large
compensation awards that might be awarded against school boards95

. Dr. Konopasky and
his co-authors also suggest that the language of “bullying” as opposed to language such as
“assaults or harassment” is too soft and that the discourse of childhood and morality

should be replaced by the tough language of law.

Whether or not one agrees with this assessment, lawsuits are a possibility and even a
reality that underscore the need for school authorities to take the problems of bullying and
cyberbullying even more seriously than they have to date. In North Vancouver School
District v Jubran
the relevant school board was found liable under the human rights code
for failing to take proper preventive measures and engage in school wide education in
respect to discriminatory bullying on the basis of sexual orientation.96

This case was
pursued as a human rights complaint rather than a negligence claim, but by either route
when the claimant wins the school board or other relevant educational authority must pay
in both time and money.

Of course most school boards and the Nova Scotia Department of Education are pursuing
avenues for reducing bullying and cyberbullying and the next chapters of this Task Force
Report will focus on the importance of preventative programs and education as preferable
to post facto sanctions. Before turning to what can be done under the Nova Scotia legal
framework for education and how it can be improved, we will take a brief glance at some
comparative jurisdictions. Because of the limits of time and space, the Task Force will
deal with only three jurisdictions, although the bullying problem is a worldwide
phenomenon.

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