Students’ minority language educational rights

1. Supreme Court of Canada, “Case in Brief: Conseil scolaire francophone de la Colombie-

Britannique v British Columbia,”2020 SCC 13, online: https://www.scc-csc.ca/case-
dossier/cb/2020/38332-eng.aspx

Section 23 of the Charter outlines the right to go to school in English or French, even when it
isn't the main language of the province or territory.
● There needs to be enough children in a community to justify having minority
language schools, but Section 23 does not say exactly how many children is
'enough'

The Conseil scolaire francophone de la Colombie-Britannique is the French school board in BC,
and they argue that BC hadn't done enough for French-language schools in the past.
● They wanted the government to
○ Fix school buildings and property
○ Build new schools due to increased French-language students
● They argued that the government's laws and policies breached French community's
language rights under Section 23

BC ruled that there weren't enough students to build new schools, and the old ones were good
enough. They said it would cost too much to provide all services that were being asked for.

They did say, however, that in some parts of BC, there were enough children for a new school.
By not providing these schools, BC breached the rights of the French-speaking community
under Section 23.
● Instead of building new schools, BC trial judge ruled that they would have to pay $6
million in damages for not funding school buses.
● Court of Appeal said the government did not have to pay the $6 million.

At the Supreme Court level, majority of judges said the lower courts interpreted Section 23 of
the Charter too narrowly
● Said that minority-language students (in this case, French) should get their own
school if the government gave one of the same number of majority-language
speakers elsewhere in the province.
● There were enough students in BC to justify 8 new French-language schools.
● Also said that governments can't avoid paying damages for decisions based on their
policies.
○ BC had to pay the $6 million for not funding buses
○ BC also had to pay $1.1 million because they had not given the school
board enough money for rural schools
Students’ (and parents’) freedom of religion

2. L(S) c Des Chênes (Commission scolaire), 2012 SCC 7 (CanLII),

<http://canlii.ca/t/fq4b5> at paras 1-43.

S.L. v. Commission scolaire des Chênes

· Children of SL in catholic school

o New ethics and religious culture program (ERC) were implemented to replace
existing Catholic and Protestant programs of religious and moral instruction
o Challenged that this infringed on their freedom of religion
o Wanted to pull children from current program
o ERC wanted to give “objective presentation of various religions” to children in
schools
· Courts below
o Superior court judge found school board decision as valid
· Issues
o Did the trial judge err on the infringement
· Background
o Minister of education wanted religious diversity was taken into account in the
courses taught, adjusting for current diversity in Quebec
· Applicable principles
o In the past Canadian courts have held that state sponsorship of one religious
tradition amounts to discrimination against others
o So when considering an infringement of freedom of religion, the question is
not whether the person sincerely believes that a religious practice or belief
has been infringed, but whether a religious practice or belief exists that has
been infringed
· Application
o Has the appellants’ ability to observe the practice been interfered with in this
case
o Stated that absolute neutrality does not exist
o Argues that the early exposure of children to realities that differ from those in
their immediate family environment is a fact of life in society
o Appeal dismissed –
 3. Multaniv Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII),
<http://canlii.ca/t/1mnj2> at paras 1-14, 32-83.

● Gurbaj Singh Multani is an elementary school student who is also an orthodox Sikh
whose kirpan fell out of his clothes in the school yard
● A kirpan is a religious object that resembles a dagger and must be made of metal.
● The School board agreed with Gurbaj and his parents to accommodate as long as the
kirpan was safely stored.
● The Governing board refused to accommodate because it violated Code de vie (code of
conduct) which prohibited the carrying of weapons
● The Superior Court granted the motion, declared the decision to be null, and authorized
Gurbaj to wear his kirpan under certain conditions.
● The Court of Appeal restored the council of commissioners’ decision.
● The decision in question infringed Gurbaj’s freedom of religion under s. 2 (a) of the
Canadian Charter of Rights and Freedoms but was justified in s. 1 of the Canadian
Charter
s.2 Canadian Charter of Rights and Freedoms
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
s.1 Canadian Charter of Rights and Freedoms
Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
● The school board’s council of commissioners upheld that decision and notified Gurbaj
and his parents that a symbolic kirpan in the form of a pendant or one in another form
made of a material rendering it harmless would be acceptable in the place of a real
kirpan.
● Gurbaj’s father Balvir then filed in the Superior Court a motion for a declaratory judgment
to the effect that the council of commissioners’ decision was of no force or effect.
Ratio Decidendi
● The council of commissioners’ decision prohibiting Gurbaj from wearing his kirpan to
school infringes his freedom of religion.
● Gurbaj genuinely believes that he would not be complying with the requirements of his
religion were he to wear a plastic or wooden kirpan, and none of the parties have
contested the sincerity of his belief.
● The interference with Gurbaj’s freedom of religion is neither trivial nor insignificant, as it
has deprived him of his right to attend a public school.
● The infringement of Gubaj’s freedom of religion cannot be justified under s. 1 of the
Canadian Charter
● Although the council’s decision to prohibit the wearing of a kirpan was motivated by the
objective to ensure a reasonable level of safety at the school, and although the decision
had a rational connection with the objective, it has not been shown that such a
prohibition minimally impairs G’s rights.
 ● The risk of Gurbaj using his kirpan for violent purposes or of another student taking it
away from him is very low, especially if the kirpan is worn under conditions such as were
imposed by the Superior Court.
● Gurbaj has never claimed a right to wear his kirpan to school without restrictions.
● There are many objects in schools that could be used to commit violent acts and that are
much more easily obtained by students, such as scissors, pencils and baseball bats.
● The evidence also reveals that not a single violent incident related to the presence of
kirpans in schools has been reported.
● The argument that the wearing of kirpans should be prohibited because the kirpan is a
symbol of violence and because it sends the message that using force is necessary to
assert rights and resolve conflict is not only contradicted by the evidence regarding the
symbolic nature of the kirpan, but is also disrespectful to believers in the Sikh religion
and does not take into account Canadian values based on multiculturalism.
The Outcome
● Because there was no evidence of violence relating to the kirpan, the motion was
granted for a declaratory judgment which authorized Gurbaj Singh to wear his kirpan at
school on the following conditions:
● the kirpan be worn under his clothes
● the kirpan be carried in a sheath made of wood, not metal, to prevent it from causing
injury;
● the kirpan be placed in its sheath and wrapped and sewn securely in a sturdy cloth
envelope, and that this envelope be sewn to the guthra
● school personnel be authorized to verify, in a reasonable fashion, that these conditions
were being complied with
● the petitioner be required to keep the kirpan in his possession at all times, and that its
disappearance be reported to school authorities immediately
● in the event of a failure to comply with the terms of the judgment, the petitioner would
definitively lose the right to wear his kirpan at school.
Impact on Canadian Law
● The Supreme Court of Canada considered when to recognize a particular practice as a
religious requirement.
● This decision then dealt with the appropriate method for accommodating religious
practice in a multicultural society. The school board argued that it had to protect the
safety of the rest of the students even if this meant infringing the rights of this one
student.
● The court, rejecting this argument, made it necessary to find reasonable ways to
accommodate different religions, even in schools, and to balance different rights.

4. Servatius v Alberni School District, 2020 BCSC 15 (CanLII), <http://canlii.ca/t/j4fvx> at

paras 1-108.

Servatius v. Alberni School District No. 70

(Supreme Court of British Columbia)

· Petitioner is an evangelical Christian – concerning her children attending school that

witnessed an Indigenous dance performance, in the midst of which the dancer said a
prayer
o Said the above interfered with the religious freedoms of herself and her
children guaranteed by the Charter of Rights
· Parties and procedure
o Believes that her children’s participation in the event takes issue with her
current Christian beliefs
o School district argues that students were only observing and not participating
thus no infringement
o “In argument, the School District took a procedural point, arguing that the
petition was an abuse of process because the petitioner had not exhausted
the School District’s administrative process for appealing decisions of its
employees
o Petitioner characterizes the event as compelled participation in state-
sponsored religious exercises
· Backdrop of social facts
o To be clear courts must take judicial notice of such matters as the history of
colonialism, displacement, and residential schools and how that history
continues to translate into lower educational attainment, lower incomes,
higher unemployment, higher rates of substance abuse and suicide, and of
course higher levels of incarceration for Aboriginal peoples
o Speaks to the value that Indigenous population provided towards the
development and transitioning of the economy of BC in the 18th and 19th
centuries
o Historical effects of residential schools pervade within modern day indigenous
communities and populations
· Adjudicative facts: What happened at JHES
o Smudging is contested to have been done onto student or just in general as a
event
o Petitioner continues arguing about the forced participation in
spiritual/religious practices aspect
o Superintendent says that the education system goals include seeking a greater
understanding and awareness of aboriginal history, culture and traditions…
school district did not agree what happened was a religious activity
· The Charter Right to Freedom of Conscience and Religion
 o To establish that infringement occurred is to show a breach of “state
neutrality” with respect to religion
· Discussion and analysis
o Petitioner argues that hosting spiritual events and thus breaching the state’s
duty of neutrality
o Metaphorical space that matters not the physical space, challenging the idea
of the classroom being a safe space
o The organization of these events reflected a gathering momentum to
incorporate the teaching of Indigenous worldviews and perspectives
o The Nuu-chah-nulth practice of smudging is not religious (decided by judge)
therefore not breach of state neutrality
o Due to actual course of events, no compelled participation was found –
previous supreme court ruling suggests that that mere presence does not
constitute proof on an objective basis of interference with the ability to act in
accordance with religious beliefs

5. ET v Hamilton-Wentworth District School Board, 2017 ONCA 893 (CanLII),

<http://canlii.ca/t/hnz2n> at paras 1-101
- Appellant E.T. is a Greek Orthodox Christian who had put forth that his and his
children’s freedom of religion was being infringed based on being introduced to
“false teachings” (para. 2).
- The Board had offered to exempt the students from explicit lessons that covered
E.T.’s concerns, but could not entirely allow E.T. to know about all “false
teaching” encounters because of the multi-cultural nature expressed and
designed throughout the curriculum.
- Justice Sharpe states that
- “Exempting some students on a regular basis from classroom discussions
touching on diversity, inclusivity and acceptance, within a public school
program designed to promote those principles, would run a serious risk of
endorsing the non-acceptance of students of other family backgrounds,
sexual orientations, gender expressions and gender identities.” (Para. 37)
- “it would be unrealistic to expect teachers to anticipate discussions of all
such subjects in class and to vet all teaching materials in search of any
endorsement of family structures, relationships or other matters that are
contrary to E.T.’s subjective view of biblical teaching, particularly as E.T.’s
subjective view of biblical teaching, particularly as E.T.’s list includes such
nebulous topics as “moral relativism”.” (para. 39)
- Justice Lauwers states that
- The appellant has not put forward any objective evidence that the school
board’s decision to refuse accommodation is functioning to undermine his
 ability to transmit the precepts of his religion… there is no evidence that
his children have experienced negative teacher “value judgements” of the
sort he fears, over the many years this case has been pending… the lack
of such evidence is fatal to the appellant’s appeal, which must be
dismissed on that basis.” (para 97)
- “Dismissing this appeal does not, however, give the s. 169.1 program a
clean constitutional bill of health.” (para. 98) “It would not be hard to
imagine that a tweak to the program would pose a problem, or to imagine
a teacher actively using both the force of personality and approved
curriculum materials to undermine the faith commitments of students,
which could make the provision of accommodation necessary. But this is
not the case here”. (para. 100)

Students’ (and parents’) freedom of expression

6. Pridgen v University of Calgary, 2010 ABQB 644 (CanLII), <http://canlii.ca/t/2cxd9> at

paras 1-15 and 70-83, aff’d 2012 ABCA 139.

Background
- Two uofc students, Keith and Steven Pridgen posted negative/critical comments about
their professor (Professor Mitra) on another students facebook wall. The professor found
out and went to the dean about it.
- The University's General Faculties Council Review Committee found that the students
had committed non-academic misconduct
- Keith and Steven Pridgen and 8 other students were invited to this meeting to
discuss the incident.
- All ten students were found to have committed non-academic misconduct
- Both students were given letters that stated sanctions and conditions for them.
- Keith Pridgen was placed on a probation period for 24 months
- Steven Pridgen was not placed on probation
- The letters also indicated that the sanctions could be appealed to the General
Faculties Councils Review committee.
- (Both students indicated that they would appeal)
- The students were then given letters that stated that a Review Committee would review
and look over the decisions made by the interim dean.
- Both students were found to have committed non-academic misconduct
- Keith Pridgen was placed on a probation period of six month
- Steven Pridgen was placed on a probation period of four months
- Since they were on probation, making an appeal to the Board of Governors was not an
option for them.
- The applicants (Keith and Steven) then applied for judicial review and stated that the
decision made infringed on their charter rights
- Section 2(b) - freedom of expression & Section 2(d) - freedom of association
Were the applicant's charter rights infringed?
- Judge determined that the university is not a charter free zone. The charter applies to
the way the university applies and interprets policies.
- This means the students are protected under the Charter.
- Section 2(b) purpose:
- “The purpose of the guarantee is to permit free expression in order to promote
truth, political and social participation, and self fulfilment” (p16).
- “Court has held that so long as an activity conveys or attempts to convey a
meaning, it has expressive content and prima facie falls within the scope of the
guarantee of freedom of expression” (p.16).
- Court has a two-step enquiry process to see if an individual's freedom of expression has
been infringed upon
1. “determining whether the individual's activity falls within the freedom of
expression protected by the Charter” (p.16)
a. The Judge ruled that this step was met because both the Facebook posts
have expressive content and convey meaning.
2. “determine whether the purpose or effect of the impugned government action is
to restrict that freedom” (p 16)
a. (in other words, determine if the order/decision made by the review
committee actually restricted the Applicants freedom of expression)
b. The decision made by the Review Committee was to sanction the
Applicants and prohibit them from sharing their critical views regarding
their Professor.
c. Judge determined that the purpose of this order/decision was to restrict
the Applicants freedom of expression, violating section 2(b) of the
Charter.

- Now, the issue is if the infringement was justifiable under section 1 of the Charter
- Section 1 states “The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society” (p 17).
- There are two criteria that must be met in order to determine if a limit on a Charter right
is reasonable and demonstrably justified
1. “the objective, which the measures responsible for a limit on a Charter right or
freedom are designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom" (P.17)
2. “Once a sufficiently significant objective is recognized, then the party invoking s.
1 must show that the means chosen are reasonable and demonstrably justified
(P.17).
a. University of Calgary “argues that freedom of expression is not an
unqualified right. It submits that defamatory speech is not entitled to
constitutional protection given its negative effect on reputation. As such, it
argues that limitation of speech which harms someone's reputation is
consistent with the values of freedom of expression” (P.18)
Conclusion
- Although the University was following the Policies created and formed in regards to a
respectful learning environment, the Judge still believes the “measures adopted by the
Review Committee of disciplining the Applicants for making critical comments regarding
Professor Mitra on the Facebook wall were excessive” (P. 18).
- Judge states that “I cannot accept that expression in the form of criticism of one's
professor must be restricted in order to accomplish the objective of maintaining an
appropriate learning environment” (p.18).
- Students should not be stopped from expressing critical opinions when it comes
to the quality of teaching they are receiving. Instead, the University should
encourage students to be open and honest about professors' teaching abilities
(even if the comments are unfavourable and critical). This will also help future
students in their course selections.
- The University did not show the Review Committee application of the Policy impairs the
right to freedom of expression no more than is necessary. Therefore, the Judge ruled
that the Review Committee's decision did in fact infringe the Applicants right to freedom
of expression.

7. Elkow v Sana, 2015 ABQB 803 (CanLII), <http://canlii.ca/t/gmnjt> at paras 1-35, 82-223

Background
- Plaintiff = Laurie Diane Elkow. Principal of Jackson Heights School in Edmonton.
- Defendants = Najmeya Sana and Arif Sana. (the parents of four children who attend the
school)
- The dispute between the plaintiff and defendants began on April 21, 2004. Mr. Sana was
involved in an argument with the parent of another child. The other child's parents went
to Ms. Elkow and asked her to call the police due to the incident. Ms. Elkow refused to
do so because the incident did not occur on school property. Mr. Sana went to Ms.
Elkow and asked her to contact the police about “racist comments” that were made to
Ms. Sana. Mr. Sana then went to Edmonton police and the other parent also showed up.
Mr. Sana says the other parent said he was sent to the police office by the Plaintiff.
- *Mr. Sana denied involvement in any of the other events that followed*
- Incident Two: Kids and rain
- Ms. Sanas children were waiting outside in the rain to be picked up when they
decided to wait inside. They were then told by two staff members to go outside
and wait “because the school carpet would become dirty”
- Ms. Sanas daughter states “This incident was some kind of message for
my mother from Elkow”
- Incident Three: Math test
- According to Ms. Sanas daughter, Ms. Elkow interrupted her during a math test
and spoke to her angrily in the hall and asked why she told her mother about her
treating them so strangely.
- Meeting occurred on May 4 and Ms. Sana left angrily.
 - “According to Ms. Elkow, Ms. Sana sad that “I will make my concerns public”, “I
will see Mr. McBeath (Superintendent of the Edmonton Public Schools) and ask
him why he has such a principal in the school”, and “You are not a qualified
principal and you will lose your job. I will make sure you are fired”.”(p.4)
- According to Ms. Sana, this meeting went differently. “The Plaintiff was agitated
and yelled at me. The Plaintiff told me I wasted her time and that I was no longer
allowed to come to the school” (p.4).
- Ms. Sana then began a campaign to have Ms. Elkow removed as a principal of the
school.
- Ms. Sana was then given a “Trespass Notice” under the School Act. This first only
applied to the School and School grounds but then was extended to include “any
building owned or operated by Edmonton Public Schools”
- Ms. Sana was charged with trespass on Sept 15 2004 and convicted of that in May
2005.

Ms. Elkows allegations of defamation arise out of the following:

- *Various letters, meetings and statements that are listed on page 4-5.

Defences of Ms. Sana

- Ms. Sana denies acting in a way that could have caused harm to Ms. Elkow, her
feelings, or reputation.
- Ms. Sana’s defence rests on truth, justification, qualified privilege and fair comment.

Defamatory meaning
- Since not all untrue statements are defamatory, the plaintiff is required to establish that
the words published about them were untrue as well as lowered their reputation.
- In this case, the judge stated “Allegations of criminal behavior, racial discrimination, lying
and abusing children all bear a defamatory meaning and tend to lower any person’s
reputation. That is especially so in the context of a school principal” (P 11).

Fair comment
- Fair comment is used as Ms. Sanas defence. She states her speech was protected
because she was exercising her right of free speech.
- Fair comment is an aspect of freedom of expression.
- However, the defence of fair comment has little application in this case.
- Ms. Sana was expressing facts, not comments (opinion)
- In almost all of her communications, Ms. Sana stated her opinions as matter of
fact, rather than laying out provable facts and commenting on those.
- “The essence of fair comment is that the reader or listener will be able to form his
or her own conclusions from the facts stated and is not presented with the
maker’s opinions as statements of fact”
- (p.12)

*Fair comment applies

 - The statement is a comment (opinion), not a statement of fact
- The defendant honestly holds that opinion
- The defendant made the comment in good faith and not maliciously
- The statement has a basis in fact
- The statement concerns a matter of public interest

Qualified privilege
- When it comes to defamatory words, it is presumed that the words were spoken with
malice. However, qualified privilege is used to disprove this.
- “If qualified privilege applies, the law presumes that there was a different, innocent
motive for publication, which is to promote the defendant’s cause and interest by others
in the cause”
- “Qualified privilege arises where publication is made in a reasonable manner and for a
proper purpose. That is, where “the person to whom a statement is made has a special
interest in learning the honestly held views of another person, even if those views are
defamatory of someone else and cannot be proved to be true”:
- P. 13
- “Qualified privilege attaches to the occasion upon which the communication is made and
not to the communication itself” (p.13)
- Factors used to consider if the occasion is privileged:
- The nature of the alleged defamatory publication;
- The persons by whom and to whom it is made; and
- The circumstances under which it was published.
- The privilege is “qualified” or “limited”
- If malice was the dominant motive for publishing defamatory statements, then
privilege will be defeated
- “The defendant is not entitled to the privilege if the plaintiff proves:
- 1) The defamatory remark was communicated to a person not entitled to receive
it;
- 2) The defamatory remark was in excess of or unrelated to the occasion; or
- 3) The defamatory remark was motivated by actual or express malice”.
- P. 13

Malice
- “Only those publications made on the occasion of qualified privilege need to be
scrutinized for malice. If a communication is in excess of or not connected to the
privilege, the court need not consider malice as the defence is not made out”(p14).
- “Malice is commonly understood, in the popular sense, as spite or ill will”
- "any indirect motive or ulterior purpose"

Responsible communication
- Judge does not view responsible communication as a defence in this case.
- “When one is promoting one’s own cause, as was the case with Ms. Sana, one is not
able to avail him or herself of the “responsible communication” defence” (16)
Defamation in the context of education
- “In the context of education, courts have recognized that parents and residents of a
school district have a duty, and therefore the privilege, in appropriate cases to inform the
proper officials of the habits or bad character of a teacher, or to request his or her
removal. A parent has a right and arguably a duty to report concerns about a teacher to
the teacher’s principal, superintendent or to the school board” (p.16)

Analysis of Malice
- Judge determined that “Ms. Sana had some legitimate concerns about Ms. Elkow’s
actions, which could also relate to Ms. Elkow’s fitness as a principal. Principals are not
immune from criticism, and even sharp criticism” (P.17)

Analysis of Impugned statements (These are the various letters, statements, meetings, that
caused Ms. Elkows allegations of defamation to arise)
a. Letter by Ms. Sana to Mr. McBeath (superintendent)
i. Judge does not find this letter defamatory because it occurred on an occasion of
qualified privilege
1. Privilege because Mr. McBeath was the Superintendent of EPS and
would logically be a person to whom one might complain about the
actions of a school principal
ii. Judge does not think Ms. Sana was acting maliciously at this time.
b. Statements at a meeting between Ms. Sana, Ms. Elkow, a principal, and administrative
assistant.
i. The meeting was held to discuss the complaints Ms. Sana had mentioned in her
previous letter.
ii. This is an occasion of qualified privilege. Does not think Ms. Sana was speaking
or acting with malice
c. Letter by Ms. Sana to Mr. McBeath
i. “Ms. Elkow is blaming her and her children “to cover her abusive actions” and
that “I am not the only (parent) to raise her voice to protect her children from an
abusive and unqualified principal”.” (p.18)
ii. This still qualifies for the qualified privilege defence
d. Statements made by Ms. Sana to other parents of children at Jackson Heights School
i. Not acting Maliciously
ii. Ms. Sanas comments were defamatory but were covered by the Qualified
privilege
1. “qualified privilege may attach to communications to parents and teachers
concerning activities in the school the teachers teach in and the parents’
children attend” (p 18)
e. Letter by Ms. Sana to Mr. McBeath
i. This letter is strong evidence of malice on Ms. Sanas part
ii. No defence assists Ms. Sana. The letter was motivated by malice and is not
protected by either fair comment or qualified privilege. It is defamatory.
f. Email sent by Ms. Sana to Mr. McBeath, copied to Svend Hansen, Chairman of the EPS
Board of Trustees and to Jamie Pallett, an administrator in the Leadership Services
department
i. This communication was defamatory but it was protected by qualified privilege.
g. Letter from Ms. Sana to Ms. Elkow, copied to Mr. McBeath and the Trustees of the EPS
i. This communication is protected by qualified privilege
h. Statements made to a mediator, Sharon Wilson, at a meditation between Ms. Sana and
Ms. Elkow
i. The statements were not defamatory
i. Sign taped onto Ms. Sana’s van
i. SIGN :
1. Attention. The principal of JH School (Miss Elkow) discriminating me
based on my race & believe. She abused & depressed my Kids. She give
me NO TRESPASSING to school without reason. Parents! Please call…
ii. She expressed this on non-privileged occasions. The malice here also takes
away from any privilege.
j. Statements made by Ms. Sana to parents and passers-by
i. Content of the leaflets was defamatory
k. Leaflets distributed in the neighbourhood surrounding the School
i. “It does not take a line by line analysis of the leaflet to determine that this
communication is defamatory of Ms. Elkow. It was motivated by malice towards
her. Any comment is not fair comment because the underlying facts are not true,
and there is no protection by reason of qualified privilege because of the
indiscriminate circulation of the leaflets” (p. 23)
l. Letter from Ms. Sana to MLA Gene Zwozdesky, Minster of Learning
i. This letter is not protected by qualified privilege because of malice, and is
therefore defamatory of Ms. Elkow.
m. Statements at the Law Courts by Ms. Sana to passers-by concerning the trial that day
i. No direct evidence of what was said
n. Statements to parents by Ms. Sana
i. No direct evidence of what was said
o. Letter from Ms. Sana to Mr. McBeath and Mr. Stevenson and the School, also
distributed to teachers at the School
i. Letter contained reckless statements that were made maliciously by Ms. Sana to
do harm to Ms. Elkow. Not protected by qualified privilege and are not
considered as fair comments. The letter is defamatory.
p. Letter dated June 17, 2005 from Ms. Sana to Mr. McBeath
i. Letter refers to Ms Elkow’s “criminal and discriminative actions”. It states that she
is “sick mentally disable”.
1. p.23
ii. Due to the numerous false allegations, Ms. Sanas malice towards Ms. Elkow has
been introduced. This means there is no protection of qualified privilege.
q. Letter dated June 23, 2005 from Ms. Sana to Deborah MacDormand, a teacher at the
School
 i. The letter refers to “Ms. Elkows false accusation, allegation, and discrimination””
(p.23).
ii. Qualified privilege does not arise here because Ms. MacDormand was not
someone who has the duty to receive these comments about Ms. Elkow
iii. No fair comment for the statements made in the letter = defamatory to Ms. Elkow
r. Letter from Ms. Sana to Ms. Elkow, copied to Mr. McBeath, Mr. Stevenson and the
Minister of Education
i. letter accused Ms. Elkow for abusing her power, had defamatory statements and
called her untruthful
ii. No qualified privilege, no fair comment, and letter itself is evidence of Ms. Sanas
Malice

Conclusion
- Ms. Sana defamed Ms. Elkow on numerous occasions.
- Early communications with Ms. Elkow, the superintendent and others were protected by
qualified privilege.
- However, as time progressed, Ms. Sanas actions became malicious and defamatory.
The defence of qualified privilege and fair comment could not be used.

Students’ freedom against unreasonable search and seizure

8. R v MRM, 1998 CanLII 770 (SCC) <http://canlii.ca/t/1fqq9> at paras 1-8 and 31-64,
[1998] 3 SCR 393.
● A vice-principal of a junior high school in Nova Scotia had been informed by some students
that another student, M.R., had planned to sell drugs at an upcoming school dance. The
vice-principal asked M.R. and his friend to come to his office. The vice-principal advised
them that he was going to search them for drugs. An RCMP officer, who had been called
 there by the vice-principal according to school policy, was in the office but did not
interfere.
● M.R. emptied his pockets and, after being asked by the vice-principal to do so, pulled up
his pant legs. There was a bulge in his sock. The vice-principal removed a plastic bag of
marijuana. The bag was given to the police officer who advised M.R. that he was under
arrest for possession of a narcotic.
● The constable read the police caution to M.R., told him that he had a right to counsel (a
lawyer) and that he had the right to contact a parent or adult. M.R. tried to reach his
mother but was not able to get in touch with her. He said that he did not want to call
anyone else. The officer and M.R. then went to M.R.'s locker and searched it. No more
drugs were found.
● The case went to court. M.R.'s lawyer argued that his client's rights had been violated.
Cousel pointed to two sections of the Charter. First, section 8 guarantees everyone has
the right to be secure against "unreasonable search and seizure". Second, section 10(b)
states that "everyone has the right on arrest or detention to retain and instruct counsel
without delay and to be informed of that right". According to the defence, both sections
had been violated.
● The student’s lawyer went on to argue that since the search was a body search that
disclosed proof (the bag of marijuana) that otherwise might never have been found, the
student was effectively forced to incriminate himself. If such evidence were allowed at
trial, it would affect the fairness of the trial and lower the reputation of the court as a fair
and impartial place.
● The 13-year-old student’s case came to trial in Nova Scotia’s Family Court, under the
initials “M.R.M” under the terms of the Young Offenders’ Act. His lawyer argued that the
search and seizure in the vice-principal’s office was unreasonable for several reasons.
● Main reasons: a) There was no search warrant, even though the RCMP were involved.
b) The presence of the RCMP officer intimidated the student c)The information given in
advance to the vice-principal was too vague and unreliable.
Appeal to the Nova Scotia Court of Appeal
● The government of Nova Scotia disagreed with this ruling and appealed it to the Nova
Scotia Court of Appeal. It argued that the vice-principal was not an agent of the police
and that the search was reasonable.
● Some of the main points are: 1. It is essential that school authorities be able to deal with
a situation that could unreasonably disrupt the school environment or jeopardize the
safety of the students.
● 2.The way in which the search was carried out did not cross the line. The vice-principal
and the student were both male and the search was not overly intrusive.
● 4.Since there was no pre-planned teamwork between the vice-principal and the RCMP
officer.
● Three judges of the Court of Appeal agreed with these points. Without a prearranged
plan with the police, the vice-principal was acting on his own. They felt that the search
would have taken place whether or not the RCMP officer was in the office. They found
that the seizure of the discovered drugs was legal and that the student’s rights were not
violated.
 ● Without a violation of rights, the Court of Appeal did not need to examine whether the
evidence should be excluded.Since the trial had effectively ended once the evidence
was excluded, the Court of Appeal ordered a new trial with the evidence of the drug
seizure included. This would allow the trial judge to School Searches and Privacy Rights:
R. v. M. (M.R.) 5 decide on the student’s guilt based on all of the evidence. However,
with such incriminating evidence before the court, it would be very difficult for the student
to argue his innocence.
Appeal to the Supreme Court of Canada
● The student applied for permission to have his case heard by the Supreme Court of
Canada, the highest appellate court in this country. The Supreme Court hears only the
most important appeals from all the provinces and territories. Its decisions are final: they
cannot be appealed to any other court. A panel of seven judges heard his case on June
25, 1998, and released their written decision on November 26, 1998.
● The Majority Opinion of the Supreme Court of Canada
● Six out of the seven judges agreed with the decision of the Nova Scotia Court of Appeal.
● The Dissenting Opinion of the Supreme Court of Canada
● One judge on the Supreme Court disagreed with the views of the majority. In a
dissenting opinion,Justice John Major argued that the trial judge had reason to conclude
that the vice-principal was acting as an agent of the police.

9. R v AM, 2008 SCC 199 (CanLII), <http://canlii.ca/t/1wnbf> at paras 3-23, 61-74 and 90-
91.

Police accepted a long-standing invitation from the principal of a high school to bring in sniffer
dogs to search the school for drugs.
● Police did not have any knowledge about whether or not drugs were actually present
in the school and would not have been able to obtain a warrant
● Students' backpacks were left in the gymnasium, while students were confined to
classrooms during the search
● A positive alert by one of the dogs to a students' backpack led to the examination of
the contents of the backpack by a police officer
○ The examination of the backpack was done without a warrant
○ Illicit drugs were found in the search

The student was charged with possession of cannabis marihuana and psilocybin for the
purpose of trafficking.
● At trial, the accused brought application for exclusion of evidence arguing that his
rights under Section 8 of the Charter had been violated
○ Section 8 protects privacy rights and the right to be free from
unreasonable search and seizure
● Trial judge found 2 unreasonable searches
 ○ Search conducted with the sniffer dog
○ Search of the backpack
● Trial judge excluded the evidence and acquitted the accused and the Court of
Appeal upheld the acquittal

Where the sniffer dog search may have been seen by police as an efficient use of their
resources and by the principal as an efficient way to advance a zero-tolerance policy in the
school, these objectives were achieved at the expense of the privacy interests (and
constitutional rights) of every student at the school.

Privacy and Backpacks

● Section 8 of the Charter protects "people, not places"
● But, because of their role in the lives of students, backpacks objectively command a
measure of privacy
● The emphasis should not be on the object of the search, but on where the search
takes place and its potential impact on the person that is subject to the search
● Do not agree with Crown's argument that A.M's reasonable privacy interest in the
contents of his backpack extended only to what was lawful and excluded what was
unlawful

Is a Prior Judicial Warrant Required?

● There is no mechanism in the Criminal Code to obtain a warrant on the basis of
reasonable suspicion
● The trade-off for permitting police to deploy sniffer dogs on a "reasonable suspicion"
standard without a warrant is that if this procedure is abused and the searches
proceed without reasonable suspicion based on objective facts, the consequences
can tip the balance against the admission of the evidence (court does not need to
take the evidence into consideration)

In this case, it is clear that the dog-sniff search was unreasonably undertaken.
● The school authorities also had little more than a "reasonably well-educated guess"
that drugs would be at the school on the day the search was conducted
● The police lacked any grounds for reasonable suspicion according to the youth court
judge and had no direct awareness as to the possible existence of drugs at the
school on the day of the search

Although a warrantless sniffer-dog search is available where grounds for reasonable suspicion
are demonstrated, the sniffer-dog search of the students' belongings in this case violated their
Charter rights under Section 8.

10. Constant-Daniels (Litigation Guardian of) v Tournier, 2014 SKQB 353 (CanLII),
<http://canlii.ca/t/gf7s9> at paras 1-41.
 - The school of the plaintiff and defendant had an established -no cellphone- policy, where
the cellphone would be taken from a student who had it out in class. During the incident
the plantiff’s teacher told the V.P. (defendant) that the student (plantiff) had acted out of
character. The V.P. then brought the student in and because of concerns of how the
student was acting told the student that he would be looking at the texts.
One of the text’s read “We stole a car”. From there, local police got involved, and they
talked with the plaintiff. At the time the plaintiff’s guardians (as he is/was a minor) were
not informed - the V.P. did not think it was going to be an interrogation and so did not
think it was necessary to inform them. As it turns out the officer went off-protocol and
brought the student off campus to find the vehicle after getting him to text his friends to
ask about its whereabouts.
- The claim is for breach of privacy or negligence on behalf of both the defendants (para.
1)
- For the privacy breach, the judge case of R v J.M., 2012 BCPC 126, 259 CRR (2d) 38
and para. 158
- “This modified standard applies to ‘searches of students on school property
conducted by teachers or school officials within the scope of their responsibility
and authority to maintain order, discipline and safety within the school’... If school
authorities are found to be acting as agents of the police, the usual standard
applied to the police will apply to these authorities.” (para. 158)
- Because the V.P. was not acting for the police but for the school and for
the safety of the school and its students & staff hw was permitted to look
at the texts.
- For the negligence, the judge referred to a court case that referred to another court case
found in para. 38 of the reading, the references to the tertiary case reads this critical info:
“Teachers and schools must exercise the ‘same standard of care over children as would
be exercised by a good parent with a large family.’ In other words, the standard is that of
the ‘ reasonably careful parent,’ who must guard against reasonable foreseeable risks,
not remote possibilities… The fact that it was possible that an accident might occur is not
the criterion which should be used to determine whether there has been negligence or
not.”

Procedural fairness

11. JO (Next Friend of) v Strathcona-Tweedsmuir School, 2010 ABQB 559 at paras 1-47.

Case is about whether or not J.O. was expelled from Strathcona-Tweedsmuir School (STS) in
accordance with the principles of fundamental justice. (ie. Was this a wrongful expulsion or not)
The O's also claim that J was defamed.

STS is an independent private school with an excellent reputation, with many parents believing
that the school offers, academically and otherwise, a better program to prepare their children for
university and life after.
 ● In spite of S.21 of the Private School Regulation, STS had no written rules dealing
with suspension or expulsion of students

J was a polite and quiet girl in the school and was generally a reasonably good student, but
experienced more difficulty than usual in grade 11.
● November 2006: meeting with her parents and school staff to create a plan which
would result in her improving her marks. If she did not pass one of her core courses,
she could not come back to the school for grade 12.
● December 2006: J went to the annual Christmas formal dance for STS students at
the Calgary Golf and Country Club with her boyfriend, P.L.
○ J went to a pre-dance get-together at her friend Hailey's house, after
which they got into a limo and went to the event.
○ J had champagne at Hailey's house and more alcohol later as well. By the
time they arrived at the Country Club around 8, J was not feeling well.

The events that followed come in two different versions:

● A senior member of the club, Mrs. Lougheed claims that "there was a young couple
in the washroom and they were 'going at it.'"
● J & P's version of the story (which was backed up by two other students) is that J
and P were both in the ladies washroom, J was very sick and throwing up and P was
helping her be sick. J was too drunk to do anything, and she and P were not having
sex.

Principal Addley interviewed J about the events, she became very upset and started to cry. She
was told that this was a serious issue and she was not to come to school the next day and that
he would be meeting with her parents.
● The principals were in favor of expulsion, but Head of School Ditchburn said the
family should be given the option of having J withdraw.

The meeting between the O's, Addley and Ditchburn did not go well – profanity ensued and a
glass was broken.
● The O's went into the meeting thinking they would discuss whether or not the events
of the night actually happened
● The decision to expel J had already been taken.

J never returned to school but no formal letter of expulsion was issued and no indication of
expulsion was entered on her record.

The issues and procedural fairness:

● Did the school have a duty of fairness in investigating and responding to J's conduct,
and if so, was it fulfilled?
● Did the school's conduct constitute defamation? (not a part of this reading)
● Was there a breach of contract (contract being the one between the O's and STS for
instruction of J at the school)
Duty of Fairness
● Counsel for Plaintiffs stated that duty of fairness required
○ Notice of the case against J
○ An opportunity to be heard and make representations
○ A decision by an unbiased tribunal
● Defendants' counsel argued that the concept of fundamental justice is flexible. The
minimum standard required is
○ That the accused has notice of the case against him/her
○ That the accused is given an opportunity to be heard

In the Court's view, the procedure followed in the case "fell considerably short of meeting STS'
duty of fairness"
● No one at STS took the time to properly hear and consider J's side of the story
● J was not given an adequate allegation to respond to, and her parents were given
even less opportunity to respond
● STS' actions were a rush to judgement
○ They contend in Court that it was the appearance of J's conduct, rather
than the correctness of the (highly reputed) witness' assertion that formed
the basis of the decision to remove J from STS

The Defendants were motivated to take rapid action to protect STS' reputation. Since fairness to
J cannot be sacrificed to this goal, her expulsion was a miscarriage of justice.

The school may have the right to be wrong, but it must be fair. STS was not. The decision-
making process that ultimately required J to leave fell short of the duty of fairness owed to her.
STS is in breach of its contract.

Week 3 Readings

1. MacCabe v Westlock Roman Catholic Separate School District No 110, 2001 ABCA 257
(CanLII), <http://canlii.ca/t/5rcq> at paras 1-79.
79 paras total

Margaret MacCabe is/was a highschool student who tried performing an advanced

gymnastic technique during her gym class that ended up leaving her a quadropelegic.
The original court case had found the defendant Darcy Romanuik (the gym teacher)
guilty of negligence, and that the school district would have to pay MacCabe damages
for loss of income due to the injury.
 In the appeal, the school district and Romanuik found the judge did not properly assess
the point of fault and that they should not be liable for the teen’s injuries.

The past trial judge used the Thornton criteria from a past case which looks at:
1. Is the activity suitable to the age, mental and physical condition of the
participants?
2. Have the participants been progressively taught and coached to perform the
activity and avoid the dangers inherent in the activity?
3. Is the equipment adequate and suitably arranged?
4. Is the activity being supervised properly for the inherent danger that is involved?
(Found para 11)

The big issue was that there was a lot of grey area as to whether Romanuik promoted
such dangerous/advanced techniques as what the student attempted. This is
because the students would be graded on a fairly open term of “creativity” which could
equate to difficulty.

In reviewing the case, the judge found that the defendant had not passed the Thorton
criteria, and was indeed at fault for neglect.

However, the judge also noted that MacCabe was also at partial fault for the injury she
sustained because she could be considered “a reasonable person”. This came from the
fact that she had previous experience in gymnastics from earlier in her life (para. 67),
she had been told (along with the rest of the class) to do what they were taught the day
before (para. 68), and that she was aware of some level of danger from her own
hesitancy to attempt the maneuver before hand (para. 71).

As she could be considered a reasonable person for the purposes of assessing danger
and potential outcomes, the judge decided that MacCabe would be 25% at fault, with the
coach and school board (considered the same being in this case) being liable for 75%
negligence.

2. Deo v Vancouver School District No 39, 2018 BCSC 133 (CanLII),

<http://canlii.ca/t/hq2x2>.
177 paras total

Deo v Vancouver School District No. 39 (Supreme Court of British Columbia)

· Introduction
o Isaac Deo a student was stuck by a falling branch on school grounds on school
hours
 o The plaintiff alleges that the defendant Board of School Trustees of School
District No. 39 (Vancouver) is liable under the law of negligence and the
Occupiers Liability Act, R.S.B.C. 1996, c. 337
§ Says he was owed a duty of care
o Sigurdson J. (previous case judge) ordered that the issues of liability and
damages be tried separately
· Facts
o Witnesses to the incident
§ Isaac and three other girls were present at the time
· Isaac’s recollection
o Event is clear but details about the rest of the day differ
from other 3
· Cindy’s recollection
o Different from Isaac’s
· Sidney’s recollection
o Similar to Kailee’s but somewhat unclear overall
· Kailee’s recollection
o Similar to Sidney’s, good memory, differed from Cindy’s
and Isaac’s
o Description of the incident
§ Branch pulled down and whipped back to hit Isaac in the eye
§ 3 adult supervisors, none noticed or were aware of the injury
§ Credibility is decent due to the memorability of such a drastic event at
an younger age
o First Aid Treatment at Nootka Elementary School
§ First aider saw no blood, tears, or visible signs of distress
§ Due to uncooperative nature, Ms.Chan wondered if 911 should be
called but the grandmother present at the time refused, felt someone
should look at his eye
§ Contacted father of student and conversed with principal about the
matter
o Arrival of Isaac’s Father at Nootka Elementary School
§ Received call from grandmother, rushed to school
§ Saw what he believed to be cuts or scratches around Isaac’s eyelid, and
what appeared to him to be a mixture of water, tears, and light-
colored blood coming from Isaac’s eye, also melted ice was in plastic
bag
§ Departed for doctor’s office
 o Further medical attention
§ Consultation with doctor says that he required to go to the children’s
hospital
§ Says needed surgery, principal was informed
· Supervision of Students on School Grounds at Nootka Elementary School
o School rules
§ Teaching safe play, no climbing
o Supervision of the students during lunch hour generally
§ 2/3 were outside and walking in a circuit to make sure all areas are
covered
o Conduct of the supervision aids on the day
§ Supervisor near sand pit did not see anything out of the ordinary
· Did not see the 4 students in question
o Extent towards the school staff viewed the maple tree as a hazard
§ No aids or principal had an issue with playing at or near the tree
§ No prior issues with said tree
§ If something was happening an aid was expected to intervene if
necessary
· Steps taken by the principal in wake of the incident
o Found that it was an accident
o Sent a letter home to the parents
o Talked about playground safety to the students
· Maintenance of the Nootka Elementary School Grounds
o Gardener had 20+ years of experience with this school’s grounds, found the
branch in question did not pose a threat
o Principal requested that it be removed
· First aid training and policies
o School board’s first aid policies
§ If there is doubt that EMS should be called then it shall be called
§ If student shall refuse first aid treatment then it shall be documented
§ Even though Ms.Chan had the first aid training, she would still give final
say to the child’s guardians/parents, especially with uncooperative
child
· Analysis
o Whether the defendant is liable under the occupier’s liability act
§ The applicable legal principles
§ The Occupiers Liability Act, R.S.B.C. 1996, c. 337, s. 3(1) provides that
an “occupier” of premises owes a duty to take reasonable care to see
 that those who use or are present on the premises are reasonably
safe. By virtue of s. 3(2) of the Act, the occupier’s duty of care applies
to (a) the condition of the premises, (b) the activities on the premises,
and (c) the conduct of third parties on the premises.
o Whether the Defendant Breached the Standard of Care under the Occupiers
Liability Act by “Failing to Eliminate the Hazard”
§ Taken in its proper context, Ms. Wallin’s decision to remove the branch
was a function of expedience rather than a matter of advertence to
risk, or risk management.
§ Present case is distinguishable from previous ones
§ No breach
o Whether the Defendant Breached the Standard of Care under the Occupiers
Liability Act by “Failing to Warn Students of the Hazard”
§ Too many hazards to warn the students of, a never-ending list…
o Conclusion on Liability under the Occupiers Liability Act
§ Defendant is not liable for failing to take reasonable steps for the safety
of the Nootka Elementary School grounds under the Occupiers
Liability Act. I find that the defendant did not breach the applicable
standard of care required of an occupier under the Act.
o Whether the Defendant is Liable under the Law of Negligence
§ To establish that the defendant was negligent, the plaintiff must prove
the following four elements on a balance of probabilities: (i) that the
defendant owed a duty of care, (ii) that the defendant breached the
applicable standard of care,
§ Applying the legal principals
· With the history in the school over the years considered it
does not prove that the defendant failed to establish and
implement a proper supervision plan.
· Does not prove that the defendant failed to establish and
implement a proper supervision plan.
§ Supervision of younger students
· Did not agree that younger students warranted higher level of
supervision
§ Sightlines
· Due to supervisors being on the move, argument was not
accepted
§ Supervision on the date of Isaac’s injury
 · Contentious regarding the amount of time the children spent
playing at the maple tree
· Not of sufficient duration to warrant negligence
§ Response to eye injury
· Plaintiff contends that there was negligence in failing to call
for an ambulance
· In deciding whether the defendant is liable in negligence
based upon Ms. Chan’s decision not to call an ambulance to
examine and treat Isaac’s eye, the Court must (1) identify the
appropriate standard of care applicable to a first aid attendant
tasked with assessing the timeliness of medical treatment, and
(2) determine whether Ms. Chan breached that standard of
care in deciding not to call an ambulance to the scene in this
particular case.
o Determining Whether Ms. Chan Breached the Standard
of Care
§ In deciding not to call for an ambulance, Ms.
Chan failed to meet the standard of care
expected of a careful and prudent parent,
designated, trained, and certified to provide
first aid in a school setting.
o Conclusion on the Issue of Response to Isaac’s Injury
§ My conclusion is that the defendant is liable in
negligence on account of the failure to call for
an ambulance in response to Isaac’s injury. The
defendant’s negligence led to a delay in timely
treatment for Isaac’s injury. The extent to
which this delay in timely treatment could be
said to have caused, contributed to, or
exacerbated the resulting damage to Isaac’s
eyesight is a matter to be determined at a
subsequent stage of the proceedings.
· Conclusion
o With respect to the plaintiff’s claim under the Occupiers Liability Act, the
defendant is not liable.
o With respect to the plaintiff’s claims under the law of negligence:
§ the defendant is not liable for any failure to develop and implement a
proper supervision plan for the school grounds;
 § the defendant is not liable for any failure to supervise the school
grounds on the date of Isaac’s injury; and
§ the defendant is liable for failure to respond adequately to the
plaintiff’s injuries by requesting or calling for emergency medical
assistance.

3. Bain (Guardian ad litem of) v Calgary Boardof Education, 1993 CanLII 7301
<http://canlii.ca/t/2brbx> (Alta QB) at paras 1-60, [1994] 2 WWR 468.
60 paras total

Quick Summary
● Students were on excursion for a forestry class. The teacher permitted the students to
go on a hike, unsupervised and alone. There were no precautions given. During a hike, a
19 year old student fell and suffered permanent brain injury.
● The court found the student 25% liable for the injury, and the teacher was found 75%
liable. The school board was also found liable for the teacher’s actions.
● Typically, educators are not liable for what happens outside of the classroom, but they
must eliminate hazardous risks. Since the excursion (and any field trip) is an “extension
of the classroom”, the teacher and school were responsible.
● There were three failures in the supervision, on the trip:
○ Permitting an unplanned hike
○ Failure to supervise
○ Failure to take precautions and avoid risks

This case suggests that teachers must not allow for unplanned situations (such as hikes or
unscheduled free time) to occur. Teachers must arrange supervision at all times and be
responsible for each activity on board regulated field trips.

Summary
On June 3rd, 1987, Kevin Bain fell from the face of a cliff near the top of Aberdeen mountain
near Vernon, B.C., and sustained the brain injury which has left him severely handicapped.
Kevin was one of five Grade 11 students from Van Horne Secondary School, in Calgary, Alberta,
who had accompanied their shop teacher, the Defendant Douglas Streibel, on a school
sponsored forestry products tour in the area of Lavington, B.C. Instead of attending a movie at
7:00 p.m. prior to lights out at 10:00 p.m., as called for in the school approved agenda for the
tour, the Defendant (teacher) gave his permission to the students to climb the mountain
hillside near the place where they were tenting. The Defendant drove the students to a point
close to the base of the mountain in the school van and let them off at 6:00 p.m. or shortly
thereafter, and told them he would pick them up in about three hours. The teacher did not
accompany the students on the climb. The cliff where Kevin fell was a short distance below
what appeared to be the top of the mountain and about 1,800 vertical feet above the valley
floor.

● Prior to the tour, the school sent a package of materials which included a detailed
agenda for the trip, and forms requesting the parent's permission for their son to
participate in the tour. The form of consent authorized the Defendant Streibel to act on
behalf of the parent in the reasonable care and discipline of the student and made it
clear that a student could be sent home for a breach of the rules. Mrs. Bain, the mother
of the student who was injured, received the material and signed the form of
permission for her son Kevin to go on the tour.
● The agenda detailed every hour of the three-day trip from breakfast to lights out. The
schedule for June 3rd, the first day of the trip and the day on which the accident
occurred, began with departure from Van Horne School, Calgary, Alberta, at 7:00 a.m.
and called for arrival at Lavington (near Vernon, B.C.) at 1:00 p.m. Thereafter the agenda
for that day was as follows:

Wed., June 3rd 1:00 P.M. – Relax, unpack, and eat lunch.

3:30 P.M. – Discussion on forestry products and processes.

5:00 P.M.– Supper

7:00 P.M.– Movie

10:00 P.M.– Lights out

● The defendant Board of Education pled no duty of care, contributory negligence and
voluntary assumption of risk.
● The court held that the teachers owed the plaintiff a duty of care on the basis of the
student-teacher relationship and/or on the general basis where the determination of
the existence of the duty of care, the existence of a close enough relationship between
the parties that reasonable people would expect that one would take care not to expose
the other to an unreasonable risk of harm. Likelihood of harm in allowing inexperienced
young men to climb a mountain unsupervised would have been apparent to reasonable
persons who would have also known that injury, if it did occur, could be serious or even
life-threatening.
 ● The fact that Kevin was 19 years and 7 months of age at the time of the accident, and
technically an adult, is not determinative of the relationship between Kevin and the
Defendant Streibel, insofar as it affects the question as to whether there was a duty of
care owed by the Defendant to the Plaintiff in the circumstances of this case. The fact of
the matter is that the relationship was one of a Grade 11 student and his teacher.
● The court found the teacher negligent in permitting the climb, allowing the students to
climb unsupervised, and failing to adequately prepare the students for a non-supervised
climb.
● The court held that there was an agenda for the student’s activities on the forestry tour.
It did not include mountain climbing. The agenda was the basis for the school board
approving the off-campus activity, and it was the basis upon which the plaintiff’s mother
signed the form allowing the plaintiff to participate. It was not an outdoor recreation
event.
● When the defendant teacher was called upon to give his permission for the mountain
climb, there was placed upon him a higher duty of care because the proposal
fundamentally changed the nature of the program in which the students would be
involved and increased the risk of the student coming to harm.
● Kevin was severely injured in his fall and received permanent and disabling injuries.
Although Kevin is able to walk, he has a severe limitation of balance and speed as a
result of the weakness and deformity of his right leg. He has very limited movement of
his right arm and is quite unable to control his arm or hand in most activities of daily
living. He also now has an inability to see in the right half of his visual field. This disability
is significant in that it prevents him from driving and he is legally blind. Kevin's speech is
slow and very difficult to understand. This is also a direct consequence of the trans-
tentorial herniation and subsequent brain stem injury. He also suffered from cognitive
impairment and post-traumatic epilepsy.

Conclusion
● The court found that the liability should be apportioned on the basis of 75% to the
Defendants, and 25% to the Plaintiff. Thus, the teacher was found to be 75% to blame,
and the student 25%.
● The student, Kevin, and his family were finally compensated 6 years after the accident.
He was entitled to compensation for his loss of earnings from the date of the accident to
the date of trial.

4. Deborah Tilli v Hamilton-Wentworth Catholic District School Board, 2019 ONSC 1783
(CanLII), <http://canlii.ca/t/j0qc4>.
105 paras total
The plaintiff, Deborah Tilli, brought issue to court for recovery of damages for personal injuries
she got during a physical altercation at her school with the defendant, Erica DiTomaso (another
student)
- Original incident occurred in 2008

Deborah Tilli alleges that Erica DiTomanso caused her injuries by smashing her head on the
floor. Schoolboard is alleged to have been negligent by providing inadequate supervision to
prevent this incident from happening

Deborahs (Plaintiff) Side of the fight

- Claims she was standing at her locker during the transition between classes (2-3 mins
long)
- Erica DiTomanso came and accused her of calling her names and asked why she did it.
- Deborah told her she never called her any names and DiTomanso suddenly slapped her
- A fight broke out and they both fell to the ground
- Erica DiTomanso was on top of Deborah when she grabbed her head with both hands and
smashed it into the floor at least once.
- Erica DiTomanso was then pulled off

Erica (Defendents) side of the fight

- States that a few weeks before the incident, Deborah Tilli yelled names at her on two or
three occasions when she walked down the hallways
- She was going to her second period class when she saw Deborah at her locker. Deborah
called her names and Erica went over to confront her.
- Deborah kicked her in the foot which caused Erica to slap her
- Then the mutual slapping and hair pulling began and both girls fell to the ground

Issue with the school/teachers and supervision

- Primary argument is that “that the specific lack of a supervision policy between periods
was inadequate and fell below the standard of care of a prudent and careful parent. In the
alternative, plaintiff’s counsel argues that if the Court finds this supervision policy was
adequate, then there was a specific failure of implementation of that policy at the time of
this incident” (para 79).

Liability of the School and Teachers

- found no liability on the school, teachers or school board.
- The standard of care is that of a careful and prudent parent;
- In this case, the standard is that of a parent of 15 year old teenagers
 - The school had a supervision policy in place, there were surveillance cameras and
numerous teachers that circulate the hallway during the transition time in between
classes.
- No evidence was brought forward for what the school could do to prevent this, or that the
school’s supervision policy fell below the accepted standard, or fell below the standard of
a reasonable and prudent parent of a teenager (para 93)
- “It is not lost on this court that this was a sudden and spontaneous event that
escalated and finished in approximately 30-45 seconds. Only by having a teacher
posted in the exact area of this incident, at the very time it occurred, could the
school perhaps have prevented the fight from occurring. Such a standard is not
reasonable and certainly not one any reasonable and prudent parent would be
expected to adhere to with its own teenage child” (para 95)

Liability between the students

- Judge believes that the fight started off as a consent fight. Both students were willing
participants in this physical altercation
- the fight stopped being consensual when Erica DiTomaso took the plaintiff’s hair on each
side of her head and banged the back of the plaintiff’s head forcefully on the tile floor on
more than one occasion.
- Court ruled that there was no justification for this because it was excessive, reckless and
careless. Any reasonable person would expect this action to cause injuries
- Erica DiTomaso is 60% responsible for damages caused to Deborah Tilli
- Deborah Tilli is 40% responsible for her own injuries
- She provoked the confrontation by name calling, which she knew would have caused a
reaction out of the defendant.
- “Provocation works to mitigate damages. It is a form of contributory negligence
and mitigates damages whether arising from an intentional act or negligence”
(para 101)

5. Hamilton v School District No 37, 2010 BCSC 712 (CanLII), <http://canlii.ca/t/29v33>

63 paras total

During a physical education class on March 5, 2007, one of her classmates accidentally hit the
plaintiff, Paige Hamilton, in the face with a floor hockey stick. The blow broke Ms. Hamilton’s
nose. Ms. Hamilton claims that the accident was caused by the defendant’s negligence,
including a failure to require the use of protective gear and a failure to ensure the activities
were adequately supervised. Ms. Hamilton contends she has suffered injuries, loss and
damages as a result of the defendant’s negligence, including the cost of plastic surgery on her
nose. She seeks general damages of between $25,000 and $28,000, plus $4,000 for the
surgery.
● Ms. Hamilton was in Grade 11 PE, which she had 5 times a day in the morning at
8:30am. The PE class was covering the basketball and floor hockey unit, alternating
between the two games every day. There were 30 students in this class and 4 other
students: Deanna McLaughlin, Amy Grewal, Harmann Mann and Sager Sehra, testified in
this case. The class was taught by Mr. Manjit Parhar, who had recently taught PE for 6
years at an elementary school before coming to work at this high school.
● Mr. Parhar testified that, at the beginning of the floor hockey unit, he had all of the
students sit on the gym floor and he spent considerable time talking to them.
○ He went over all of the safety rules and broke down the skills the students would
be learning
○ He discussed topics such as what is a high stick, what is a cross-check, and that
he demonstrated every infraction of the rules
○ The main rules were: no high sticks, no hitting, no body-checking, no slashing
○ He testified that he enforced the rules → If a student broke the rules, he took
the student off the floor
○ He testified that, while in the first class he spent quite a bit of time
demonstrating, after that, and before every game, he would give the class a
quick reminder of the rules: sticks were to be kept low, there was no body-
checking, and no slashing
○ Mr. Parhar said that during a game, he is walking around the gym, watching play
and away from the puck.
● There was general agreement among the student-witnesses that these were the main
rules governing floor hockey.
● Ms. Hamilton stated that she did not remember receiving lengthy instructions from Mr.
Parhar at the beginning of the floor hockey unit. However, she did recall receiving some
explanation from Mr. Parhar about how to play and the basic rules: no slap shots, no
high sticks, no cross-checking. Mr. Sehra recalled that, at the first class, Mr. Parhar went
over the rules (which he recalled as no body-checking, no hitting, no rough stuff and
sticks below the waist) and that Mr. Parhar did a few demonstrations. (Difference
between student testimony)
● Ms. Hamilton had played floor hockey previously in her Grade 10 PE class and the rules
enforced by her Grade 11 teacher were the same as those enforced by her Grade 10
teacher: “Mr. Becker [Grade 10 teacher] taught the class the same rules as Mr. Parhar
taught the Grade 11 class, including no sticks above the waist and no body-checking.”
● Ms. Hamilton stated that some of the students were using wooden sticks, which they
had brought from home, rather than the normal plastic sticks supplied by the school.
She also stated that Mr. Parhar was playing goalie, and was outfitted in full NHL goalie-
type gear. She also recalled the play before she went on the floor for her shift as being
rough and aggressive, with people being checked into the walls. Ms. McLaughlin also
recalled Mr. Parhar played goalie, and she also recalled the play being sufficiently
aggressive that she took herself off the floor.
● Ms. Hamilton’s and Ms. McLaughlin’s recollections are contradicted by other witnesses.
The other student-witnesses and Mr. Parhar testified that, on March 5, 2007, the
students were playing with the school’s plastic floor hockey sticks. Ms. Grewal testified
that Mr. Parhar was not playing goalie on March 5. Neither Mr. Mann nor Mr. Sehra
recalled ever seeing Mr. Parhar playing goalie. Ms. Grewal, Mr. Mann and Mr. Sehra all
testified that Mr. Parhar was refereeing the game on March 5, and patrolling the
sidelines. This is consistent with Mr. Parhar’s description of what he was doing that
morning.
● None of the other student-witnesses saw the rough and aggressive play Ms. Hamilton
and Ms. McLaughlin say they witnessed on the day Ms. Hamilton was injured. Rather,
they described a normal game.
● Mr. Sehra admits that he was the student who hit Ms. Hamilton. His evidence was that
he was clearing the puck, shooting east (towards Ms. Hamilton’s team’s goal). He
testified that he and Ms. Hamilton were facing one another, and his stick came up and
hit her. He recalled his stick being about mid-chest level, and that he knew this was an
infraction of the rules. However, Mr. Sehra said it “just sort of happened.” Mr. Sehra
said that he apologized four or five times, and that he did not know he had broken Ms.
Hamilton’s nose.
● Ms. Hamilton received nasal reconstruction surgery on October 28, 2008 by Dr.
Kibblewhite, who is both an otolaryngologist and a plastic surgeon. She first say him on
December 7, 2007, and Dr. Kibblewhite testified that he took a history during which Ms.
Hamilton informed him she had a long standing history of nasal obstruction, for the last
two to three years, and that it was worse on the right side than on the left. She also told
him that she had a dry mouth when she woke in the morning. These parts of Dr.
Kibblewhite’s history are reflected in his letter to Dr. Kwak dated December 7, 2007,
reporting on his examination of Ms. Hamilton.
● In her testimony, Ms. Hamilton denied noticing any breathing problems before the
accident on March 5, 2007. On cross-examination, Ms. Hamilton testified that she
answered honestly when Dr. Kibblewhite took her history. However, she said that she
did not recall telling him that she had a long-standing history – for the last two to three
years – of nasal obstruction. Ms. Hamilton said that Dr. Kibblewhite’s statement to that
effect was not accurate, and that she had had breathing problems only since March
2007. She said Dr. Kibblewhite’s statement was wrong, and she denied any problems in
the previous two to three years.
● Dr. Kibblewhite performed open-tip septal rhinoplasty on Ms. Hamilton, in which he
aligned the septum to improve breathing. This procedure was covered by the B.C.
Medical Services Plan (or MSP).Dr. Kibblewhite next saw Ms. Hamilton on February 8,
2008, and at this meeting, Ms. Hamilton indicated that she wanted the dorsal hump
removed. Ms. Hamilton testified at trial that she was extremely self-conscious of the
hump, and knew she would want it to be corrected. Dr. Kibblewhite informed Ms.
Hamilton that that surgery would not be covered by MSP, because it is considered
cosmetic. Dr. Kibblewhite again saw Ms. Hamilton on August 21, 2008 in connection
with the cosmetic surgery, and then again on October 20, 2008. The surgery was
 performed on October 28, 2008 at Cambie Surgical Centre. The cost that was not
covered by MSP was $4,000, which Mr. Hamilton paid.

Discussion and Analysis

● Ms. Hamilton was not a novice floor-hockey player, nor did she or her classmates lack
instruction on how the game was to be played. She had taken a floor hockey unit as part
of her Grade 10 PE class. She acknowledged that her grade 10 teacher instructed that
class in the basic rules, including no sticks above the waist and no body-checking. She
had played floor hockey, applying these rules, in Grade 10 about ten or twelve times.
These were the same rules on which Mr. Parhar instructed his Grade 11 students. Ms.
Hamilton did not dispute this. The other student-witnesses (all of whom had previously
played floor hockey as part of their physical education curriculum in earlier grades)
confirmed it. Mr. Parhar testified that at the first class, he spent considerable time
demonstrating (something Mr. Sehra confirmed), and breaking down the skills and the
rules of the game. Moreover, March 5, 2007 was not the first time at which Ms.
Hamilton’s class played floor hockey. The class had had at least three or four floor
hockey sessions since the beginning of the unit. By March 5, 2007 class, the activity was
neither new nor unfamiliar.
● Ms. Hamilton’s memory was also brought into question at trial. For example, she was
unable to remember what the other two subjects were that she took in her second
semester in 2007. She was unable to remember what the first unit of her PE class was.
While Ms. McLaughlin testified she and Ms. Hamilton were good friends, Ms. Hamilton
said they were not close. She disputed the accuracy of the history Dr. Kibblewhite
testified he took from her. The credibility of her testimony was called into question,
especially where it conflicted with that of other witnesses.
● Ms. Hamilton stated that Mr. Parhar playing in goal in full ice-hockey gear, yet three
other students testified that on the date Ms. Hamilton was injured, Mr. Parhar was
acting as the referee, thus supporting Mr. Parhar’s own evidence about what he was
doing, and supporting his strong denial that he was playing in goal. Ms. Hamilton also
testified that, on the day she was injured, some students were playing with wooden
sticks. The evidence from everyone else was that students (including Mr. Sehra) were
playing with the regulation, school-supplied plastic sticks.
● There was no failure on Mr. Parhar’s part to curb or discipline unsportsmanlike conduct,
and no failure to supervise the activity properly. The students had received appropriate
instruction from Mr. Parhar at the beginning of the unit, and this was at least the third
or fourth time they had played floor hockey – without incident – since then. All of the
student-witnesses, including Ms. Hamilton, had played and received instruction in floor
hockey prior to Grade 11.
● Mr. Sehra did not attempt to excuse his behaviour on March 5, 2007 on the basis that
he thought he could get away with breaking the rules and reckless play. Rather, it was
an accident, which happened quickly – so quickly that many did not know until after the
fact that it had happened at all. Mr. Sehra knew what he had done was against the rules
of play, and he apologized for it.
Conclusion

● The school district was not held liable in this case and Ms. Hamilton’s claim was
dismissed with costs to the defendant.

6. Patrick v St Clair Catholic District School Board, 2013 ONSC 4025 (CanLII),
<http://canlii.ca/t/g2vjr>
272 paras total

Action for damages for personal injury arising from an incident between Jeffrey Patrick and
D.G., that occurred in the schoolyard of St. Joseph School, before the first class of the morning.
- Group of students were playing keep-away with a football
- Supervision plan: two teachers were assigned by the principal to supervise the
schoolyard before classes began
- D.G pushed Jeffrey, who fell to the ground. Jeffrey got up, more pushes were
exchanged, and Jeffrey fell again. The back of his head hit the ground. D.G got on top
of Jeffrey and punched him in the face several times. Jeffrey suffered a brain injury

More detail:
- Jeffrey said that after he had played for about 10 minutes, he was “just standing
there” and someone threw the ball to him and he missed it. He said that D.G. then
pushed him, using two hands on his chest and he fell down “on my butt.” Jeffrey got
up and pushed D.G. but he did not fall down. D.G. pushed him back and Jeffrey fell
backwards and the back of his head hit ground with “a hard thud.” Jeffrey thought he
might have been knocked out. He said that when “I got feeling back and he was on
top of me, hitting me, so I grabbed his hand to stop him from hitting me in the face.”
Jeffrey estimated that from the time he was on the ground the second time, he got his
feeling back and he realized that D.G. was on top of him hitting him, a couple of
minutes had passed (para 46)

- Jeffrey said that while he was lying on his back, D.G. was straddling him, sitting on
his stomach with both of Jeffrey’s arms pinned under D.G.’s legs. D.G. hit him at
least five to 10 times in the face. Jeffrey said he struggled to get his hands free from
under D.G.’s legs and when he did, he grabbed both of D.G.’s hands. It was then that
“something hit me on the top of the head.” He described the hit as feeling like a hard
thud but he knew it did not come from D.G.. Jeffrey said “Everything went black.”
He went on to describe that when he got “feeling back” and got up, saw he was
bleeding and saw D.G. to the right of him. D.G. then left and when he returned, about
two minutes later, he had Kleenex with him. Jeffrey assumed that D.G. had gone into
the school to get it. While D.G. was gone, Jeffrey said that he ran towards the
backstop to “get away from the people” who had “just watched me get beat.” When
he was about 10 feet away, he said he was “clothes lined” by Brendon Bartlett and
Kevin Key, the two students in his class who Jeffrey had said threw markers at him,
 punctured his back with a protractor and broke two yardsticks over his back. He fell
on his back again. Jeffrey said he was then punched in the face by another student,
Derek Patrick. Jeffrey said he turned and started to walk back towards the school.
(para 47)

- By that time, D.G. was back with the Kleenex which he told Jeffrey to put on his nose
and clean up the blood. D.G. started to walk with Jeffrey towards the asphalt. Jeffrey
said they had gone about five feet when the school bell rang signalling 8:55 a.m. It
was then, Jeffrey said, that he saw Mrs. Walker coming out of the school doors. She
met them and took both Jeffrey and D.G. into the school. Jeffrey’s memory is that he
stood outside an office while the students were coming into class. He said he was then
put in an office and another teacher cleaned him up in the staff washroom. He was
given an ice pack to put on his face. The next thing Jeffrey remembered was his
mother coming to get him and Mr. Power walking with him to meet his mother.
(para.48)

D.G was charged as a young offender and convicted of assault.

Jeffrey never returned to St. Josephs school after the incident.

Issue: liability of St. Clair Catholic District School Board, the principal and vice principal of the
school and other teachers at the school
- Plaintiffs argue that defendants owed a duty of care to Jeffrey and that in failing to
protect him from the injury by D.G., they were negligent and breached their duties set
out in the Education Act

Plaintiffs argue that the Board and it's personnel were negligent in 3 ways and if it had not been
for this negligence, the injury to Jeffrey would not have occurred.

1) Board, principal, and vice principal did not have an adequate plan of supervision in
place for the schoolyard (considering size, configuration and division of schoolyard)

2) The level of supervision provided by Mrs. Cindy Walker, the teacher assigned that
day to supervise the area where the assault took place fell below the standard of care
required in the circumstances

3) The documented and undocumented incidents involving breaches of school rules and
the discipline code that came into effect for the 1999 – 2000 school year by Jeffrey
and D.G. should have resulted in both of them being identified as students who
required more than the usual level of supervision in the schoolyard

Of note…

- Both Jeffrey and his mother acknowledged that he had anger issues if he was picked
on and that he sometimes started a confrontation in those circumstances, as
documented in his incident reports.
 - Mr. Toll’s (called to testify as an expert on behalf of the plaintiffs to establish the
standard of care required of boards of education, principals and teachers with respect
to plans of supervision) opinion was that the number assigned to supervise the
schoolyard was inadequate. He said that he based that opinion on his review of the
site plans, a knowledge he gained because of his involvement with the building of
schools. From his experience, he said he would have had four teachers supervising
the area. The basis for his opinion as to the number of teachers required was based on
the enrolment numbers at the school and the site plan. He said it was as important for
the students to be able to see a teacher as it was for a teacher to be able to see the
students.

- Mr. Toll expressed the opinion that Mrs. Walker failed to carry out her supervisory
responsibilities that day because she was not close to where grade 7 and 8 students
were playing as she was apparently dealing with another situation involving some of
the younger students

- With respect to his review of the individual student records of Jeffrey and D.G.,
including their IEPs, Mr. Toll expressed the opinion that they required closer
monitoring and closer supervision on the schoolyard and that this need should have
been communicated to the supervising teachers.

- Mr. Toll expressed the opinion that D.G. was a student who bullied others and would
require close monitoring both in school and in schoolyard activities. Mr. Toll said that
this close monitoring of students was required both for any student who was doing the
bullying and any student who was being bullied, in this case Jeffrey.

- At the conclusion of his examination in chief, Mr. Toll confirmed that it was his
opinion that the school board, along with its various employees, breached their duty
of care in a manner that was causally related to Jeffrey’s injury.

- On cross-examination, much of his evidence was challenged and discredited.

The Defendants / Board argues that the assault was a sudden and unexpected event that could not
have been anticipated by anyone and that the Board and its personnel were, thus, not negligent

1) Jeff and D.G were cousins and considered “the best of friends,” and, because they had
a “special relationship”, there was no need for special supervision

2) The plan of supervision for the schoolyard was adequate

3) Mrs. Walker provided adequate supervision on the schoolyard that did not fall below
the standard of care

Of note…

- Para.100: Mr. Toll’s evidence was not helpful in coming to my ultimate decision
regarding liability and I did not rely on it. I entirely disregarded his opinion that one
of the teachers assigned to supervise the schoolyard should remain stationary and not
 circulate around the yard. I accepted the evidence of Mr. Power and the other
defendants with respect to the principles of schoolyard supervision and the manner in
which it should be carried out.

- Vice principal and Mrs.Walker (supervisor) both say that they never thought of
Jeffrey or D.G. as being “high risk” students or of needing any special monitoring.

o The term “high risk student” generally refers to a student who has a severe
learning disability that would put him or her at risk for not being successful
academically. High risk students are not necessarily students who are going to
lash out or act violently but rather would be at risk for not being successful in
furthering their education

- Mostly all of the cases cited conclude that the acts of students do not require that
students be under constant surveillance; teachers are not required to be constantly
watching students

o Their obligation is to simply exercise the same degree of care that would be
exercised by a reasonably prudent and careful parent.

o what is expected of school boards and their personnel in relation to their duty
of care to their students is that they act as careful and prudent parents

Jeffrey and D.G. had special needs and while they may have been “at risk” academically, their
needs in that regard were being addressed by the school in a caring and compassionate way.
Their behavioural issues as reflected in their incident reports and comments in their IEPs were
not such that one would have fact-based concerns about them being a danger to themselves or
others

While I find that the school did not deal effectively with the teasing and what can only be called
bullying especially as it pertains to Jeffrey, I am not satisfied on the balance of probabilities that
the proper solution was to provide a higher level of supervision of Jeffrey while he was on the
schoolyard (para 272)

The fact that no extra supervision was provided, even though in hindsight it might have been
helpful, does not in itself breach the duty of care the school owed to Jeffrey. The evidence does
not support a finding that a higher level of supervision or a direction to the schoolyard supervisor
to keep an extra eye out for Jeffrey would have prevented the incident. I find that it was a
sudden, unexpected event and the plaintiffs have not established otherwise on the balance of
probabilities. The action is therefore dismissed with costs to the defendants, if sought.

- Plaintiffs have failed to establish on the balance of probabilities that the defendants
breached their duty of care to Jeffrey and that his injury was the result of their
negligence. The action is dismissed.
 Week 4 Readings

210 paras

1. R c Audet, 1996 CanLII 198 (SCC), <http://canlii.ca/t/1fr9r> at paras 1-28 and 32-49, [1996] 2
SCR 171.

· Background
o 22year old teach met 14-year-old previous student at club by chance
o Accused started the touching
 o The respondent was subsequently formally charged with touching the
complainant for a sexual purpose while in a position of trust or authority
towards her, thereby contravening s. 153(1) of the Criminal Code.
· Court of Queen’s Bench (1993)
o Judge stated that the only real issue was whether the accused was a person in
a position of trust or authority towards the complainant at the time of the
incident
§ Of the opinion accused was neither in a position to exercise some sort
of power over the complainant nor in a position of trust within the
meaning of s. 153(1) of the Code
· Analysis
o For his part, Ayles J.A. was of the view that s. 153(1) requires a comprehensive
analysis of the nature of the relationship between the young person and the
accused, regardless of the question of exploitation. His view differed
because he felt that all young persons are in a relationship of dependency
with teachers because of the fiduciary relationship that exists between them,
which derives from the role conferred on teachers by society.
o s
· The Error of Law Committed by the Trial Judge
o To obtain a conviction under s. 153(1), the Crown must prove beyond a
reasonable doubt that the complainant is a young person within the meaning
of s. 153(2), that the accused engaged in one of the activities referred to in s.
153(1) and, finally, that at the time the acts in question were committed the
accused was in a position of trust or authority towards the young person or
the young person was in a relationship of dependency with the accused. Of
course, the Crown must also prove the mens rea required for each of these
elements.
o The trial judge, and, for that matter, the Court of Appeal, erred in law in
incorrectly assessing the nature of the constituent elements of the offence
set forth in s. 153(1) of the Criminal Code. In light of this error, it must now
be determined whether the appeal should nevertheless be dismissed or
should instead be allowed and, in the latter case, whether a verdict of guilty
should be entered or a new trial ordered.
· Application to the Case at Bar: Appropriate Order
o However, it would be excessively formalistic to refuse to recognize that
certain persons, by reason of the role entrusted to them by society, will in
fact and in the vast majority of cases come within the ambit of s. 153(1) by
reason of their status vis-à-vis the young person and, in particular, the
 relationship they are engaged in with that young person as a consequence of
such status.
o Judge did view that teachers did have these positions of trust and authority
o Court entered a verdict of guilty

4. MM v PM, 2000 BCSC 1597 (CanLII), <http://canlii.ca/t/1fmfr> at paras 1-7 and 31-71.

Supreme Court of British Columbia - M.M. v. P.M

· The plaintiff M.M. was a student of the defendant P.M. He alleged that she
sexually assaulted him commencing in the Fall of 1982
· P.M. testified that she did have a sexual relationship with M.M. She said it
commenced around the Fall of 1984
· Plaintiff was a grade seven student in 1982 – defendant initiated touching when
she was 26 years old + 11 years old than plaintiff, did not occur on school grounds
· The situation came to the attention of the school authorities in 1995. P.M. was
suspended from teaching in June, 1996. She faced criminal charges in 1998. She
was acquitted of these charges.
· Fiduciary duty
o It is clear that a teacher/student relationship is usually a fiduciary
relationship [R. v Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171; Frame
v. Wilson, infra]. The question is how long does such a relationship exist?
§ In Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, Wilson J.,
dissenting, held that the requirements for a fiduciary obligation are:
§ a. the fiduciary has scope for the exercise of some discretion or
power;
§ b. the fiduciary can unilaterally exercise that power or discretion so as
to affect the beneficiaries legal or practical interest; and
§ c. the beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary holding the discretion or power.
o M.M.’s evidence could not be ascertained...
§ P.M. was no longer his teacher nor would she ever be his teacher
again. She did not teach in the same school or the same level of
school. She had no authority over him vis-à-vis his education.
Finally, M.M. was, by 1984, not vulnerable to or at the mercy of
P.M.
 o The plaintiff argues that the Board of School trustees is liable to him on two
bases. One, that the Board had a fiduciary duty to him and breached that
duty. Second, that the Board is vicariously liable for the breach of a
fiduciary duty by the defendant, P.M.
o The jury was told that there was an imbalance of power on the part of P.M.
when M.M. was her student. The jury was instructed, applying the test for
consent in Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226,
that they had to approach the issue of consent in two steps. The first step
was whether there was an imbalance of power between the two persons.
Did P.M. dominate and influence M.M.? If so, then they were instructed to
consider the second step, and that is whether P.M. exploited her dominate
position to induce M.M. to consent to the sexual relationship.
o The jury, by its verdict, clearly found that P.M. did not use any authority to
exploit M.M. in order to have sexual relations with him. Given the burden
is on the defendant to establish the factors for genuine consent, it is
reasonable to assume that the jury accepted the evidence of P.M
o Vicarious liability
§ Defendant found not liable for the breach of fiduciary duty
o

9. Morin v Prince Edward Island School Board, Regional Administrative Unit No 3, 2002
PESCAD 9 (CanLII), <http://canlii.ca/t/4tkj> at paras 1- 115.

Morin vs. Prince Edward School Board (Supreme Court of PEI)

• Background

o The appellant Morin (second year probationary teacher) showed a film in a grade 9
language arts class, was then prevented from showing it further

o He appealed the order of his principal not to show the film and was partially successful in
his appeal through the school system but was placed by the respondent board on an involuntary
leave of absence for the rest of the school year and not rehired for the following year.

o The first statement of claim in this matter was filed on April 21, 1989. Various court
proceedings and amendments to the statement of claim followed, resulting in a trial in June of
1999. The decision from that trial ([1999] 2 P.E.I.R. 220), dismissing all claims, is what is now
appealed. The issues raised at trial can be summarized as follows:

(1) breach of the appellant’s right of freedom of expression under s.2(b) of the Canadian
Charter of Rights and Freedoms;
 (2) breach of s.7 of the Charter;

(3)wrongful dismissal; and

(4) defamation.

o Parents of students started excusing their children from said teachers classroom

o A curriculum committee convened to discuss the assignment

Found that to be acceptable in terms of theme, topic, skills (viewing, reading, writing),
and learning materials;

to be wanting in terms of preparation, review of prerequisite skills, presentation, and

evaluation; and

to be questionable in terms of meeting the expectations of students and parents with

regard to the sensitivity of the topic and the provision of an alternate assignment.

• Disposition

o Allowed appeal with respect to he breach of the appellant’s right of free expression as
set out in s.2(b) of the Charter of Rights and Freedoms. Judge would dismiss all other grounds
of appeal

• Application of Law to facts

o In this case, the prohibition against showing the film and carrying out the project was the
limitation. The issue of whether or not the appellant’s failure to obtain employment with the
Board the following year was in retaliation for his defence of his free expression rights then
becomes an issue relating to damages.

o In conclusion, the plaintiff/appellant’s activity is not excluded from the sphere of conduct
protected by freedom of expression.

• Purpose

o Must have a purpose of restricting expression requiring a justification under s.1.

o The Board’s ultimate decision –that the film and project could only be presented in a
manner that met with the principal’s and superintendent’s approval – was itself another limitation
on the appellant’s ability to express himself freely in his capacity as a teacher. Its purpose was
clearly to restrict the appellant’s expression, requiring it to be within limits set by others. As
such, those limits on expression ordered by the Board contravene the appellant’s right of free
expression unless justified under s.1.

o The evidence overwhelmingly indicates that their actions were direct attempts to prohibit
what they concluded was a controversial film primarily because they were told a few parents
were unhappy and a couple of students may have walked out during its showing.
o Referring to another case, even if the the film were questionable in terms of meeting the
school program’s objectives, the freedom to show the film will be protected by s.2(b) and a
prohibition must be justified under s.1.

o Supreme court judge then concludes the purpose and intent of the impugned acts was to
prevent the appellant from expressing content he chose to express as a teacher in one of the
respondent’s schools.

• Effect

o Even where the purpose and intent of a law or government action is not to restrict
freedom of expression, that may be the unintended effect.

o Onus on the plaintiff to prove

seeking and attaining the truth is an inherently good activity; participation in social and
political decision-making is to be fostered and encouraged; and the diversity in forms of
individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant,
indeed welcoming, environment not only for the sake of those who convey a meaning, but also
for the sake of those to whom it is conveyed. A government action not aimed at suppressing
free expression but that has suppression as its unintended effect, will therefore constitute a
violation of s.2(b) if the complainant can show that one of these values is implicated in the
prohibition on his or her expression.

Arguable that all three cases here have been violated

o Concludes that the values underlying the guarantee of freedom of expression are
implicated in the circumstances here, so the actions of the principal and vice principal and
ultimately the School Board, had the effect of suppressing the appellant’s constitutional right to
free expression under s.2(b) of the Charter and are violations of that right. - Breached by all
three

2. SGH v Gorsline, 2001 ABQB 163 (CanLII), <http://canlii.ca/t/h2qq6> at paras 1-29, 49-125.

● A 12-year-old female student had been sexually assaulted by her teacher, Joseph
Gorsline, while in junior high school in 1978 and 1979.
● The defendant, Gorsline, the plaintiff’s track and field coach, sometimes trained with her
after school, on weekends, and during holidays, and would drive her to a private track
club and to competitions. The abuse involved all types of sexual activity, short of
intercourse, and occurred in several locations including the teacher’s office, vehicle, and
home; the nurse’s office; and a park.
● The plaintiff said that once sexual activity began, “she felt helpless to stop it” (S.G.H. v.
Gorsline, 2001, para. 5) and that the need for the defendant’s “attention and favour
combined with her feeling of guilt kept her in his grasp” (para. 6).
● The sexual assaults were reported to police in January of 1993, approximately 15 years
after the abuse had ended.
 ● Gorsline was arrested and ultimately convicted of four counts of sexual assault involving
Ms. S.G.H. and three other students.
● School colleagues described Gorsline as friendly, popular, dedicated, and well liked by
most people, including both male and female students.
● The administrators, teachers, and parents who gave evidence had not suspected any
misconduct by Gorsline and denied any knowledge of his sexual conduct. Some
students had a different perception, however—recalling that he had openly flirted with
and groped young female students—and aptly nicknamed him “Gorslime” (S.G.H. v.
Gorsline, 2001, para. 20). Even so, the female students sexually abused by Gorsline did
not report him to anyone in a position of trust and authority: “therefore, a duty to act was
not established” (Bowers, Knox, & Zuker, 2006, p. 53).
● Following Joseph Gorsline’s incarceration, the plaintiff, Ms. S.G.H., filed a tort claim
against Gorsline and the school board. The trial judge awarded Ms. S.G.H. general and
special damages and damages for lost income in the amount of $173,631 but dismissed
the claim of vicarious liability, negligence, breach of fiduciary duty, occupier’s liability,
and breach of contract against the Calgary School Board.
● The Court of Appeal (2004) decision summarized the trial judge’s findings “that the
duties required of the defendant teacher by the Board, while providing an opportunity for
abuse, did not significantly contribute to the risk of child sexual abuse” (para. 22)
because the teacher did not have any unusual authority over the students. The Court of
Appeal also cited Bazley v. Curry (1999), noting that the relationship fostered by the
Calgary School Board “fell far short of the “parent-like” control or authority discussed in
Bazley” (para. 25).
● This finding was made despite evidence adduced in court that the assaults had occurred
during the school year and on school property while the students had been under the
Board’s care and supervision.

8. Attis v The Board of School Trustees, District No 15, 1996 CanLII 237 (SCC),
<http://canlii.ca/t/1frbr> at paras 1-8, 20, and 34-113, [1996] 1 SCR 825 (sub nom Ross v New
Brunswick School District No 15).

● Malcolm Ross, a teacher in New Brunswick, was terminated from his position in the
school board after publicly making racist and discriminatory comments against Jews
during his off duty time over many years.
● Ross had, over the years, recorded his anti-Semitic views and opinions in four books,
pamphlets, letters to a local newspaper, and a local television interview. A Jewish parent
whose child attended a different school than where Ross taught filed a complaint with
the New Brunswick Human Rights Commission, alleging that the School Board, which
employed Ross as a teacher, had violated a section of the Human Rights Act by
discriminating against him and his children by allowing Ross to continue teaching while
having a negative impact in the community.
● A review panel felt that Ross's off-duty comments degraded the faith and belief of Jews
and further found that the School Board was in fact in breach of the Human Rights Act.
They concluded that the New Brunswick School Board discriminated against those of
Jewish faith by failing to discipline Ross and its almost indifference to the complaints.
● They also stated that by continuing his employment, it endorsed his out-of-school
activities and writings.
● The review panel directed the School Board to place Ross on a leave of absence without
pay for a period of 18 months and to rehire him to a non-teaching position, if one
became available during the 18 months.
 ● The School Board was also told to terminate his employment at the end of that period if
he had not been offered and accepted a nonteaching position or if he published or wrote
anti-Semitic materials or sold his previous publications any time during the leave of
absence or at any time during his employment in a non-teaching position.
● Ross appealed the last condition of his employment based on his freedom of speech
and the Supreme Court allowed Ross' appeal, holding that the last 2 clauses 2 of the
initial order infringed Ross’ freedom of expression and freedom of religion and could not
be justified under section 1 of the Charter.
● The Supreme Court of Canada ruled that Ross's removal from the classroom was
justifiable, on the grounds that, although it did constitute a violation of his freedoms, this
was a reasonable limit, as school teachers must be held to a higher standard of
behaviour. The Court further ruled that the District's "gag order" (that Ross be dismissed
from his non-teaching position should he continue to publish and distribute antisemitic
material) was invalid.

194 paras

3. AB v CD, 2011 BCSC 775 (CanLII), <http://canlii.ca/t/flvt5> at paras 1- 158.

AB - Student CD - Teacher EF - School board

- AB was a student who attended GH school and grew close to CD. He first taught AB
when she was in grade 10. CD often gave AB lots of praise.
 - In grade 11, AB did not have any classes with CD but still visited his classroom. During
this time, other students were present in the classroom.
- In grade 12, AB took one block of peer tutoring with CD. One of ABs spare classes lined
up with CDs prep block. AB spent that spare block in CDs class. At this school, it was
not unusual for students to be in a teachers room during their prep period.
- In her next semester, she took an additional peer tutoring block with CD. AB also started
two clubs that had CD as the teacher sponsor.
- The door to CDs classroom was rarely shut. Students often dropped in and so did
teachers and the principles.

- There were 7 incidents of sexual touching by CD of AB. They occured November

through March in ABs grade 12 year. All these incidents took place on GH school
premises.
- None of CDs fellow teachers observed anything that they thought was inappropriate in
CDs relationship with his students or AB. One teacher (teacher ST) was concerned that
AB might have a teacher crush on CD. She also thought she was spending a lot of time
with CD and felt a bit uneasy. She was new to the school but asked her fiance (another
teacher at GH school) if that was normal and he said it was. Teacher ST did not pursue
the matter any further.

- AB then grew disenchanted with CD in the early part of her spring semester. AB shared
her concerns with a friend who told her CD was manipulating and abusing her. AB
began to distance herself from CD.
- AB then told her mother and reported it to the police

Main issues:
1. Is CD liable to AB for sexual battery?
a. The defence of consent was not able to be used here
b. “The public policy set out in the Criminal Code has the effect that a young person
under the age of 18 cannot consent to sexual contact with a person in authority,
as a matter of law, whether the applicable proceedings are criminal or civil” (para
104)
CD is liable to AB for any damages she suffered as a consequence of
the sexual battery
2. Was Board EF negligent in failing to stop CD from sexual battery of AB?
- Argued that a careful or prudent parent would have done the following:
1. ensured that teachers and administrators were made aware of the conditions that gave
rise to the situation with the teacher YZ specifically, and with cases of inappropriate
teacher-student relationships generally;
a. Teacher YZ was acquitted.
2. required and encouraged teachers and administrators to share all concerns or
suspicions about unusual teacher-student interaction or relationships;
a. No teacher suspected anything suspicious
3. made inquiries into Teacher ST’s wondering whether AB had a “teacher crush” on CD;
 a. Teacher ST did take the steps to investigate and did not find anything that she
would need to report
b. “The fact that a student might have a crush on a teacher does not establish that
the teacher would be likely to commit the criminal and unprofessional act of
sexual touching”. (para 122)
4. provided close oversight in circumstances where a student is spending more than 25%
of her or his school week with one teacher, particularly where that included peer tutoring;
and
a. CD had a reputation of being a teacher who inspired students and challenged his
students to continue to excel. Therefore, it was not seen as inappropriate for
students to be spending lots of time with one teacher
5. made very close inquiries in a situation where a student sought a second block of peer
tutoring with the same teacher.
a. Same as 4

School board was not negligent.

3. If CD is liable to AB for sexual battery, is board EF vicariously liable for CDs

conduct
- “While Board EF gave CD opportunity to spend time with AB, this opportunity
was modest. The contact arranged by Board EF was for group teaching, with
some opportunities for individual work around class hours and during spare
periods. This is not a case of overnight visits or a case where there was intimate
physical care such as bathing.
- The relationship between an English Teacher and a student is not inherently
intimate. The teaching of English can involve discussing issues of sexuality and
life, but that does not inherently lead to physical intimacy. Students and teachers
can share interests in many subjects, including music, sports, and science. That
does not inherently lead to physical intimacy.
- The power conferred by Board EF on CD was to provide grades, and maintain
classroom discipline.
- AB’s vulnerability in the situation was limited, because there were many teachers
and administrators available, and AB was under the care of her parents” (para
157).
Board EF is not vicariously liable.

7. R v Jonkman, 2010 ABPC 245 (CanLII), <http://canlii.ca/t/2c06g>.

Background:
- Jeremy Mannett (the complainant) was a grade 6 student who asked the substitute
teacher (the accused - Peter Jonkman) for help with his work. He said he
mispronounced the accused's name who then came over to Jeremy and grabbed his
arm, twisted it and pulled him out of his chair. Jeremry said the accused twisted his arm
 again and dragged him. At this point, Jeremy was crying and was humiliated in front of
the whole class.
- Jeremy's older brother came to pick him up that day and witnessed the incident
through the window. He ran to tell the principal and Jeremy's actual teacher.
- There were several bruises left on Jeremys arms

Defence Evidence
- Accused stated that the complainant made a comment regarding the accused's name.
He raised his voice to convey that the matter was serious and the complainant was
being rude. He stated that he did not lose his temper but wanted to take the complainant
out to the hallway. The accused testified that he grabbed the complainant by the upper
arm, took him out of his desk and toward the door holding him firmly. The complainant
resisted, broke free and fell to the ground. He said he didn’t intend to harm the
complainant and didn’t see any red marks on the complainant’s arm.
- “He acknowledged that he was frustrated by the fact that the class was not getting back
to work. He acknowledged that he did not give the complainant a chance to leave the
classroom on his own but said “come with me” as he grabbed the complainant. He
thought that the complainant had either fallen or tripped. The accused insisted that he
was not angry during this incident” (para 27)

Conclusion
- “The accused in the present case testified that he may have been frustrated by the
complainant’s behaviour but he was not angry when the incident occurred. I do not
believe that testimony, nor does it raise a reasonable doubt in my mind that the action
taken by the accused was for a corrective purpose” (para 41)
- “The accused did not ask the complainant to leave the classroom before grabbing him
by the arm and pulling him from his desk. He reacted angrily and did not act in a
controlled fashion for the purpose of correction. (para 41)
- “I find that the accused acted in anger in the instant case and not by way of correction.
Furthermore, I find that the force used in this case was excessive in the circumstances.
The accused’s actions were not a sober and reasoned use of force. I find that the
manner in which the accused applied force in this case was excessive. The accused
grabbed the complainant by the arm and pulled him from his desk. This was far different
than taking a child by the hand or guiding the child with a light touch. Objectively viewed,
the force used in the present case was excessive” (para 44)
The accused (Peter Jonkman) was found guilty.

5. Government of Alberta, Responding to Child Abuse: A Handbook (2005), online:

https://open.alberta.ca/dataset/b84e0bda-59d8-4c07-8139-6851df4cf9c5/resource/8aaa5fca-
6518-4bc4-8bbf-02b91d929b48/download/2005-responding-to-child-abuse-handbook-2006.pdf
20 pages

Reporting Child Abuse/Neglect

- Anyone who has reason to believe that a child has been, or there is substantial risk
that he or she will be abused or neglected by a parent or guardian, has a legal duty
under the Child, Youth and Family Enhancement Act to promptly report the matter
to a caseworker
o The caseworker will
§ Determine if the child will benefit from family enhancement or
protection services
§ Contact the police if criminal investigation is required
§ Coordinate response with other agencies if needed
o If you are uncertain about whether to report, call and discuss the situation with
a caseworker.
o Anyone failing to report suspected child abuse while having “reasonable and
probable grounds to believe a child is in need of intervention” is guilty of an
offence and liable to a fine of not more than $2,000. Default of payment of
this fine can lead to imprisonment for a term up to six months. (p.11)
- When any person makes a report, no action can be taken against that person unless
the report is made maliciously or without reasonable and probable grounds

- Some offences committed against children fall under the Criminal Code of Canada,
including
o Physical assault
o Sexual assault and other sexual offences
o Abandoning a child
o Failing to provide the necessities of life

Guiding Principles (p.4)

- The protection and safety of children are everyone's concern.

- The primary responsibility for ensuring the safety and well-being of children lies
with each child's parents/guardians.
- Child intervention services become involved only when parents/guardians are unable
or unwilling to fulfill their parental responsibilities.
- The protection and best interests of children prevail over the interests of
parents/guardians or families when cases of child abuse are reported and/or
investigated.
 - Those responsible for abusing children are held accountable.
- Cultural, family and community factors are considered during investigations.
- Those who investigate cases of child abuse work together on behalf of the child and
family.
- The preservation, health and development of children and families are encouraged
and continually supported. The policy and practices of government ministries, key
professionals and community stakeholders reflect this value while respecting the
family’s and child’s right to privacy.

Recognizing Child Abuse

1. Neglect

The Child, Youth and Family Enhancement Act states that a child is neglected if the
guardian is unable or unwilling to
a. Provide the child necessities of life
b. To obtain for or permit the child to receive essential medical, surgical, or other
remedial treatment necessary to the health or wellbeing of the child
c. To provide child with adequate care/supervision

Neglect is not always obvious. Physical indicators may include that the child is
underweight, dehydrated, has poor hygiene, lacks clean or appropriate clothing suitable
for the weather.

Behavioral indicators may include that the child demands constant attention, has
uninvolved/uninterested parents, has an obvious lack of energy, has poor school
attendance, or indicates that their parents/ guardians are rarely home to look after them.

2. Physical Abuse

Physical abuse is an intentional, substantial, and observable injury to a child.

Physical indicators may include that the child has unexplained or poorly explained
bruises and welts, several scars in a regular pattern, bruises of varying colors and in the
shape of an object, etc.

Behavioral indicators may include that the child is defensive about injuries, has low
self-esteem, is wary of physical contact with adults and is unable to form good peer
relationships.

3. Sexual Abuse
 Sexual abuse is inappropriate exposure or subjection to sexual contact, activity, or
behavior, including prostitution related activities.

Physical indicators may include that the child has an STI, has physical trauma or
irritations in genital areas, has difficulty walking or sitting due to genital/anal pain.

Behavioral indicators may include that the child expresses premature or inappropriate
understanding of sexual behavior, displays inappropriate, unusual, or aggressive sexual
behavior with peers/toys, is excessively curious about sexual matters.

4. Emotional Abuse

Emotional abuse is the impairment of a child’s mental or emotional functioning or

development.

Parent/Guardian’s behavioral indicators may include that they blame or belittle the
child in public/at home, withhold comfort when the child is frightened or distressed,
describe the child in negative ways, hold the child responsible for their own problems or
disappointments.

Child’s behavioral indicators may include that they are overly compliant, passive or
shy, have episodes of aggressive, demanding, or angry behaviour, fear failure and has
trouble concentrating, and constantly apologizes.

Talking to a Child

Do not probe for details. Listen to the information and record it as soon as possible, in the child’s
own words.

Be supportive, tell the child it is right to tell someone. Listen in a calm, non-judgmental manner
and acknowledge the child’s feelings.

Assure the child that what happened was not their fault and tell them you will try to help.

DO NOT ask leading questions, show horror or anger, conduct your own investigation, provide
opinions or judgements, or promise that things will get better.

Education
Teachers are frequently the first to notice indicators of child abuse. All teachers operate under a
"duty of care" to their students and must fulfill that duty particularly as it relates to situations in
which the child is in need of intervention services for any reason outlined under the Child, Youth
and Family Enhancement Act (p.26).

It is mandatory for all school personnel to report every case where there are reasonable and
probable grounds to believe that a child has been, or there is substantial risk that he or she will be
abused or neglected by a parent/guardian and the child is in need of intervention services (p.26).

Teachers do not need specific permission from a principal before making a report directly to
Child Intervention Services. Further, no principal can direct a teacher not to report if the teacher
believes abuse exists (p.26).

Suspected abuse by other students and suspected abuse involving school personnel are not
covered by the Child, Youth and Family Enhancement Act. In these cases, the schools and
school boards must take immediate action.

6. Alberta Teachers’ Association, “Teachers and Section 43 of the Criminal Code” (2007) 3:7
Leadership Update, online:

https://www.teachers.ab.ca/SiteCollectionDocuments/ATA/Publications/School-
Administrators/Leadership-Update/COMM-118-24%20v3n7.pdf

Alberta has not technically outright banned corporal punishment, and this document seeks to
clarify the meaning behind how this is seen practice.

Code of Professional Conduct Section 4 states “The teacher treats pupils with dignity and
respect and is considerate of their circumstances.”
Section 43 of the criminal code states “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, if the
force does not exceed what is reasonable under the circumstances.”

1. There is emphasis on this being used “by way of correction” only.

a. Thus it needs to be educative or corrective in nature
i. Must be sober,reasoned use of force to address the actual behaviour
ii. You cannot use this out of anger or frustration, loss of temper or abusive
personality.
b. The child must be capable of benefiting from the form of correction
i. Children who cannot benefit from this correction are listed as:
1. Children two or younger
2. Teeneagers (12+)
3. Children with a disability or some other factor
2. The force applied must be reasonable
 a. Specifically states courts are NOT to look to the gravity of the conduct of the
student that attracts the punishment in determining whether or not the force is
reasonable.
b. Cannot use an object
c. Slap or other blow to the head or face is not acceptable
d. Force used to degrade is not considered reasonable
e. Force more than a transitory or trifling nature would not be reasonable
f. If it causes injury or harm, or very well could cause injury or harm is not
reasonable
g. The use of corrective force to remove children from classrooms or to secure
compliance with instructions may sometimes be reasonable.
3. Punishments such as five-minute time outs is not considered corporal punishment
4. “Child” means “Child”
a. Anyone who may be a student that is of an age older than 12 but has a mental
capacity of younger than 12 is treated like an adult
b. It is specifically age determined.
5. Conclusion given: Don’t use section 43 of Criminal Code as a means of always enacting
corporal punishment. It COULD be used as a defence to justify in certain circumstances,
but if at all possible, use any other form of punishment or corrective measures.