Educators' Negligence and Liability

• Author: Theresa Shanahan
• Pages: 151-186

151

CHAPTER 6

Educators’ Negligence and Liability

Theresa Shanahan1

A. INTRODUCTION

Accidents in schools can result in negligence lawsuits against educators.

Educators are respon sible for taking all re asonable steps to provide a safe

and positive learning environment for students. School safety and the

duty to supervise students underpin educators’ liability for negligence.

The legal concept of ri sk management and the law of tor t shape educators’

duties in thi s area.

School accidents fall under tort law. A “tort” is a wrong that is com-

pensable in da mages. Tort law allows a cour t to hold liable someone who is

found legally re sponsible for another’s loss or injury. The object ive of tort

law is to restore the i njured party to t he position they would have enjoyed

had the wrong not occurred. There are two kinds of torts. An intent ional

tort is deliberate harm to another person, such as assault or defamation.

Intentional torts result in criminal proceedings. An unintentional tortis

the uninte ntional harm to anot her person caused by a person’s actions or

failure to ac t. Unintentiona l torts result i n civil proceedi ngs. Negligence is

an uninte ntional tort. Thi s chapter is concerned wit h unintentional tor ts;

specical ly, this chapter wil l address educators’ liabi lity for negligence in

1 This ch apter draws upon my unp ublished teach ing materia ls — in part icular,

my curric ulum and cour se material s on negligence and l iability of e ducators

for various c ourses I have creat ed and taught — inc luding the “Et hics and Lega l

Studies in E ducation” online t utorial whic h I created at the Fac ulty of Educat ion,

York University, for the ba chelor of education st udents study ing to become

teachers, a nd also curr iculum mate rial I created f or the Principa l’s Qualica-

tions cours e.

152 / Theresa Shanahan

their care a nd supervision of t heir students. The f ocus of this ch apter is on

educators’ liabil ity for accidents leadin g to student injury.

B. WHAT IS NEGLIGENCE? THE LEGAL ELEMENTS OF

NEGLIGENCE

Negligence is unintentional harm caused by the failure to eliminate un-

reasonable risks of injury. A risk is “unreasonable” if it could have been

reduced or elimi nated by common sense. Negligent actions in education

can involve civi l lawsuits against te achers, principals, and sc hool boards.

The legal elements of neg ligence include the followi ng:

1) a duty of care owed, as in educators havi ng a duty of care to their stu-

dents

2) a standard of care, in t his case, the “educator’s standa rd of care,” to pre-

vent reasonably foreseea ble risks of harm

3) a breach of the standard of care, namely, conduct that fa lls below the

standard of care

4) damage, or quantiable ha rm, to the plainti as a result of the breach

5) causation — that is, the harm or damages done must ow from the

breach of the duty2

C. THE EDUCATOR’S DUTY OF CARE

Teachers and principa ls have a duty of care towards t heir students. Educa-

tors’ duties towards t heir students are set out and gover ned by legal stat-

utes as well as i n the common law. Supervising a nd keeping students sa fe

is one of an educator’s most important duties. This duty includes main-

taining order and discipline in the school environment. Educators are

thus responsible for the health, comfort, and welfare of students. Super-

vision requir es that educators watch and d irect student act ivities.

In Canada, an educator’s duty to supervise under pins the law of neg-

ligence and liability of educators. It is established and dened in both

statute (legis lation) and common law (caselaw). Every provi nce in Canada

has an ar ray of education statutes th at organize the educat ion system and

set out the duties and responsibilities of teachers, principals, and school

boards, and the minister responsible for education. For example, the On-

2 See Hussack v Chilliwack School D istrict No 33, 201 1 BCCA 258 at para 33 [Hussack],

citing Mus tapha v Culligan of Canada Ltd, 2008 SCC 27 at pa ra 3.

Educators’ Negligence and Liability / 153

tario Education Act,3and its regulations, organizes the education system

and sets out numerou s duties of teachers under section 264(1) and numer-

ous duties of principa ls under section 265(1). Similar sta tutory provisions

can be found in each provincia l education statute. In Ontario, the educa-

tor’s duty to supervi se is articul ated under the Education Act in t his way:

Duties of teache r

264. (1) It is the duty of a tea cher and a temporar y teacher,

discipline

(e) to maintain, under the direction of the principal, proper order

and discipl ine in the teache r’s classroom and wh ile on duty in the sc hool

and on the school g round;4

Further, und er Regulation 298 of the Onta rio Education Act:

20. In addition to t he duties assigned to t he teacher under t he Act and by

the board, a te acher shall,

(a) be responsible for eective instruct ion, training and evaluation of

the progress of pupi ls in the subjec ts assigned to the te acher and for

the mana gement of the class or class es, and report to the prin cipal

on the progress of pupi ls on request;

(b) carry out the supervisory duties and instructional program as-

signed to the te acher by the principal a nd supply such inform ation

related ther eto as the princip al may require;

(c) where the board has appointed teachers under section 14 or 17,

co-operate fully with such teachers and with the principal in all

matters re lated to the inst ruction of pupil s;

(d) unless otherw ise assigned by the principal, be present in the cla ss-

room or teaching area and ensure that the classroom or teaching

area is ready for the reception of pupils at least  fteen minutes be-

fore the commence ment of classes in t he school in the morn ing and,

where applicable, ve m inutes before the comm encement of classes

in the school i n the afterno on;

(e) assi st the principal i n maintain ing close co-operat ion with the com-

munity;

(f) prepare for use i n the teacher’s class or cla sses such teaching pl ans

and outlines as are required by the principal and the appropriate

supervisory ocer and submit the plans and outlines to the prin-

cipal or the appropriate super visory ocer, as the case m ay be, on

request;

3 RSO 1990, c E.2.

4 Ibid, s 264(1)(e).