Got an "F"? Sue the teacher!(FEATURE on law schools)

• Author: Eisenbraun, Garett A.

Without question North American culture is characterized by a high level of litigiousness. Be it personal injury, medical malpractice, or professional negligence, it appears that litigants are forever looking for ways to impose liability on the ubiquitous third party. It should therefore come as little surprise that the spectre of litigation has touched the education that teachers provide to our children. Litigation in this area is generally described under the rubric of educational malpractice. While most people are familiar with the concept of medical malpractice or even legal malpractice, educational malpractice is a lesser-known claim that has yet to find any degree of success in Canada.

The doctrine of educational malpractice is, not surprisingly, an American construct. Generally speaking, US tort law is a number of years ahead of the curve, particularly when compared with Canada. Some Canadian court decisions, however, have opened up the possibility that a plaintiff could be successful, given the right set of facts, in claiming educational malpractice. That possibility, along with the knowledge that claims for educational malpractice have been successful in the United Kingdom, means that the issue of educational malpractice warrants careful consideration.

What is educational malpractice? Educational malpractice is a legal claim based in the tort of negligence, specifically professional negligence. The British Columbia Court of Appeal in a case called L.R. v. British Columbia notes that educational malpractice has been defined as "the failure to impart knowledge or teach practical skills". Claims of educational malpractice may be directed against individual teachers as well as the school boards or post-secondary institutions that employ them. They all arise, however, from the claim that educators negligently failed to impart their knowledge to those in their classes.

To date, claims for educational malpractice have met with little if any real degree of success in Canada. In the past, plaintiffs have claimed educational malpractice for a variety of alleged wrongs including failure to teach 30% of a Social Studies class and failure to provide "proper education and corrective instruction." Traditionally, courts have dismissed these claims on the basis that the tort of educational malpractice is not a recognized cause of action in Canada.

In the United States, claims of educational malpractice have had mixed success. One of the leading US...