Got an "F"? Sue the teacher!

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 cases that deals with educational malpractice is a well-known 1976 decision of the Court of Appeal of California called Peter W. v. San Francisco Unified School District. This case is important in the Canadian context as it aptly describes some of the policy reasons underlying the reluctance of Canadian courts to entertain claims of educational malpractice.

The plaintiff in Peter W. v. San Francisco Unified School District alleged that the school district and its employees had failed to provide him with "adequate instruction, guidance, counseling and/or supervision in basic academic skills such as reading and writing". As a result of this negligence, the plaintiff said that he graduated from high school with a reading level equivalent to someone in fifth grade and was not qualified for most employment. The Court found that for policy reasons, the School District did not owe a duty of care to the student for the claims alleged and that failure in academics was not an injury recognized by the law. The Court stated the following in relation to the policy reasons for not allowing the claim:

"Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might--and commonly does--have his own emphatic views on the subject. The 'injury' claimed here is plaintiff's inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified."

The Court also noted that to hold individuals involved in the education system to an "actionable 'duty of care,' in the discharge of their academic functions, would expose them to the tort claims--real or imagined--of disaffected students and parents in countless numbers." Implicit in this statement is the acknowledgement that successful teaching is subject to numerous uncontrolled (or uncontrollable) variables. These include peer group, home environment, social economic status, learning disability, or even culture or ethic background.

These passages from the Peter W. case underline some of the policy concerns that have prevented the tort of educational malpractice from--as yet--becoming an everyday reality in our courtrooms. Courts in Canada have generally expressed reluctance to engage in an assessment of the quality of education provided by an institution. Justice La Forest of the Supreme Court of Canada in Jones v. The Queen stated that "[t]he courtroom is simply not the best arena for the debate of issues of educational policy and the measurement of educational quality".

The concern that this could become the next frontier for tort litigation remains, though. Despite the general reluctance of courts in Canada to recognize educational malpractice as a tort, some courts have indicated that under the right circumstances, a claim of educational malpractice should be considered. In Gould v. Regina (East) School Division No. 77, the Court made the following statement, which opened up the possibility that courts may consider claims of educational malpractice:

"It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards. Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice. " [Emphasis added]

A number of cases have relied on the above statement from Gould v. Regina (East) School Division No. 77 and have refused to strike out claims based in part on educational malpractice, before the matter goes to trial. In these cases, educational malpractice is often claimed in addition to complaints of breach of contract, breach of a fiduciary duty, or negligent misrepresentation. The Alberta Court of Queen's Bench has, for example, refused to strike claims of educational malpractice which are intertwined with breach of fiduciary duty and breach of Treaty claims in the context of native residential schools litigation.

In L.R. v. British Columbia, the plaintiffs in a class action claimed that a residential school for the deaf and blind had failed to educate its students. The educational malpractice claim was made in addition to claims of sexual, physical, and emotional abuse. In relation to the viability of educational malpractice claims, the British Columbia Court of Appeal stated the following:

"As noted above the chambers judge concluded that the law does not recognize a cause of action for educational malpractice. That is undoubtedly the general rule but the authorities hold out the possibility of exceptions in extreme cases. Therefore, I am not prepared to rule out the possibility at this stage of the litigation that the circumstances may be so egregious as to present an exception. I propose to address the class proceedings considerations on the assumption that it is not plain and obvious that any claim for educational malpractice must fail."

The Court was careful to note, however, that "the plaintiffs will face a formidable task against heavy authority in attempting to establish this case as an exception to the general rule." The Court ultimately concluded that in order to avoid complicating the class action litigation involving the claims of abuse, the claims for educational malpractice should be struck out.

In conclusion, after the statement in Gould, some courts have been unwilling to strike out claims of educational malpractice before the matter proceeds to trial. Thus far, however, Canadian courts have yet to make positive finding of educational negligence and award damages under the heading of educational malpractice. As the L.R. v. British Columbia case notes, plaintiffs will likely face an uphill battle in establishing such a claim.

It is clear that if educational malpractice were ever to become entrenched within the Canadian legal system, it would undoubtedly change the landscape of our education system and result in increased exposure to liability for the people and institutions involved in educating Canadian students. Despite strong policy reasons not to enter this fray, the door to such litigation is yet to be shut.

Garett A. Eisenbraun is a lawyer with the firm of Field LLP in Edmonton, Alberta. Special thanks to Field's research lawyer Sandy Gillett for her contributions to this article.