Got an "F"? Sue the teacher!Without question North American North American
named after North America.
North American blastomycosis
see North American blastomycosis.
North American cattle tick
see boophilusannulatus. culture is characterized by a high level of litigiousness Litigiousness
Littleness (See DWARFISM, SMALLNESS.)
a fortune is dissipated through the protracted lawsuit of Jarndyce vs. Jarndyce, and the heir dies in misery. [Br. Lit.: Dickens Bleak House] . Be it personal injury, medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. , or professional negligence professional negligence n. See malpractice. , it appears that litigants are forever looking for Looking for
In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with. ways to impose liability on the ubiquitous third party. It should therefore come as little surprise that the spectre of litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. has touched the education that teachers provide to our children. Litigation in this area is generally described under the rubric RUBRIC, civil law. The title or inscription of any law or statute, because the copyists formerly drew and painted the title of laws and statutes rubro colore, in red letters. Ayl. Pand. B. 1, t. 8; Diet. do Juris. h.t. of educational malpractice Malpractice in the field of education has traditionally not been recognized, apparently due to the difficulty in relating teaching methods to outcomes in individual cases. . While most people are familiar with the concept of medical malpractice or even legal malpractice A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer's conduct in various situations. , 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 A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. 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
The British Columbia Court of Appeal (BCCA) is the highest appellate court in the province of British Columbia, Canada. in a case called L.R. v. British Columbia British Columbia, province (2001 pop. 3,907,738), 366,255 sq mi (948,600 sq km), including 6,976 sq mi (18,068 sq km) of water surface, W Canada. Geography
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 United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , 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 The San Francisco Unified School District is a public school district in San Francisco, California.
The district was California's first public school district when it was established in 1851. . 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 Standards of care are medical or psychological treatment guidelines, and can be general or specific. They specify appropriate treatment protocols based on scientific evidence, and collaboration between medical and/or psychological professionals involved in the treatment of a given , 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 Adj. 1. implicit in - in the nature of something though not readily apparent; "shortcomings inherent in our approach"; "an underlying meaning"
underlying, inherent 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 The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. 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 Community standards are local norms bounding acceptable conduct. Sometimes these standards can itemized in a list that states the community's values and sets guidelines for participation in the community. 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 misrepresentation
In law, any false or misleading expression of fact, usually with the intent to deceive or defraud. It most commonly occurs in insurance and real-estate contracts. False advertising may also constitute misrepresentation. . The Alberta Court of Queen's Bench Queen's Bench n. 1) the highest court in Great Britain during the reign of a Queen, so that opinions are identified as a volume of Queen's Bench (QB). 2) in the United States, organizations of women lawyers, dating from when women were a small minority of practicing 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 en·trench also in·trench
v. en·trenched, en·trench·ing, en·trench·es
1. To provide with a trench, especially for the purpose of fortifying or defending.
2. 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 LLP - Lower Layer Protocol in Edmonton, Alberta. Special thanks to Field's research lawyer Sandy Gillett for her contributions to this article.