Liability: parents, parent organizations, and school boards.

Inquiries from school administrators and others suggest that parent volunteers are becoming increasingly concerned about the prospect of legal action arising from their voluntary work with parent/school councils and other parent and teacher organizations. In one situation, the parent council was being harassed by a parent who failed to get elected to the council. Neither the president of the council nor the principal could resolve the matter to the satisfaction of the parent, and so they turned to senior administration which requested a letter stating the nature of the problems the parent was causing. The parent found out about this letter and applied to the privacy commissioner for a copy of the letter, presumably so that she could pursue a defamation action against the president. The president needed legal representation to prevent the parent from accessing this information and for any potential defamation action. Fortunately, this school board provided the president with legal counsel of her choice. Would a parent in your jurisdiction get this protection?

It would appear that liability may arise within three different contexts.

1. When acting within the framework of parent/school council legislation

As a general rule parent/school councils are not legal entities, though we understand that some have incorporated as charitable societies. That means that they cannot sue or be sued, though individual members of these councils can sue or be sued. However, also as a general rule, this legislation does not provide parents with the power to make decisions or do anything that is likely to invite negligence and liability. Rather it merely provides parents with limited rights to advise school administration and/or school boards, to participate or provide input into or otherwise be involved in various budgetary or educational processes, and to receive certain types of information, support and a budget for basic operating expenses. In any event, legislation in most jurisdictions protects parents from lawsuits arising from the performance of their roles, at a minimum, within the limited framework of school council legislation. Once a parent steps out of this framework there is greater potential for liability.

2. When acting beyond the scope of school/parent council legislation on school-sponsored activities

To our knowledge, litigation involving parent liability within this context has never been reported in Canada. School legislation may protect volunteers from litigation, or the school board with the deeper pocket may be named as the defendant. In Alberta, for example, the School Act states that, with the exception of defamation actions, school council members are not liable "for any loss or damage caused by anything said or done or omitted to be done in good faith in the performance or intended performance of their functions, duties or powers under this Act or any other enactment." Further, volunteers in general are not liable "for any loss or damage caused by anything said or done or omitted to be done in good faith in the provision of volunteer services for a board, or for any alleged neglect or default in the provision of volunteer services for the board by the volunteers." This does not affect liability of the school board and when something does go wrong, the courts are likely to find liability for direct negligence on the part of the school board.

Beyond a finding of direct liability, the Supreme Court of Canada has suggested that school boards will not easily be held liable for the wrongdoing of their employees or agents. In E.D.G. v. Hammer (2003), a school janitor sexually assaulted a grade three student at least 20 times when she went to the boiler room to clean the blackboard brushes. The child's claim for damages against the school board was unsuccessful. Three types of school board liability were addressed by the Supreme Court:

Vicarious Liability 

The Court noted that the student's claim both in negligence and under vicarious liability, where the school board could be held liable without any wrongdoing in the hiring and supervision of the janitor, was dropped after another decision of the Supreme Court of Canada, Jacobi v. Griffiths, (1999). In Jacobi, the Supreme Court decided that "creation of opportunity without job-related power over the victim or other link between the employment and the tort will seldom constitute the 'strong connection' required to attract vicarious liability". In other words, if a school board required staff to supervise an overnight outdoor education experience where the staff had to attend to the sleeping arrangements and personal hygiene of the students and a staff member sexually assaulted a student, the school board could be held vicariously liable for injury inflicted by a staff member with this "job related" power over the student. Contrary to many earlier decisions, a school board will no longer be held vicariously liable for sexual assaults on students by their employees in the absence of this "strong connection". In any event, parent volunteers are not employees and so the liability of a parent volunteer, even for an intentional harm, could not be deflected from the volunteer to the school board.

Liability for Breach of Non-delegable Duty

This head of liability was designed to address liability for the wrongs of independent contractors or agents. Arguably, parent volunteers who are working on a school-sponsored activity are agents of the school board. Liability for breach of non-delegable duty would apply if school boards owed a duty of care to students that it could not delegate to anyone else. In this case the wrongdoer was an employee and so the Supreme Court applied its analysis of non-delegable duty to employees. It held that the specific duties pertaining to student health and safety set out in the School Act and provisions setting out the duties of school boards did not permit the inference that school boards are generally and ultimately responsible for the health and safety of school children on school premises in a way that would render them liable for abuse by a school employee. Presumably, the same principle would apply to wrongdoing by independent contractors and agents engaged in school-sponsored activities both on premises and off. This reasoning suggests that parent volunteers could not deflect liability for their wrongdoing on school boards on the basis of non-delegable duty.

Fiduciary Duty 

The parties agreed that school boards owed their students a fiduciary duty. School boards have overriding power and influence over their students and students are in a dependent relationship upon school authorities characterized by unilateral discretion. The student submitted that the content of fiduciary duty to students included a duty to promote the "best interests" of students and a duty to ensure that no employee inflicts injury on a child on school premises. The Supreme Court rejected this submission stating that while the fiduciary duty owed by parents to their children includes a duty to act in their "best interests" and the duty to act in their "best interests" could justify particular parental duties, the same does not hold true for school boards. The fiduciary duty of school boards does include a duty to act selflessly, loyally and without self-interest or abuse of power. It does not include a duty to act in the "best interests" of students or to ensure that no employee harms school children on school premises, unless the school board is directly at fault. This reasoning suggests that parent volunteers could not deflect all or part of the liability for their wrongdoing on school boards on the basis of the school boards' fiduciary duty to students. Note that in some jurisdictions, occupiers' liability legislation provides students with an action in damages against school boards, for harm by any person on the premises.

3. When acting beyond the scope of school/parent council legislation on activities that are not school-sponsored

Within this context, parents face the greatest risk of potential liability. The Alberta legislation, for example, protects volunteers only within the context of their volunteer work for a board of education. Subject to legislation that may offer protection for a wider range of volunteer activity, parents and others may be held personally responsible for any contracts or agreements they enter into and they may be liable for any foreseeable damage or injury caused by them.

Parent volunteers have various means of minimizing their exposure to personal liability:

* Check to see whether school or other legislation in your jurisdiction protects you against liability for anything you do within the context of parent/school council legislation or otherwise as a volunteer.

* Check to see whether the provincial home and school association in your jurisdiction protects you. What is your relationship to the provincial association? Do you act as its agent? Do they carry insurance to protect members of their local chapters from liability?

* If you are working on a school-sponsored activity, does your school board or their insurers cover you in the performance of your volunteer work within this activity? Do not execute any contracts or enter into any agreements in your own name.

* If conducting volunteer work that is not school-sponsored, and neither legislation in your jurisdiction nor your school board offers protection to volunteers in this context, carry your own insurance, incorporate as a charitable society to avoid certain aspects of liability or rethink your involvement in the activity.

* What is the scope of protection, if any, in provincial/territorial legislation, by your school board or by your parent association? In what circumstance would this protection apply and to whom? Are you released from liability to your school or school board? Are you also promised indemnification for your costs should a third party sue you? Can you be sued even if at the end of the day the action is dismissed? The Alberta legislation quoted above, for example, offers less protection than legislation stating, "No action lies against a volunteer ..." which means that legal action against volunteers who function within the framework of the legislation cannot be sued at all.

* Make sure that you conduct yourself within the scope of any protection you may have, for example, in applicable insurance policies or legislation.

Eleanor Doctor is a lawyer and the Managing Editor of the Education Law Reporter (www.edlawcanada.com) in Calgary, Alberta. Article first published in the February 2005 issue of the Education Law Reporter and is reprinted with permission.