Civil Litigation, Personal Injury

Inaction could cost school boards in bullying cases

By AdvocateDaily.com Staff

School boards that fail to act on warning signs could find themselves liable for bullying and hazing incidents on site, Toronto civil and commercial litigator Darryl Singer tells AdvocateDaily.com.

Singer, who heads the Commercial and Civil Litigation Practice Group with Diamond & Diamond Law, says while school boards can’t be expected to anticipate every risk students face on their watch, they have an obligation to provide a safe space.

Plaintiffs, who must show an incident was reasonably foreseeable before they can sue for negligence, may have trouble proving their case in instances of one-time or out-of-the-blue violence.

However, in his considerable experience acting for parents of students victimized by bullies, Singer says incidents often have a much longer history.

“Sometimes stuff just happens. If there’s no build-up to a violent act, I tell parents that the school generally can’t be held responsible, because the law recognizes that they can’t be everywhere at all times,” he says. “But when they’re made aware of an issue, then refuse to take any remedial or corrective measures, and the situation escalates to the point of physical injury, that’s when they have a problem.

“Schools stand in for parents during the day, and they have an obligation to provide a safe space for students,” Singer adds.

One of his recent cases, involving a client stabbed on two separate occasions by a fellow student, provides a good example of where the line may be crossed in terms of liability, he says.

“The first time, there was no real build up – the boy just snapped and my client was injured in a minor way on the arm,” Singer says, explaining that the school board could have escaped liability if that was all there was to the incident.

However, he says the situation changed when the attacker was allowed back into the school within days of the first incident – despite the concerns of both sets of parents and other students – and subsequently stabbed the girl again, this time with more serious consequences.

Singer’s client alleges the school board was negligent in that it failed to act on warnings that the student had armed himself with a knife.

“Once they are fixed with knowledge, and fail to take action, that’s where negligence comes in,” he says.

According to Singer, one-off or random incidents could also be actionable if the school failed to take proper precautions or to follow its own safety policies, such as when an injury occurs on an inadequately supervised yard.

Singer’s own wife is a teacher, so he understands the tricky position ministry rules put school administrators in when complaints arise about a particular child’s behaviour. Still, he says incidents too often play out according to a familiar pattern.

“Bullying takes place, and then the parties continually report it to the school, and the school either does nothing, or they try to wash their hands of it because nobody saw it happen," he says.

In one of his first school-related cases, Singer acted for the parents of a child assaulted on by an older boy in various “secret” places on the premises, such as the washroom or unsupervised corners of the yard at recess.

“The parents weren’t interested in suing for money, but they wanted the boy responsible to be taken out of the school so that their child would feel safe,” he explains. “They came back with a refrain that I’ve heard many times, ‘Sorry, but we can’t move another child just because yours feels victimized.’”

Singer says parents in these situations are frequently given the option to switch their own child’s school.

“It’s a huge amount of time, effort and upheaval for someone who is trying to protect their child,” he says. “Ultimately, they felt forced to sue and the matter was resolved to their satisfaction.”

His own son’s experience also provided Singer with an insight into school board workings, when his child fought back after months of anti-Semitic taunting by certain classmates.

“If they had implemented the anti-bullying policies they said existed, we wouldn’t have had any problems. My boy is a big kid — now he’s in university, he works part-time as a bouncer — and it made me realize that if someone like him can be victimized, imagine how many others must be feeling that way,” Singer says. “It makes me angry when schools say they can’t do anything because of another child’s privacy because I think they’re failing children when they do that.

“In the long term, I’d like to see the Ministry of Education put some real guidelines in place allow individual such administrators to have some authority to take protective measures without being concerned about their jobs,” he adds.

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