Although schoolyard bullies have been around forever, it was the 1997 lynching of fourteen-year-old Reena Virk by her own classmates in Saanich, BC that introduced Canada to ‘bullying’.
Since then, numerous families have paid the same price and their names read like a cross-section of Canadian society: Nastoh, Wilson, Hansen, Jubran, Raymond, Parsons, Hubley, Todd, et al. Their backgrounds varied ethnically, racially, religiously and socio-economically, thus so did the criteria they arbitrarily met for bullying. That criteria ranged from trivial to intractable: in Port Coquitlam, they hated Amanda Todd’s ‘goth’ style; in Pickering, Mitchell Wilson’s disability.
In response to a growing body count and public outcry, provinces coast to coast have developed initiatives, launched programs and passed legislation to combat bullying. While British Columbia’s award-winning W.I.T.S.[Walk Away. Ignore. Talk it Out .Seek Help] program has become the country’s gold standard in anti-bullying prevention, it is Nova Scotia’s Cyber-Safety Act, 2013[Canada’s first cyberbullying law] that’s caught the attention of Queen’s Park and personal injury lawyers.
Ontario has been struggling to legislate away its bullying problem since 2005. It has implemented safer school programs and preventative educational policies, partnered with community-oriented NGOs like Kids Help Phone and consulted with at-risk youth advocacy groups largely to no avail. Ontario’s Safe Schools Act, 2000 has not made schools safer and neither has Bill 157, least not according to Greg Doucette or Colton Mayrand’s parents.
Part of the challenge parents of bullied children face lies in the ambiguity surrounding the legal status of bullying. To date, our Criminal Code contains no section on ‘bullying’. However, there are a number of criminal offenses perpetrated by bullies including criminal harassment [as per section 264 of the Criminal Code], uttering threats [as per section 246.1 of the Criminal Code], assault [as per section 265&266 of the Criminal Code] and sexual assault [as per section 271 of the Criminal Code]. Consequently, claims can be established for various bullying-related torts such as assault, battery, intentional infliction of mental suffering etc.
Thanks to the passage of Bill 13 or the Accepting Schools Act, 2012 which amended the Education Act, 1990, negligence and breach of statutory duty have been added to the list, thus providing victim’s families an avenue for the kind of torts and compensation awarded in provinces like Nova Scotia across the border in states like New York.
The elements of a school’s tort liability are as follows: duty of care, failure to exercise a reasonable standard of care, causation, negligence and actual injury. At common law, there is recognition that school officials, school boards and teaching staff all owe a duty of care to students to protect them form harm. That standard of care is not only found in case law precedent established by the Supreme Court of Canada [see Myers v. Peel County Board of Education,  2 S.C.R. 21], it’s also provided in sections 0.1(1) 264 (1)(e) and 302(2) of the Education Act.
To sue a school, a teacher or the school board a victim’s family must demonstrate that the concerned parties owed their child a duty of care. If that can’t be substantiated, then there is no case. Basically, they must show that the authority in question was responsible for their child’s health and safety and that the law can hold them accountable, if they were negligent in exercising that responsibility and caused a student some form of preventable injury. Please note a negligence claim will not be successful if the injury could not have been prevented, even when ‘reasonable care’ as per the “careful and prudent parent” standard set in Myers is exercised. Why? Because the inevitability of an accident nullifies causation, and without it we can‘t talk actual injury or [by extension] any general, special, aggravated or punitive damages that families may want to pursue.
Though Canadian law has traditionally been reluctant to address the tort liability of schools, Ontario seems to be picking up speed in this respect. Frustrated by the inaction of principals, police and school board superintendents, a number of parents are not only seeking redress from the courts, but using them to get their concern for their child’s safety validated. The case filed in Ontario Superior Court against the Bluewater District School Board exemplifies that. Fed up with being politely dismissed or ignored for years on end, a group of Chatham parents whose children were being bullied decided to collectively sue the Board for $34 million. As of now, it’s still the biggest class action suit of its kind in Canada and the heftiest price any educational institution paid for not listening well.
Still, Canadians remain divided as to the efficacy of anti-bullying legislation. While organisations like the Canadian Civil Liberties Association lobbied hard in favour of Bill 13 and its ‘progressive’ contents, think tanks like the Institute of Marriage and Family Canada are far from convinced that we can legislate empathy and respect for others into children.
Regardless, bullying is a vile and dangerous practice that devastates thousands of Canadian children and their families year after year. It can result in all kinds of temporary or permanent psychological and/or physical damage, which [in turn] can generate enormous social and economic costs, particularly if it ends in a fatality.
If your child either was or is being bullied at school and you’ve gone through all the prescribed channels only to have your pleas for your child’s safety ignored, please contact a qualified personal injury lawyer that specializes in child advocacy who will commit themselves to getting what you and your child are entitled to. Bullying is no longer about “kids being kids”. These days it can be about life or death. Don’t let your child become just another statistic and act to secure their welfare now.
Mr. Intraligi is a personal injury lawyer and the founder of www.intraligilaw.ca offering free consultations for all victims of car accidents, slip and falls and all other type of personal injury related matters.