Bullying Cases

In September, 2012, the Supreme Court of Canada released its first decision addressing the issue of cyber bullying. In A.B. v. Bragg Communications Inc., the court specifically dealt with cyber bullying involving children. The court in its decision specifically recognized that cyber bullying can cause harm to children. In addition, the court decided that children have the right to proceed anonymously (through the use of a pseudonym) should they choose to sue the perpetrators of the bullying.

Bullying in general including cyber bullying has been a hot topic of discussion among politicians, litigators and educators throughout Canada. The tragedy involving a British Columbia teenager, Amanda Todd, who killed herself after being subjected to cyber bullying and posting YouTube videos about her experiences has inspired many people to re-evaluate bullying within the context of today’s technologies and the Internet. The House of Commons has been called upon to develop a national strategy to prevent bullying.

In Ontario, the Education Act (Education Act, R.S.O., 1990, c.E.2, as amended by Bill 13, the Accepting Schools Act, 2012, S.O, 2012, c.5) defines bullying as aggressive and typically repeated behavior that causes harm, fear or distress to another individual and that occurs in a context where there is a real or perceived power imbalance between the bully and the individual being bullied. The bullying is based on many factors such as size, age, peer group power, religion, sexual orientation, gender, race and disability. The Ontario Education Act does place a positive obligation on school principals to investigate acts of bullying.

Professor Shaheen Shariff of McGill University recently defined cyber bullying has “the use of a range of digital media such as cellular and smart phones, e-mail, popular social networking sites, digital videos, and photographs to post or distribute offensive or demeaning forms of expression, insults and threats, gossip, rumors, modified and / or intended photographs, impulses or offensive tweets and insults sent out on Twitter and videotapes of beatings, sexual assault, and unauthorized films of intimate sexual acts which are distributed online for the purpose of embarrassing or threatening targeted peers or authority figures”.

The insidiousness of cyber bullying is that it can occur and be perpetrated anonymously and published to a wide audience. In most cases, information that is posted on the Internet remains permanently available to the world.

Bullying and cyber bullying are intentional acts meant to cause harm to another person and victims have rights including the right to seek judicial injunctions and monetary damages. In some cases, bullying and cyber bullying can be considered criminal acts. Therefore in addition to tortuous civil liability for bullying which can amount to libel, invasion of privacy, assault and intentional infliction of mental suffering, the perpetrators can be charged criminally.

There is little doubt that cyber bullying causes harm to children. The psychological harm caused to children by bullying and cyber bullying can be devastating and have lifelong consequences and in some cases, cause children to commit suicide. Because cyber bullying allows individuals to anonymously bully others, it is particularly harmful since the victims feel an inability to seek redress for the wrongful acts. The fact that cyber bullying is often anonymous can encourage participation in this tortuous act.

While the law recognizes the right of victims of bullying and cyber bullying to commence legal action seeking redress from the perpetrator, many children and their parents do not have the financial means to exercise their rights. Litigation is extremely expensive and in many cases, victims are unable to exercise their rights.

Bullying in all forms can cause irreparable damage to a child’s life and in far too many cases cost them their lives. While tort law has allowed the victims of bullying to seek redress from their perpetrators, the law has been slow to develop to hold school boards and officials libel and accountable for bullying occurring directly or indirectly out of school activities. The Ontario government has responded to the demand for updated policies and laws involving schools and bullying and with the passage of Bill 13, an Act to Amend the Education Act with respect to bullying and other matters, principals and school officials are now charged with the duty to develop anti-bullying policies within their schools and to react quickly to allegations of bullying in schools. Bill 13 is a strong step in the right direction. Bill 13 requires school boards to establish policies and guidelines for the prevention and intervention of bullying in schools. It also provides a principal with the power to suspend a student for bullying if the students presence continues to create an unacceptable risk to the safety of another person. Importantly, Bill 13, as stated, requires school boards to establish policies and guidelines for the prevention and intervention of bullying in schools but also creates an onus on schools and school boards to prevent and react in a timely manner to incidences of bullying.

In the past, many cases concerning bullying in schools have been tried before the Ontario Human Rights Tribunal. Some of the cases arising out of this Tribunal provides personal injury lawyers with guidance on how to tailor bullying cases in the context of civil actions.

There have been actions commenced in Ontario wherein children and their parents have commenced court actions against school boards and school officials seeking damages arising out of bullying activities in the school. However, to date, there are no reported decisions in Ontario holding a teacher, school or school board liable in tort for failing to intervene in cases of bullying. However, to date, there have been no court decisions in Ontario holding school boards liable in negligence for failing to intervene in cases of bullying.

In the United States, court actions have resulted in school boards being found liable in negligence for failing to take appropriate steps in bullying cases to protect victims. In some cases, courts have found school boards liable for being deliberately indifferent in bullying cases. In other cases, the US Supreme Court held the school board liable where an arrest was so severe, persuasive and objectively offensive that it deprived the students to the educational opportunities and benefits provided by the school. In other cases, schools were held liable where the steps that they did take to deal with bullying were insufficient.

The issue in Ontario is the manner in which to properly frame bullying cases in tort (wrongful acts by a person or persons causing harm to another). In respect of holding schools and school officials liable, a victim must first establish that the school, school board or school officials owed them a duty of care. In Ontario, courts have repeatedly held that school boards and school officials do have a duty of care to protect their students from harm. There is a statutory duty of care defined in the Education Act. For instance, section 264(1)(e) of the Education Act states that: it is the duty of a teacher to “maintain, under the direction of the principal, proper order and discipline in the teacher’s classroom and while on duty in the school and on school ground.”. It follows therefore that any teacher who witnesses bullying must take action to intervene. With respect to the administration of schools, the principals duty is broader than that of the teachers. Principals must impose policies and take steps to prevent harm to students. Section 265(1)(m) of the Education Act makes it clear that principals have a duty to maintain proper order and discipline in the school. In addition, principals must take steps to prevent physical or mental harm from students. Principals have the right to suspend or expel a student who has been bullying another student, regardless of whether or not the bullying has caused mental or physical harm to another student.

At common law, there is a recognition that school officials, school boards and teachers owe a duty of care to students to protect them from harm. The standard applies to schools and school officials which has been defined in 1981 by the Supreme Court of Canada in Myers v. Peel County Board of Education as that of a “careful and prudent parent.” When applied to bullying in schools, the question would be what would a careful and prudent parent have done to prevent or intervene in bullying cases.

As indicated, victims of bullying have protection and can seek redress through a number of legal principles and statutes. Victims can commence legal action against the perpetrators of bullying as well as schools, school boards and school officials. Claims can be established in various torts such as assault, battery, intentional infliction of mental suffering, harassment, negligence and breach of statutory duty.