It is almost inevitable that over the course of your career as a vice-principal or principal that some harm will befall an individual at your school, or, in any event, be alleged to have occurred. Since you are the “captain of the ship”, you will be named in any litigation, even if you were diligent in taking preventative measures and responded appropriately in the moment. Fortunately, only a small number of these incidents will result in claims of negligence against staff, vice-principals, principals or boards; an even smaller number will result in a damages award against the board.
What do I do if I am named in a Statement of Claim?
- Don’t panic. You are indemnified by (have legal protection from) your board under your Terms and Conditions of Employment (contract).
- Call your supervisory officer to inform the board of the lawsuit.
- Call OPC Protective Services for reassurance that you are indemnified by your board.
- If you are only mentioned in the text of the Claim, you are not a defendant and therefore have no obligation to respond to and/or defend the Claim.
- If you are named on the first page of the Claim in the “title of proceedings” as a defendant, the law requires that you be served with the claim personally. This can be done in a number of ways, but most often a process server will deliver the claim to you in person. It is possible that you may be served at the school and in front of other people. The law permits this.
- Defendants are entitled to tell their side of the story in a Statement of Defence. The law specifies the time within which a Statement of Defence must be filed. In the case of a Claim that names you because of your work as an administrator, the Board normally will defend and indemnify you in accordance with your Terms and Conditions of Employment.
ADVICE:
- Upon being served with a Claim, do not ?panic. All costs associated with the Claim (legal fees, damages, etc.) will most often be borne by the board’s insurer. Most boards in Ontario are insured under the Ontario School Boards Insurance Exchange (OSBIE). See www.osbie.on.ca
- The Claim will likely exaggerate the degree and extent of the allegations against you and the other defendants and overstate the harm suffered by the plaintiffs. That is because the Claim is usually prepared early in the process. The plaintiff’s counsel makes the pleadings sufficiently broad to encompass any information that may be revealed later.
- As soon as you receive the Claim, contact your supervisory officer to inform him or her of the Claim and to receive direction. The board may already be aware of the litigation.
- Contact the OPC Protective Services for support and advice. It is our practice to open a watching brief, meaning that we monitor the handling of the Claim by the board and its counsel but only step in on your behalf if there is a conflict of interest between you and the board.
- You are likely to be interviewed by an investigator (usually with a claims adjuster from the Ontario School Board Insurance Exchange (OSBIE)) for insurance purposes. It is OSBIE or another insurance company that will retain counsel to defend the Claim on the board’s behalf. Given your status as an employee and barring any acts on your part that would disentitle you to coverage, the insurance company’s lawyer will act on your behalf as well. Ask for a copy of the statement you make to the investigator, confirm that it is accurate or, if necessary, make changes to it. Request a copy of the final statement for your records. You may wish to forward a copy of this statement to the OPC Protective Services to be added to your file.
- In the event that others of your colleagues are named in the claim, it is important that you not discuss the matter with them, except with the consent of your OSBIE counsel.
Will I have to testify in court?
- While it is possible that the case will proceed to trial, board insurance companies resolve the vast majority of claims without going to trial. However, most cases will require the parties to go through an examination for discovery, where the opposing lawyer is given the opportunity to ask you questions, under oath, about the incident(s) giving rise to their client’s alleged damages. The lawyer for the board will prepare you and be with you throughout the process.
How does a court determine whether the principal is negligent?
- There are many elements that must be considered in an assessment of whether a defendant (board, principal or otherwise) has been negligent, and is thus liable for damages:
- Does the defendant have a duty of care to the plaintiff? If not, there is no liability (if the incident occurred in a school or at a school-related event, a principal or vice-principal is likely to have a duty of care, but if the incident occurs “off-property” or without a sufficient nexus to the school, then this might be an issue).
- If so, what is the standard of care in the circumstances?
- Has the defendant met the standard of care? If yes, the inquiry ends. If no, the inquiry continues.
- Has the plaintiff suffered damages?
- Were those damages reasonably foreseeable?
- Were those damages caused by the negligence of the plaintiff?
- Has the plaintiff contributed to those damages?
- A court will ultimately assess liability that flows from a breach of the duty and standard of care.
ADVICE:
- The Board/OSBIE lawyer, using the information you and other defendants and witnesses?supply, will prepare all documents, including the Statement of Defence. The lawyer will also help you in the event the matter proceeds to examinations for discovery and even to a trial.
What can I as an administrator do to mitigate risk?
- It is far better to exercise due diligence every day as a means of preventing events that might give rise to litigation than to be in the position of responding to a claim and defending your actions after there has been an accident.
- There are a number of steps that you, as a principal or vice-principal, can take to exercise due diligence and otherwise manage or reduce the risk of possible litigation.
ADVICE:
- File accident reports within OSBIE timelines.
- Ensure board policies are in-serviced and implemented.
- Communicate the board’s policy expectations to staff and students often and in a variety of media.
- Understand, model and emphasize to staff the main elements of supervision, encouraging them to consider the number of students being supervised at any one time; the nature of the exercise or activity; the age of the students; the degree of training and skill of students in the activity; the nature and condition of any equipment being used; competence and capacity of the students (including children designated as exceptional); and the degree of risk compared to the educational purpose of the activity or exercise.
- Identify hazards in the school and on school property through daily inspection.
- Undertake or delegate all required Occupational Health & Safety Act inspections and ensure that any non-compliance is promptly reported to the board.
- Document follow-up on work orders and repairs with school personnel.
- Develop (and if necessary, follow) contingency plans?for emergencies and unexpected departures from standard supervision or due diligence.
- Know the statutory duties of care as outlined in the Education Act, the Occupational Health and Safety Act and other legislation.
- In the event litigation does ensue as a result of a school-related incident, OSBIE will defend you and the board on the basis of your measurable, observable actions (in other words, your exercise of due diligence).
What do terms such as “negligence,” “vicarious liability” and “contributory liability or negligence” mean?
- “Negligence” refers to an individual’s failure to exercise the degree of care expected of a?reasonable person in the same circumstances?to protect others from a foreseeable and reasonable risk of harm.
- “Liability” means “legally responsible.” If someone has been found negligent in a specific set of circumstances, he or she is said to be liable for the damages or harm suffered by the victim.
- “Vicarious liability” is the attachment of responsibility to a party for harm or damages caused by another person in a negligence lawsuit. This concept is often used to make an employer liable for the negligence of its employees even if the employer did not do anything wrong. The liability flows simply from the fact of the employment relationship – the law holds that, as the person/entity responsible for the activity or enterprise in question, the employer should be held responsible for loss to third parties that result from the activity or enterprise. Note that the employer corporation (i.e. the school board) can also be found negligent for its own acts, e.g., substandard hiring,?a failure to check references, the absence of or an inadequate policy, inadequate or no training.
- “Contributory negligence” is the partial responsibility conferred upon the plaintiff by the court for the harm that he or she has suffered. ?It does not relieve the defendant of responsibility for the harm; rather, it allocates the burden of damages in accordance with the percentage of liability attributed to each party.
To whom does a principal owe a duty of care?
- Principals owe a duty of care to students on school premises during official school hours and while they are engaged in school-related activities
- Principals owe a duty of care to students off the school premises when students are engaged in school-related activities or where there is a sufficiently close connection between the off-property conduct and the school.
- Principals owe a duty of care to school staff.
- Principals owe a duty of care to school visitors.
- In assessing whether a duty of care exists for in-school activities that take place outside of school hours, the court will likely consider whether the activity was board-sanctioned, curricular or extra- curricular, whether the adult supervisors are acting within the scope of their employment, what any contract about the activities says and the extent to which individuals involved have the status of invitees.
- In assessing whether a duty of care exists for activities off the school premises, the court will likely consider DSB policies and procedures, whether transportation was supplied to and from the activity by the board and whether the activity in question is a school-sanctioned excursion or field trip.
What is the standard of care expected of a principal?
- Vis-à-vis school staff and school visitors, ?principals must exercise a standard of care that a reasonable person in similar circumstances would exercise to avoid exposing staff or visitors to an unreasonable risk or harm.
- Vis-à-vis students, principals must exercise the degree of care, which a “prudent and careful parent of a large family” would exercise in similar circumstances to avoid exposing students to an unreasonable risk or harm.
- The standard of care is measured against the risk associated with the activity – the greater the inherent risk from the activity, the higher the degree of care required.