Legal Memo

        Another key case identifying a duty of care owed to university students is Powlett v University of Alberta where the university Board of Governors was found to owe a positive duty of care to a first year student to put an end to or supervise initiation by second-year students which had caused the student’s injuries. Although this duty included both an “act or omission”, it was founded on the student’s status as a student in residence and the Board’s duty to exercise care “so long as he [the student] was in residence in the buildings over which the Board had the power and duty of control.” This condition is absent in the present case since Law School did not have physical control over the premises where the harassment occurred.

2) Is this relationship likely to be found to be analogous to an existing category?

        The use of categories for finding a duty of care is not restricted to identical fact situations but can be extended by analogy when conditions are similar to an existing duty. One similar relationship giving rise to a duty of care is the one owed by school boards to secondary students to take action to prevent discriminatory harassment from other students: North Vancouver School District No 44 v Jubran. 

        However, that case can be distinguished from the present relationship on three key differences: 1) secondary students are typically minors while university students are not (however this fact must be clarified); 2) the nature of a secondary school environment is different from that of a university; and 3) Jubran concerned physical and verbal harassment but Future Lawyer endured online harassment. The duty of secondary schools derives from the doctrine of loco parentis – that parental rights have been delegated to school authorities and impose obligations of supervision and control. Pacheco v Dalhousie University outlines how modern universities have explicitly excluded loco parentis in its Code of Conduct so it is unlikely that the duty owed by secondary schools will be held as analogous. 

        The case most likely to assert an analogous category is Pacheco, which demonstrates that a university has a “duty to protect its students, faculty, members of the administration, staff and, indeed, members of the public who may be affected by the conduct of any member of the University community”. This is not considered an established category for the present lawsuit because of the small but important distinction focusing on the university’s “control over the non-academic behaviour of its students” to prevent harm to third parties, rather than the present cause of action which focuses on a duty of the Law School to protect its students from unknown third parties. In other words, it is the difference between preventing positive and harmful acts from being committed and protecting potential injured parties from harmful acts that are committed within or beyond the control of the university.

        Nonetheless, this duty is the strongest case for establishing a duty of care owed by Law School, especially since the harm was also perpetrated through threatening emails. However, an argument can be made to differentiate Pacheco on the facts, since in that case the perpetrator was not only a student of the university, but also plainly self-identified, but in the present suit, not only is the perpetrator unknown but it is uncertain if he/she is a student or employee of Law School. This is significant because it is unreasonable to hold a Law School or any party responsible for acts that are beyond their control, and this will be an important element in the Standard of Care issue.

3) Is the relationship likely to be recognized as a special category of duty?

        Common law duties of care focus primarily on positive acts causing harm, however, as previously mentioned, there are notable exceptions that impose a duty of affirmative action. The foundation of this duty is a “special relationship”, therefore it is necessary to examine the likelihood that the court will consider the relationship between universities and students as such.

                Duty to Control

        Potentially three special duties to control could be claimed: duty to control, vicarious duty, and fiduciary duty. However, because the second two have a very low chance of succeeding, only the duty to control will be analyzed. Similar to but distinct from vicarious liability, the duty to control creates a positive obligation to prevent harm. An important condition for caselaw is the acceptance of the notion “that the relationship of student to university as educator can bear many of the hallmarks of the relationship of employee to employer” from University of Western Ontario.” The relevant case law concerns situations of harassment in the workplace and the duty of the employer to control the environment and halt the harassment. The affirmative duties required of employers include: 1) A duty to respond promptly and effectively with a thorough investigation; 2) A duty to take reasonable steps to prevent further incidents of harassment; and 3) The response must be both timely and corrective. 

        The duty owed by employers to stop harassment includes harassment caused by non-employees as well as employees because the failure to act “perpetuat[ed] the poisoned work environment”.  Furthermore, in Hinds v Canada, the employer was found liable for the racial discrimination suffered even though the harasser was never identified.  Although it is clear that employers owe a duty of care to prevent harassment in the workplace, it has not been established for universities in relation to online harassment suffered by its students. The nature of the harassment suffered by Future Lawyer was not a product of her physical environment of which she had no control over, but through e-mails. In the cited cases, the harassment was a form of discrimination, which has not been confirmed in the content of the threatening e-mails. Moreover, common law has not established that the duty owed by a university is equivalent to the duty owed by an employer.

        The content of the threatening emails is unclear and is important to ascertain because it will determine whether Guzman and Hinds are likely to be interpreted as binding precedent for the present lawsuit. In Guzman, the sexual harassment suffered was considered a form of discrimination in violation of the British Columbia Human Rights Act, and the issue in Hinds concerned harassment in the form of racial discrimination in contravention to the Canadian Human Rights Act. Both Acts imposed a statutory obligation on employers to maintain discrimination-free employment. It is presently unknown whether the content of the emails received by Future Lawyer would amount to discrimination, which would essentially determine the relevance of Guzman and Hinds. In addition, since the protection from discrimination identifies employment but not enrolment in a university, it is necessary to examine the Law School’s Code of Conduct for any equivalent provisions that might give rise to a duty to control.

4) Is this relationship likely to meet the test for finding a novel duty of care?

        Since there is no obvious precedent that establishes an affirmative duty of care owed by a university to its students, there is a considerable chance that the court will apply the full Anns/Cooper test to see if a novel duty of care will arise. The first branch of the Anns/Cooper test considers if the harm that occurred was the reasonably foreseeable consequence of the defendant Law School’s act. If so, a prima facie duty will arise and the test moves on to the second branch of the test, which allows the defendant to raise any countervailing policy considerations that might negate the duty of care.

A. Is it reasonably foreseeable that a university student will be harmed by online harassment due
to inaction of the university?

The court will seek to discover if it was reasonably foreseeable that the alleged carelessness of the university would cause i) a risk of injury ii) to the plaintiff.

        a) Foreseeable Risk of Injury

        Specifically, the court will ask the plaintiff to prove that Law School’s conduct or failure to take action to stop the threatening emails created a foreseeable risk of injury to Law Student. Although this risk is not limited to the actual injuries suffered, in situations of serious psychological injury, the Supreme Court of Canada in Mustapha v Culligan ruled that the plaintiff must establish the foreseeability that “a mental injury would occur in a person of ordinary fortitude”.   

        When applied to the facts, it is doubtful whether it was reasonably foreseeable to Law School that its inaction would cause a risk of serious psychological injury to a student receiving threatening emails. However, evidently it is foreseeable that some harm would arise from threatening emails given a) its prohibition in the Code of Conduct; and b) its inclusion as an offence in the Criminal Code. But alone, this foreseeability of harm to a student does not equal a foreseeable risk of injury caused by the conduct or inaction of the Law School. The outcome of this issue will depend upon how specific or broad the court frames it. However, even if it is generally decided that the Law School’s conduct created a foreseeable risk of injury, in view of the decisions on psychological injury in Mustapha and Vanek v Great Atlantic & Pacific Company of Canada Limited, it is somewhat probable that the court will dismiss the injuries suffered as too remote. This will be discussed in further detail under Remoteness of Damages.

        b) Foreseeable Plaintiff

        In this complementary component of foreseeability, the court will consider if the plaintiff is likely to get injured by the careless act or omission. It is likely that it will be easily established that Future Law belongs to a class of persons foreseeably at risk due to the fact that the Law School administration initially sent an e-mail to warn all students.

B) Is there a relationship of sufficient proximity between Law School and Future Lawyer?

         Proximity describes a “close and direct” relationship where one party will be reasonably contemplated to be affected by the other party’s acts or omissions.  Proximity can be determined by reference to existing statutory or contractual obligations, in particular for public bodies such as a university.

        The notable Young v Bella and Ciano v York University recognize a contractual relationship between a university and its students upon an educational basis. It is highly likely that regulatory documents including but not limited to the university Code of Conduct will be interpreted as a strong indicator of a sufficiently proximate relationship, especially if it explicitly governs the relations between Law School and its students, although this fact must be confirmed by closer examination. This possibility is expanded in Pacheco, which maintained that the Senate Constitution and the Student Code of Conduct revealed that “the University intended to have the right to exercise control over the conduct of its students.” 

        A relationship of supervision might be precluded within the same document itself, as in Pacheco which identifies Dalhousie University’s Code that the university “has no

general responsibility for the moral and social behaviour of its students.” The decision in Powlett bolsters this claim:

Neither can I find ground for accepting the plaintiffs' contention of a contract, express or implied, to supervise and care for the mental and physical welfare of the infant plaintiff…having regard to the purposes for which universities generally have been established, the comparative freedom of thought and action which it is common knowledge must of necessity be accorded students in their university life …[I]t cannot, I think, reasonably be said that either party had in mind under the circumstances the creation of any such legal obligation.”

It is uncertain whether this will be capable of negating a finding of proximity due to the existing educational and administrative relationship that exists between Law School and Future Lawyer which will in all probability establish sufficient proximity. If both foreseeability and proximity are present, a prima facie duty of care will arise.

C) Are there policy reasons that would negate the finding of a prima facie duty of care?

        Policy considerations can potentially negate a prima facie duty of care but since the courts have typically given less weight to them, they will not be considered in great detail here. One consideration that might limit the scope of the duty is the difficulty associated with preventing Internet-based harassment over which the university has no control, especially in cases of unknown perpetrators. Such a broad scope of harm only tenuously linked to the university may invite unlimited liability. Secondly, it may be an inappropriate forum for dealing with serious concerns – while universities have some control over their students and employees, crimes occurring outside a university’s jurisdiction may be best dealt with by the police.

II. Standard of Care…

III. Causation in Fact…

IV. Causation in Law/Remoteness…

V. Damages…

VI. Defences…

CONCLUSION

        The first element for a successful claim of negligence is the existence of a duty of care. There is a modest to moderately high chance that the court will find a duty of care owed by a university to its students to take affirmative steps to halt online harassment. The strongest probability of recognizing a duty of care relies upon the recognition of Pacheco as an analogous duty. The relevance of other caselaw is substantially limited by the important distinction between a duty of nonfeasance and of misfeasance since common law is more cautious about imposing an obligation for positive acts.

        It is necessary to clarify if Law School has identified the perpetrator or is able to trace him/her due to the importance of the relationship between Law School and the source of harm. Another imperative step is to examine the Code of Conduct and other regulatory documents to resolve whether it imposes a general obligation to protect or includes an explicit exclusion of a relationship of supervision and control.  Finally, it is recommended that the content of the e-mails be inspected to ascertain if the harassment would constitute discrimination, in order to evaluate the weight of relevance cases concerning discriminatory harassment.

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