Student Drivers and the Fiduciary Duty of School Boards

Abstract

Following E.D.G. v. Hammer, Canadian law has held that school boards, although they have a fiduciary duty to their students, do not guarantee the safety of their students from the acts of their employees. The scope of that fiduciary duty is narrow, restricted to a board acting with disloyalty, in bad faith, or in a conflict of interest to its students, which causes them injury. This paper takes the position that the scope of that duty should include cases where a school board’s policy allows students to use their own cars to drive fellow students to school-sponsored functions.

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Notes

  1. 1.

    Frame v. Smith, (1987) 2 SCR 99 at p. 102.

  2. 2.

    Guerin v. The Queen (1984) 2 SCR 335.

  3. 3.

    Norberg v. Wynrib (1992) 2 SCR at 230.

  4. 4.

    A summary of such situations and the case law surrounding them has been provided by Hunter and Dolmage (2013).

  5. 5.

    R. v. Svein: Svein was convicted on February 24, 1995, of rape and indecent assault. E.D.G. v. Hammer (1998) 53 BCLR (3d) 89; http://www.canlii.org/en/bc/bcsc/doc/1998/1998canlii15064/1998canlii15064.html?autocompleteStr=E.D.G.%20%20v.%20Hammer%20&autocompletePos=1.

  6. 6.

    E.D.G. v. Hammer (2001) 86 BCLR (3d) 191, http://www.canlii.org/en/bc/bcca/doc/2001/2001bcca226/2001bcca226.html?autocompleteStr=hammer&autocompletePos=1.

  7. 7.

    The school board’s cross appeal dealt with an issue of the apportionment of damages between the various abusers who abused the plaintiff. The cross appeal was dismissed by the Court.

  8. 8.

    School Act, RSBC 1979, c. 357.

  9. 9.

    The idea of liability for actions committed by another stems from Cassidy v. Minister of Health, (1951) 2 KB 343 (CA) at p. 363: “[W]here a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services”.

  10. 10.

    Supra note 1 at para. 20.

  11. 11.

    Id. at para. 40.

  12. 12.

    Id. at para. 22.

  13. 13.

    K.L.B. v. British Columbia, (2003) 2 SCR 403 dealt with two children who had been abused in two successive foster homes. The children claimed that the Superintendent of Child Welfare had a non-delegable duty to ensure that no harm came to children from abusive foster parents. The Court found that there was no breach of fiduciary duty: “There is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty” (para. 50).

  14. 14.

    Supra note 11 at para. 23.

  15. 15.

    Id. at para 24.

  16. 16.

    Id. at para. 25.

  17. 17.

    Id. at para. 27.

  18. 18.

    In at least one jurisdiction, Alberta, the Alberta Teachers’ Association suggests that students driving other students to school-related activities is not appropriate: “The practice of students driving other students should be discouraged. A good policy to follow is never to permit students to drive other students unless the school has the written consent of the student driver, the student passengers and their parents.” The Alberta Teachers’ Association, (n.d.) “Chapter 3: Teacher Liability: Transporting Students,” in Teachers’ Rights, Responsibilities, and Legal Liabilities, http://www.teachers.ab.ca/Publications/Other%20Publications/Teachers%20%20Rights%20Responsibilities%20and%20Legal%20Liabilities/Pages/Chapter%203.aspx#transporting-students.

  19. 19.

    Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). In this case, a student was injured by an unlicensed student driving a car in the school parking lot after school hours. While the court held that teachers have a duty to guard against foreseeable risks in the activities of students, the court found the teacher in that case could not have foreseen that the student would drive the car unlawfully. The court noted there was no evidence to suggest the teacher knew or ought to have known the student was untrustworthy; the student displayed no pattern of misbehavior either by bad driving or unlicensed driving to suggest supervision needed. The court held that the teacher was entitled to assume a 15 year-old driver had sufficient age, character, and intelligence to drive.

  20. 20.

    Supra note 1 at para. 24 citing Justice Ryan, in A. (C.) v. C. (J.W.), (1998), 60 BCLR (3d) 92 (CA) at para. 154.

  21. 21.

    Id. at para. 7.

  22. 22.

    Some insurers have stated such policies should not be allowed. For example, the Alberta School Boards Insurance Exchange’s 2012 Off-Site Policy and Procedures Manual states: “ASBIE does not sanction the practice of students driving other students to and from off-site activities” (Sect. 7.10.5), http://prrdweb.com/documents/general/Small%20ASBIE%20-%20Off%20Site%20Policy%20%20Procedures%20Manual.pdf.

  23. 23.

    Supra note 1 at para. 23.

  24. 24.

    Canson Enterprises deals with a solicitor breaching his fiduciary duty in not revealing to both of his clients that a third party was making a secret profit in a party’s land purchase. Canson Enterprises Ltd. v. Boughton & Co., (1991) 3 SCR 534.

  25. 25.

    Id. at 545, 551.

  26. 26.

    Id. at 552.

  27. 27.

    Id. at 552.

  28. 28.

    Id. at 556.

  29. 29.

    Id. at 553, 554.

  30. 30.

    Id. at 553, 554 (emphasis added).

  31. 31.

    The facts of Canson Enterprises, dealing with a commercial transaction and deceit by a solicitor constituting a breach of fiduciary duty, are starkly different from an analysis dealing with a fiduciary relationship between an underage adolescent student and a statutorily created fiduciary. It is reasonable to suggest that the actions or inactions of a student plaintiff might be viewed by the Court differently than the plaintiff in Canson Enterprises.

  32. 32.

    Moreover, as the district policy did not require that a teacher should examine each student driver car to ensure it had working seatbelts before its use in driving students to a school function, that failure to act in conjunction with the district student driver policy may be sufficient to exculpate the plaintiff from any responsibility—at least any “egregious” responsibility for his injury.

  33. 33.

    Id. at 556.

References

  1. Dickinson, G. M. (2004). Breach of non-delegable duty and fiduciary duty put to rest as grounds for board liability in janitor assault of pupil. Education & Law Journal, 13(3), 433–436.

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  2. Hunter, D., & Dolmage, R. (2013). Fiduciary duty and school board takeovers in Canada since 1981: Fumbling toward a framework? Education Law Journal, 22, 153–187.

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Correspondence to James Kent Donlevy.

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E.D.G. v. Hammer, (2003) 2 SCR 459. Hammer followed from a line of cases which developed the law: M. B. v. British Columbia, (2003) 2 SCR 477; K. L. B. v. British Columbia, (2003) 2 SCR 403. See also Dickinson (2004).

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Donlevy, J.K., Gereluk, D., Brandon, J. et al. Student Drivers and the Fiduciary Duty of School Boards. Interchange 48, 195–203 (2017). https://doi.org/10.1007/s10780-016-9297-3

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Keywords

  • Supra Note
  • School Board
  • Hypothetical Case
  • Fiduciary Duty
  • Injured Student