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Law Matters - Jeff Zilkowsky

Bullies, schools and lawsuits

Winter vacation is over and children are back in school. For many children, the return to school is less than enjoyable as bullying is common and efforts to prevent it have seemingly fallen short of success.

Bullying can take many forms; it can be physical, analogous to criminal assault, or it can be verbal or mental. Over 30% of students have been bullied and more than 70% of gay, bisexual, lesbian, or transsexual students have felt unsafe while at school. Victims of bullying are more likely to suffer headache/stomach problems, have lower grades, have a poor attitude towards school, and have greater absenteeism. Also, victims of bullying are 2-9 times more likely to commit suicide, the 3rd leading cause of death among youths. Suicide from bullying has been termed, “bullycide” and at least half of youth suicides are related to bullying. Some victims of bullying also develop learned helplessness, post-traumatic stress disorder, depression, fatigue, eating disorders, and insomnia.

In a 2001/2002 World Health Organization survey, Canada ranked 26th and 27th out of 35 countries on measures of bullying and victimization, respectively. In a 1993/1994 study, Canada’s rank was relatively higher, suggesting that other countries have improved and addressed bullying more effectively than Canada.

Obviously, bullying is a problem in Canadian schools.

So, how do we fix it? Well, changes to legislation, to school/teacher procedures, and to community/parental resources may be effective. But, aside for those strategies, consider that litigation/lawsuits (i.e. holding school authorities, like the school or school board, civilly accountable for negligence) would also be effective. Please, hear me out…

At present, some parents spend years going through the prescribed channels, meeting with principals, school board officials, and police, hoping to protect their children, but are unsuccessful. For a few of those parents, taking the matter to court is the next step – a courageous move, knowing that they will be subject to criticism by those who do not understand their plight to protect their children.

Put simply, the legal argument is as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable and foreseeable harm, then the school authorities should be held accountable. Seems reasonable, right?

It is not suggested that school authorities be found liable for an isolated incident in which a student assaults another with no warning signs – such an occurrence would be unforeseeable and unpreventable. But, consider a child being repeatedly assaulted and/or harassed, often directly in front of a school’s employee, with the bully never being suspended or expelled. Also, consider that, as a result of the bullying, the victimized child suffers physical and/or mental harm. Such occurrences are preventable and, in such circumstances, the school authorities should be held accountable.

Now, what is a victimized child entitled to? Just as it is with other litigation, plaintiffs are only entitled to fair compensation; they are only entitled to recover their losses (contrary to some public sentiment). Compensation for a victimized child could include the cost of necessary counselling, medication (for mental, stomach, or headache issues), tutoring, or transportation to a different school. The child could also receive compensation for having to endure humiliation and the feeling of helplessness. Also, depending on the level of harm and the interruption to their education/schooling (resulting in lost years), the victimized child may also receive compensation for loss of future income.

Okay, so litigation will compensate victimized children for their losses. But, how will it prevent bullying? Well, the answer is this: self-interest. Litigation forces school authorities to be fiscally motivated to better prevent and detect bullying; the school authorities would view the bully’s behaviour as an unnecessary and preventable cost. As well, taxpayers who see the connection between their tax dollars and litigation will exert external pressure on school authorities to prevent bullying.

As a write this, I can already hear skepticism that litigation will prevent bullying. However, it should be remembered that the law shapes behaviour. For example, consider whether all department stores or gas stations would continue to spend large dollars to keep their parking lots free from ice and snow if there was no risk of litigation (from resulting injury). Also, consider whether some people would choose not to commit a criminal act, like impaired driving, if there was no risk of being held criminally liable. Like it or not, the law regularly influences behaviour (and benefits the common good).

Also consider this: you attend a doctor, a lawyer, or a department store and you suffer loss/harm because of their negligence/wrongdoing. You would expect them to be held accountable and compensate you for your losses, right? Why should it be any different for children when attending school?

In conclusion, bullying is not acceptable and it is not a rite of passage. In our schools, some children are committing criminal acts. If it takes litigation to stop this behaviour, then so be it.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Jeff Zilkowsky is a lawyer working in the Lower Mainland, practicing primarily in personal injury, civil litigation, debtor/creditor, criminal, and family law.   In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to e-mail Jeff at [email protected].  

Visit Jeff’s website at: www.JeffZilkowsky.com




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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