Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
Schools are not just responsible for addressing the bullying but they are also responsible for preventing the bullying from continuing.
Remember to document everything. Take pictures, and attend doctors appointments and private counselling appointments. Any government (free) counsellor will not be able to testify at a hearing.
From the case:
[102] I find that the School Board is responsible for the discriminatory behaviour of the harassing students (see an analogous case: Ferguson v. Muench Works Ltd. (1997), 1997 CanLII 24826 (BC HRT), 33 C.H.R.R. D/87 (B.C.C.H.R.) at para. 42).
[109] The Court held that schools are:
…an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the board of inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it. (at para. 42)
[116] As a matter of legislation and case authority, there is a legitimate state interest in the education of the young, that students are especially vulnerable, that the School Board may make rules establishing a code of conduct for students attending those schools as part of its responsibility to manage those schools. Given this, and the quasi-constitutional nature of the Code, I find that the School Board has the duty to provide students with an educational environment that does not expose them to discriminatory harassment.
[118] Having found that the School Board contravened s. 8 by failing to provide a learning environment free of discrimination, the burden then shifts to the Board to establish that the measures it took constitute a bona fide and reasonable justification. Once the harassment is made known to the school, the administration had an obligation to act on the specific complaints. Although the School Board argued that there was no evidence that indicated which steps it had taken were insufficient, it has the burden of showing that the steps it took were appropriate.
[138] Although the administration’s strategy of disciplining individual offenders was effective vis-a-vis those individual students, it was not effective in reducing the harassment Mr. Jubran was experiencing on a regular basis. While the harassing behaviour abated in grades 11 and 12, it did not stop. Although Mr. Shaw was of the view that the school’s strategy of using progressive discipline was effective because a majority of the students never “re-offended”, he agreed that new offenders were being identified, and students were calling Mr. Jubran names that had not been used before. However, it was his view that, because it was a different boy each time, a suspension for any one of them was inappropriate, since each incident was regarded as unique and specific. Mr. Shaw also agreed that, even though the strategy appeared not to be effective in stopping the harassment, the school did not change that strategy.
[160] Although Handsworth’s administration did turn their minds to Mr. Jubran’s situation, and discussed different approaches to dealing with it, the School Board did nothing to address the issue of homophobia or homophobic harassment with the students generally, nor did it implement a program designed to address that issue. Neither Mr. Rockwell nor Mr. Shaw were given any guidance or direction by the School Board on how to deal with the situation. I find that the administration had inadequate tools to work with, and insufficient training and education to deal with the harassment. The School Board did not seek assistance from those with particular expertise in the field of harassment, homophobic or otherwise, until Mr. Jubran filed his human rights complaint. By that time, Mr. Jubran was in his fourth year of high school at Handsworth, and the harassment he was experiencing was continuing.
[161] Despite the efforts of Handsworth’s administration in dealing with the harassment, when viewed as a totality, I conclude that the School Board has failed to discharge its burden of demonstrating that it accommodated Mr. Jubran to the point of undue hardship.
CIVIL LAW
ALSO……. please look at this document with lots of case law about duty of care and a school districts responsibility to bullying.
“It should also be noted that victims of bullying may have recourse under provincial human rights legislation where such bullying is based on a protected ground.[25] Where discrimination based on a protected ground underlies the bullying behaviour, there is the potential for provincial human rights legislation and negligence law to overlap. However, if the bullying in question is not based on a protected ground under provincial human rights legislation, a negligence claim may be the only recourse available to the bullied student or, in the case of suicide, to the student’s parents. Furthermore, potential liability in tort for injuries caused by school bullying can increase the pressure on schools and school boards to take further steps to curtail bullying.[26]“