In the recent case of Malko-Monterrosa v. Conseil Scolaire Centre-Nord1, the Alberta Human Rights Tribunal recently heard a complaint filed by Ms. Malko-Monterossa, a teacher who alleged that the Conseil Scolaire Centre-Nord discriminated against her on the grounds of race, colour, gender and ancestry when it failed to protect her from a prolonged campaign of harassment by a student of the school board.

Stating the test for workplace harassment as “unwelcome conduct related to prohibited grounds of discrimination that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment2” the Tribunal found that the student’s actions in this case clearly met the test.

The student sent notes, emails and used various forms of social media over many months to convey messages populated with innuendo and insults based on race, colour, gender and ancestry. In addition, the student made unfounded accusations of having sexual relations with the teacher, accessed the school email system to send messages in which she attempted to disguise her identity, made express and veiled threats, and at times enlisted the assistance of other students in her actions. The student’s actions increased in frequency and severity over time.

Having found that harassment had been established, the Tribunal then considered whether the school board could be held liable for the discriminatory conduct of one of its students. The Tribunal referenced a number of jurisdictions in Canada where employers have been found to have an obligation to provide employment free of discrimination, and that such an obligation extends to the acts of third parties who are not employees.

The Tribunal also cited the Supreme Court of Canada’s ruling in Robichaud v. Canadawherein the court drew a parallel between vicarious liability in tort and harassment, stating that “responsibility for an organization is placed on those who control it and are in a position to take effective remedial action to remove undesirable conditions.”

The Tribunal concluded that the Conseil Scolaire Centre-Nord had control over Ms. Malko-Monterrosa’s workplace and authority over the student conducting the harassment. In evaluating whether the Conseil should be held responsible, the Tribunal considered its attempts to remedy the situation, which included:

  • Meetings with the student;
  • Meetings with the student and her parents;
  • Offers to provide counselling and pay for a psychologist’s fees;
  • Banning the student from the vicinity of Ms. Malko-Monterossa’s classroom;
  • Close supervision of the student by school administrators;
  • Blocking of emails on the school server;
  • Suspensions;
  • Expulsion from school (but to a neighbouring school on the same bus route, and where the Ms. Malko-Monterossa’s mother worked)

The Tribunal assessed these measures and concluded that the Conseil reacted to individual incidents in a piecemeal fashion “without appreciating the growing accumulation of events” and that its response “lacked a coordinated, centralized approach"4. Notwithstanding the Conseil’s competing duty to accommodate the needs of the student, who had mental health issues, and its employee, the Tribunal ruled that the school board was liable for the student’s discriminatory harassment of Ms. Malko-Monterossa.

This decision is noteworthy for Ontario school boards in that it clearly establishes that school boards can be held responsible for the discriminatory actions of third parties, including its students. Moreover, in attempting to prevent such discrimination, a Board must have a coordinated, centralized approach and go beyond responding to individual acts as they occur. It is difficult to discern from the ruling what kind of approach would suffice, but we may conclude that the threshold lies somewhere beyond “reasonable efforts” and much closer to “successful efforts”.

For more information regarding students harassing teachers via social media, please tune into Morning Recess, on Thursday, February 19, 2015 at 10:00am, a 45-minute webinar that will more closely at the issues involving the harassment of teachers by students.