Saturday, 1 October 2011

The Legal stuff for you lawyer types

 The Education Act  views children as "vulnerable individuals".  The act determines that when dealing with children the "Duty of Care" is very high. 

Regulation 521/01 of the Education Act:   If you are still reading this far, you will find this Regulation interesting since it seems to be the fly in the ointment.   This Regulation caused many boards to change their policy yet some interpreted this Regulation differently and did not apply it to volunteers. 

Child and Family Services Act Professional misconduct also includes "Failing to comply with the member’s duty under the Child and Family Services Act" (CFSA). This law makes it an offence to abuse a child, or to permit a child to suffer abuse by failing to care and provide for or supervise and protect them adequately. For the purposes of the CFSA, "abuse" is defined as "a state or condition of being physically harmed, sexually molested or sexually exploited."

 Duty of Care:   the obligation, created by law, to take care not to harm others by act or omission. 
The Standard of Care:   The degree of care which a reasonable person would exercise in similar circumstances so as to avoid exposing others to an unreasonable risk or harm. In cases where the person to whom the duty is owed is a child in the school board’s care, the standard of care owed to the child is that of the reasonably prudent parent.
A standard of care is essentially the standard of behaviour against which the actions or omissions of the defendant(s) in a negligence claim will be judged. Canadian courts have held that the standard of care owed to a pupil by a school board and its principals and teachers is that of a “careful or prudent parent in the circumstances”.  (Myers v. Peel)  This standard has long been applied to the actions of educators in relation to their students.

Criminal Negligence : Is said to occur when an individual is aware that what he/she is doing is not allowed, or being done incorrectly. 
 *   Includes “wanton or reckless disregard” for life or safety.
 * The individual can be liable both criminally and civilly
Due Diligence means you are NOT liable where you exercised a degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances”                                                               - McCarthy, Tetrault - Toronto, Ontario   Due Diligence is not an attitude, but a set of measurable, observable actions
    • As a minimum, a reasonably prudent person would know current “industry standards” for an activity and communicate and apply them
    •  “What do other similar organizations do in this circumstance?”
    • “Did you do everything reasonable in the circumstances to prevent the accident from occurring?”
    • “Why not?
Foreseeable & Preventable
             *  The law in all cases demands that the degree of care is sufficient for the risk created – the higher the risk, the higher the degree of care required.
               * All reasonably foreseeable risks must be anticipated and steps taken to control the risk

Implementing Due Diligence
                --Ignorance of the law is no defense
                -- Know the Acts and Regulations
                -- Communicate responsibilities to others
                -- Know the industry standards or best practices
                -- Ensure your standards reflect those standards
    • The obligation to take “all reasonable care” to ensure compliance requires that proactive steps are taken to ensure compliance. Due diligence requires you to:
    • develop specific procedures & practices, communicate procedures /practices 
      • train the building occupants in the procedures/practices, monitor adherence, enforce compliance 
      • Before an Accident Occurs!

    • please note that "The safe schools Act"  amazingly says nothing of those who care for  the vulnerable.  

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