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. Canada3 wherein 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
Meetings with the
Meetings with the student and
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
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
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.
1 2014 AHRC 5 (CanLII).
2 At paragraph 79.
3 1987 CanLII 73 (SCC)
4 At para. 91
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