Criminal Code

It is uncertain whether this will be capable of negating a finding of proximity due to the existing educational and administrative relationship that exists between Law School and Future Lawyer which will in all probability establish sufficient proximity. If both foreseeability and proximity are present, a prima facie duty of care will arise. C) Are there policy reasons that would negate the finding of a prima facie duty of care? Policy considerations can potentially negate a prima facie duty of care but since the courts have typically given less weight to them, they will not be considered in great detail here.

One consideration that might limit the scope of the duty is the difficulty associated with preventing Internet-based harassment over which the university has no control, especially in cases of unknown perpetrators. Such a broad scope of harm only tenuously linked to the university may invite unlimited liability. Secondly, it may be an inappropriate forum for dealing with serious concerns – while universities have some control over their students and employees, crimes occurring outside a university's jurisdiction may be best dealt with by the police. II. Standard of Care… III. Causation in Fact… IV. Causation in Law/Remoteness…

V. Damages… VI. Defences… CONCLUSION The first element for a successful claim of negligence is the existence of a duty of care. There is a modest to moderately high chance that the court will find a duty of care owed by a university to its students to take affirmative steps to halt online harassment. The strongest probability of recognizing a duty of care relies upon the recognition of Pacheco as an analogous duty. The relevance of other caselaw is substantially limited by the important distinction between a duty of nonfeasance and of misfeasance since common law is more cautious about imposing an obligation for positive acts.

It is necessary to clarify if Law School has identified the perpetrator or is able to trace him/her due to the importance of the relationship between Law School and the source of harm. Another imperative step is to examine the Code of Conduct and other regulatory documents to resolve whether it imposes a general obligation to protect or includes an explicit exclusion of a relationship of supervision and control. Finally, it is recommended that the content of the e-mails be inspected to ascertain if the harassment would constitute discrimination, in order to evaluate the weight of relevance cases concerning discriminatory harassment.

1 Childs v Desormeaux, 2006 SCC 18, [2006] 1 SCR 643 at para 15 (the entire Anns test need not be applied if there is an existing or analogous category of relationship). 2 Young v Bella, 2006 SCC 3 at paras 21, 31, [2006] 1 SCR 108 [Young]. 3 Francis H. Bohlen, "The Moral Duty to Aid Others as a Basis of Tort Liability" (1908) 56 U Pa L Rev 217 at 219. 4 Powlett v University of Alberta, [1934] 2 WWR 209 at para 129, [1934] AJ No. 14 [Powlett]. 5 Ibid at paras 117, 140. 6 Cooper v Hobart, 2001 SCC 79 at para 31, [2001] 3 SCR 537. 7 Vancouver School District No 44 v Jubran, 2005 BCCA 201 at para 87, 253 D.L. R. (4th) 294.

8 Pacheco v Dalhousie University 2005 NSSC 222 at para 23, 238 NSR (2d) 1 [Pacheco]; Acadia University v Sutcliffe, 30 NSR (2d) 423, 95 DLR (3d) 95, (loco parentis is further rejected to have "no validity today" for modern universities at para 12). 9 Ibid at para 24 10 Students for Life v University of British Columbia, 2003 BCSC 864, [2003] BCJ No 1326 [Students] (rejects vicarious liability of a university for the torts committed by its students because the necessary relationship of agency of the students was missing at para 120);

Ogden v Simon Fraser University [1988] BCJ No 2288, (no clear ruling about whether a fiduciary duty is owed by a university although there is some indication that courts are reluctant to recognize such a duty at para 64); Students (finds no fiduciary duty on the part of a university student union at para 129). 11 Robichaud v Canada (Treasury Board), [1987] 2 SCR 84 at para 17, [1987] SCJ No 47. 12 University of Western Ontario, [2007] OLRD No 5152 at para 52. 13 Uzoaba v Canada (Correctional Services), [1994] CHRD No 7 at para 42, [1994] DCDP No 7.14 Nixon v Greensides, (1992) 12 LW 1234-008. 15 Hinds v Canada (Employment and Immigration Commission).

 10 CHRR 5683, [1988] CHRD No 13. 16 Guzman v T, [1997] BCCHRD No. 1 at para 101 [Guzman]. 17 Ibid at para 123. 18 Human Rights Act, SBC 1984, c 22 s 8. 19 Canadian Human Rights Act, SC 1976, c. 33 s13. 1(1)(c) . 20 Human Rights Act at note 17 (s 8(1) "No person shall (b) discriminate against a person with respect to employment or any term or condition of employment, because of the … sex of that person … "); Ibid (13.1(1)(c)

"It is a discriminatory practice, (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination", 48 (5) "Subject to subsection (6), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization. ") 21 Mustapha v Culligan of Canada, 2009 SCC 27 at para 15, [2008] 2 SCR 114 [Mustapha].

Criminal Code, RSC 1985, s 264(1), (2)(b). 23 Mustapha, supra note 20 at para 18; Vanek v Great Atlantic & Pacific of Canada, 48 OR (3d) 228 at paras 59-61, 180 DLR (4th) 748. 24 M'Alister (or Donoghue) v Stevenson, [1932] AC 562 (HL). 25 Young, supra note 2 at para 31; Ciano v York University, [2000] OJ No 183 at para 15, [2000] OTC 37 ("The relationship between student and university is contractual. Upon enrolment into classes, registration and tuition payment, the student enters into a contract with the university to provide higher education, access to resources and class instruction" at para 15).