Legal Memo category

You have asked me to investigate whether you, Law School, will be found negligent for the psychological injuries suffered by your student culminating in that student dropping out, which originally ensued from harassing e-mails. In order for a cause of action in negligence to succeed, a duty of care must be proven by the plaintiff…. To determine whether there is a duty of care between a university and its students, we must ascertain whether it falls within an existing or analogous category.

If it does not, a novel duty of care can be established by applying the full Anns/Cooper test. After briefly answering those questions, I will review the relevant facts, issues and subsidiary issues, and move onto the analysis of those issues. The memo ends with a brief conclusion. BRIEF ANSWER Based on existing caselaw, there is an unfavourable chance that the relationship between a university and its students will fall within an analogous category. There is moderate probability that a novel duty of care will be established for a university towards its students.

FACTS In October, Law School sent an e-mail to its students to warn them about threatening e-mails suspected to come from a student. The e-mail also stated that harassing e-mails violated the Law School Code of Conduct and could result in disciplinary sanctions. Law School took no further action. One student, Future Lawyer, was a consistent recipient of these threatening emails. The receiving of e-mails coincided with sessions of History of the Common Law, but the sender was never identified by Future Lawyer.

She reported the e-mails to the administration but it failed to take action. When the e-mails intensified, Future Lawyer was unable to attend first that class and then the rest of her classes because of serious psychological injuries that were directly caused by the harassing e-mails. She received care from a physician but was unable to complete the semester and dropped out of Law School. Future Lawyer has launched a cause of action in negligence against Law School. ISSUES I.

Does a university owe a duty of care to its students to take affirmative steps to halt online harassment from an unknown perpetrator? 1) Is the relationship between a university faculty of law and its student recognized as an existing category? 2) Is this relationship likely to be found to be analogous to an existing category? 3) Is the relationship likely to be recognized as a special category of duty? 4) Is this relationship likely to meet the Anns/Cooper test for finding a novel duty of care? … DISCUSSION I.

Duty of Care In order for this cause of action in negligence to succeed against Law School, the first requirement is to determine whether a university owes a duty of care to its students to take affirmative steps to halt online harassment from an unknown perpetrator. The legal test for determining a duty of care is known as the Anns/Cooper test and requires that the harm is the reasonably foreseeable consequence of the breach, plus a sufficient relationship of proximity between the plaintiff and the defendant.

However, to make use of earlier cases that have developed relationships giving rise to a duty of care, if the proposed duty of falls into or is analogous to a previously established category of relationships, a prima facie duty of care will arise and the full Anns/Cooper test for a novel duty of care is unnecessary. 1 1) Is the relationship between a university faculty of law and its student recognized as an existing category? The duty of universities towards students recognized in common law is limited to positive acts, or misfeasance, and does not include a failure to act, which is nonfeasance.

The leading case on the duty of care owed by universities is Young v Bella, where a professor took positive actions to mistakenly report a student as a child sex abuser, consequently ruining that student's reputation and future career. The court ruled that professors owe a duty of care to their students, and extended that duty to the university on the basis of its contractual relationship with it students. 2 However, the duty of care in question is one of nonfeasance, where Law School is being sued for its failure to take action to stop the threatening emails and protect Future Lawyer from injury.

It is unlikely that the court will find this to fall within the established category because of the significance difference between positive and negative duties. It has been said "there is no distinction more deeply rooted in the common law … than that between misfeasance and non-feasance, between active misconduct working positive injury to others and passive [inaction] … "3 The duty to take action falls within the category of special duties of care and will be examined in further detail below.

Another key case identifying a duty of care owed to university students is Powlett v University of Alberta where the university Board of Governors was found to owe a positive duty of care to a first year student to put an end to or supervise initiation by second-year students which had caused the student's injuries. 4 Although this duty included both an "act or omission", it was founded on the student's status as a student in residence and the Board's duty to exercise care "so long as he [the student] was in residence in the buildings over which the Board had the power and duty of control.

"5 This condition is absent in the present case since Law School did not have physical control over the premises where the harassment occurred. 2) Is this relationship likely to be found to be analogous to an existing category? The use of categories for finding a duty of care is not restricted to identical fact situations but can be extended by analogy when conditions are similar to an existing duty.

6 One similar relationship giving rise to a duty of care is the one owed by school boards to secondary students to take action to prevent discriminatory harassment from other students: North Vancouver School District No 44 v Jubran. 7 However, that case can be distinguished from the present relationship on three key differences: 1) secondary students are typically minors while university students are not (however this fact must be clarified); 2) the nature of a secondary school environment is different from that of a university; and 3) Jubran concerned physical and verbal harassment but Future Lawyer endured online harassment.

The duty of secondary schools derives from the doctrine of loco parentis – that parental rights have been delegated to school authorities and impose obligations of supervision and control. Pacheco v Dalhousie University outlines how modern universities have explicitly excluded loco parentis in its Code of Conduct so it is unlikely that the duty owed by secondary schools will be held as analogous.