Tuesday, May 27, 2014

BC Teachers: Liability & the Lockout

The war of words between the BCTF and the BC Government, heated up this week as the government denied that their lockout prevented teachers from organizing and participating in extra-curricular events and blamed the BCTF for warning its members of potential liability.

The Victoria Times Colonist reported this morning:

Education Minister Peter Fassbender said he was against any disruption of extracurricular and volunteer opportunities.
“I think that’s a shame,” he said. “As I said at the beginning, I am concerned because this is now affecting students and their parents and the communities. Teachers have a choice to participate in extracurricular activities as they have previously.”
While the union said teachers should wait until there is confirmation from WorkSafe B.C. that they are on solid ground with extracurricular activity during the partial lockout, Fassbender said WorkSafe B.C. coverage for teachers will not be compromised.
“Any teacher that is at any activity that is sanctioned by a school district is absolutely covered by WorkSafe. There is no question of that."
( - See more at: http://www.timescolonist.com/news/local/union-tells-teachers-to-stop-volunteering-cites-liability-concerns-1.1076148#sthash.BWAx6nAh.dpuf)

What are the facts we know?

The first claim, that teachers are covered by WCB (WorksafeBC), is almost certainly false. WCB has been issuing orders denying WCB coverage to teachers involved in extra-curricular activities for some time now. See, for example, this WCAT (the appeal body of the WCB) decision.

In it, the adjudicator determines that coverage is not provided because the activity was not "work" for the following reasons:

"...the worker was injured outside normal working hours; he was not 
involved in an activity that was part of his job; he was not instructed or otherwise 
directed by the employer to carry out the activity; the activity was not supervised by a 
representative of the employer having supervisory authority; and fitness was not a job 
requirement. Those factors are more critical to an assessment of whether the soccer 
game was part of the worker’s employment, and whether the injury arose out and in the 
course of employment. "

In the current circumstances, it is likely that most extra-curricular activities teachers have planned would take place in similar conditions. They are not activities in which the teacher is "directed" by the employer because they are voluntary.

So if a teacher isn't covered by WCB, then what? In the normal course of events, the teacher would probably be covered by the School District liability insurance. All BC School Districts are "self insured" with the government insurance program, called the School Protection Program. This provides insurance similar to your home insurance - for injuries, for example. It also provides legal support when a School District, or their employees in the course of their work, are sued.

The SPP has an "Administrator's Manual" on its web site. The Manual specifically advises that:

This handbook should not be used as more than a general introduction to 
coverage available under SPP. It is not legal advice and does not modify 
actual coverage wordings. Not all activities or losses are covered. 

Nevertheless, even if we ignore this caveat (as one might in the normal course of things), there is an additional concern. The Manual indicates that coverage is not provided for "illegal acts".

Why is this a problem? Well, the letter from Marchbank very clearly directs teachers that they are locked out for certain specified hours. Specifically, teachers are: "directed not to attend their workplace earlier than 45 minutes before the commencement of their instructional time or later than 45 minutes after the end of their instructional time". This means that a teacher who is on School District property during these times may be trespassing.

The application of the tort of trespass has been successfully used to prevent workers from picketing on employer property. Whether it can or would be used by an insurance agent in respect of a damages claim is any one's guess.

Here's what I do know. WCB makes it's own decisions. It has issued no information. Neither Fassbender, nor a Superintendent, nor BCPSEA can "assure" teachers they are covered under WCB and the evidence based on previous decisions suggest they are not.

No one knows the possible outcome of a damages claim involving the SPP under a partial lockout. Likely not even an SPP official could provide an answer - it would end up at the courts.

The BCTF is obligated to provide advice that respects the safety and security of its members. Their advice to warn members of potential liability risks seems perfectly reasonable to me. Given that a single injury claim can be financially debilitating for an individual, I wouldn't take the risk myself.


  1. The case cited here is my WCB case which I am still appealing. The frustrating part is that my colleague was injured the following week and he was covered. His injury involved surgery, therapy and TOC time (at least $5000 total) and my injury required $355 of therapy with no missed school. So when the Minister "assures" us that we are covered do NOT believe him.

  2. Good luck with your appeal. Yes - given the huge variety of activities and circumstances it is very misleading for Fassbender to make a blanket statement.

  3. excellent and clear to the point tara....love your writings....keep up the great work in the communication end of things!!

  4. Should teachers on school Health & safety committees then be getting their committees to warning staff then to not participate in Extra curricular because of possible lack of coverage?

  5. Yes. And BCTF has sent this advice to locals already.