By Krina Merchant, Student-at-Law
Bullying has been a heavy and ongoing topic of discussion for a number of professions that focus on children. A recent case from the Ontario Court of Appeal indicates that the legal profession may now have a seat at that table.
Where physical or psychological injury results from bullying, a negligence claim may be brewing, and it may not be covered by your homeowners’ insurance policy.
In the recent case of Unifund Assurance Company v. D.E., 2015 ONCA 423, bullying was the main subject of the allegation. There was no dispute by the courts that bullying fell within the realms of parental liability for negligence when a parent fails to prevent the harm from the bullying. However, the Court of Appeal clarified that an insurer did not have a duty to defend parents under their homeowners’ insurance policy. Although the policy in this case indicated coverage for unintentional torts, the decision hung on the exclusion clause that the policy does not apply where the tort occurred from a failure to take steps to prevent the harm. Not every policy will include this clause, but those that do cannot expect coverage, and those that remain silent shall be treated as if the policy was in place.
PARENTAL TORT LIABILITY
It is important to be aware that there is no vicarious liability stemming from the child-parent relationship1 , so your child’s every action will not fall on you; but there is the possibility of negligence where a parent fails to supervise and control the activities of their children and as a result did not use reasonable care to prevent foreseeable damage to others. The extent of parental duty of care is an objective standard with subjective elements where one must consider what a parent is expected to do according to the ordinary careful parent, but must also consider what a reasonable parent put in this specific circumstance would be expected to do2. It is on this point that the parents may be swung into liability due to negligence.
The 1978 decision in Floyd et al. v Bowers et al., 21 O.R. (2d) 204 was important in determining a parent’s liability for damages caused by their child. The court in this case held that the failure to control or prevent the harm constituted negligence on the part of the parent. This was echoed in W.E. v. F.E. et al., 2008 YKSC 40 referencing Segstro v. McLean  B.C.J. No. 2477 where it was indicated that parents can be liable for their child’s behavior because they are in a position to govern their child’s behavior and must use reasonable care to prevent foreseeable harm to others through proper supervision.
Ontario has not directly addressed parental liability in respect to cyber bullying. Nova Scotia, however, has addressed it through legislation that creates a tort of cyber bullying3. This includes the liability of parents of minors engaging in cyberbullying for negligence that may only be avoided if they can satisfy the court that they exercised reasonable supervision of the child at the time of the cyber bullying4 . Given the recent awareness surrounding cyberbullying and the exponential growth of social media, it is only a matter of time before legislation is enacted in Ontario as well. It may appear like parents are being requested to monitor their children 24/7, but it is also unlikely that the law would allow a gap of liability to exist in the infinite cyber universe.
What can be understood here are two things:
1. As a parent, there is a possibility that harmful actions by your child – online and offline –may fall as negligent on you for failing to prevent the harm from taking place;
2. You may have no coverage through your insurer for such a claim if the policy stipulates the exclusion or is silent on the matter
In the 21st century the scope for parenting has grown larger than the generation before it, and with this recent decision, the scope of liability has grown with it.
1Newton v. Newton,  B.C.J. No. 1220; 2 B.C.L.R. (4th) 375 (S.C)
2Lelarge v. Blakney,  N.B.J. No 267; 92 D.L.R. (3d) 440 (C.A.)
3Cyber-Safety Act, SNS 2013, c 2.