Recent Primary (K-12) and Post-Secondary Education Law Cases

Editor’s Note: In May 2024, Pendulum Law shared this case in an article entitled “Student Names to be Disclosed in Systemic Negligence Class Action.” What follows is the recent resolution of the case by way of a Court-approved settlement. This decision is significant as it relates to harms suffered by students between 2007 and 2022, involving the tort of systemic negligence—a claim where organizational policies, procedures or systemic failings (as opposed to a person’s actions) have caused widespread harm. Recognizing systemic negligence through legal action remains somewhat novel in Canada.

Facts

This case was a representative class action alleging improper use of holds, restraints, and involuntary isolation or seclusion at Jack Hulland Elementary School (the School) in Whitehorse, Yukon, between 2007 and 2022. The plaintiffs sought damages from the Yukon government for harms caused to them by its negligence. Initiated in 2022, the action was certified as a class action in 2023 and scheduled for trial in 2025.

The class was defined as all students and former students of the School, who were subject to holds and restraints and/or locked in a room and/or placed in seclusion between January 1, 2007 and June 30, 2022. Plaintiffs’ counsel was contacted by approximately 250 individuals out of a total 1,257 students who attended the School at the operative time.

A settlement agreement was reached in August 2025, subject to approval by the Executive Council of the Yukon government, which was received. The Yukon government (the Government) admitted that it failed to meet the required fiduciary duty and standard of care, in the supervision of School staff, in relation to the monitoring of (and compliance with) Department of Education policies about the use of holds, restraints and seclusion, and related reporting requirements.

The settlement agreement provided for a claims adjudication process paid for by the Government, allowing class members to claim compensation under one of three tiers, each to address a different level of harm: $35,000 for Tier 1; $300,000 for Tier 2; and $1,000,000 for Tier 3. A counselling fund for class members was established, up to $5,000 per claimant.

Cause of Action

The parties applied for court approval of the proposed settlement, and for approval of counsel fees and honoraria for representative plaintiffs.

Unlike regular civil actions, where a settlement between the parties does not normally require court approval, representative or class settlements often require court approval. The practice in the Yukon, where there is no class action legislation, has been to require court approval, to protect absent class members who would be bound by the settlement, and to address any objections.

One class member objected to the settlement agreement, on the basis of a failure of the Government to acknowledge the disproportionate impact of the impugned conduct on Indigenous children and a lack of information from the Government about changes made as a result of the litigation.

“Unlike regular civil actions, where a settlement between the parties does not normally require court approval, representative or class settlements often require court approval.”

Legal Issue

Did the proposed settlement agreement meet the legal test of fairness, adequacy and reasonableness, fulfilling the best interests of the class as a whole?

Decision

The proposed settlement was approved by the Court, together with proposed counsel fees and honoraria.

The Government would issue a public acknowledgement of the harms experienced by the class members.

Reasons

The Settlement Agreement

The Court approved the proposed, three-tiered claims adjudication process, for claims submitted within two years of the date of publication of the notice of the claims process. The Government was responsible for all costs of implementing and administering the claims process, as well as for the plaintiffs’ reasonable costs and disbursements incurred to the date of the settlement agreement.

The Government would also pay each representative plaintiff an honorarium of $10,000, given the particular psychological and emotional pressures experienced by those individuals who, for more than three years, addressed serious incidents affecting vulnerable children, including their own. The honoraria were intended to recognize the work done by each representative plaintiff to advance the litigation and instruct counsel on behalf of the class members, including attending mediation, and helping to achieve an acceptable result for the class.

The litigation was factually and legally complex, considering the time period, the number of individuals, incomplete or missing records, and duty and standard of care issues (and the roles and responsibilities of School administration, councils and the Government).

Considering the risks and benefits of settlement, including points of objection, against the risks and benefits of continued litigation, the Court was satisfied that the proposed settlement was adequate, fair, reasonable, and in the best interests of the class as a whole.

Special Counselling Fund

In addition to the claims adjudication process, the settlement agreement provided for a $250,000 special counselling fund to assist class members and families with the costs of counselling and related treatment, where such costs were not eligible for reimbursement from an insurance plan or other government program. Benefits were capped at $5,000 per claimant for services up to March 31, 2028, with an agreement between the parties to review the use, sufficiency and efficacy of the counselling fund before March 2027, and consider necessary changes.

Public Acknowledgement by the Yukon Government

The Yukon Government would issue a public statement acknowledging the harms suffered by class members, in a form attached to the settlement agreement.

GX v. Yukon (Government of), 2026 YKSC 5 (Supreme Court of Yukon).
Authored by Anna Zadunayski, LLB, MSc.

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Facts

A number of faculty members (the Petitioners) at Simon Fraser University (the University) in British Columbia voiced concerns regarding two resolutions passed in June 2024 by members of the Faculty Association of Simon Fraser University (the Faculty Association).

The Faculty Association was established in 1965 as a non-unionized professional association registered as a society under the Societies Act, S.B.C. 2015, c. 18 (the Act). In 2014, the Faculty Association was certified as a bargaining agent and trade union under the Labour Relations Code, R.S.B.C. 1996, c. 244. The Faculty Association is therefore both a society and a trade union. Faculty Association Membership is mandatory for anyone eligible for membership, which includes 1200 faculty, librarians and other academic staff.

The Faculty Association’s constitution sets out its purposes:

a) Assert the integrity of the academic profession;
b) Defend academic freedom in teaching and research;
c) Promote the welfare of all faculty members;
d) Foster high standards of excellence in teaching and scholarship; and
e) Act as the sole bargaining agent of all faculty members employed by the University and regulate relations between faculty members and the University through collective bargaining.

The Faculty Association had an unchallenged practice of debating political and social issues of interest to the membership, including:

a) A campaign to protest the arrest and torture of a professor in Uruguay for his political affiliations;
b) A campaign to end torture, abduction and oppression by agents of the Pinochet regime in Chile;
c) Opposition to the Trans Mountain Pipeline by Kinder Morgan; and
d) University divestment from fossil fuels in light of the climate crisis.

In April 2024, the Faculty Association Executive received two proposed motions from members, for debate at the Faculty Association annual general meeting (AGM), taking place on May 8, 2024. The Executive determined that the motions would be put to a referendum by electronic vote after the AGM, to allow the greatest number of members to participate.

The legal issue was whether the Resolutions being challenged by the Petitioners were inconsistent with the Faculty Association’s stated purposes.

The Gaza Resolution

The first motion (which, upon adoption became the Gaza Resolution) was in response to Isreal’s assault on Gaza resulting in more than 110,000 Palestinians dead or wounded, including over 230 teachers, 95 university professors, and three university presidents. The motion urged University administration to:

1) Condemn Isreal’s destruction of the education system in Gaza, calling for an immediate and permanent ceasefire and an end to ‘scholasticide’ in Palestine.

2) Suspend all institutional partnerships with Israeli academic institutions and divest from Israeli commercial interests pending termination of Israel’s policies of military occupation and apartheid;

3) Support Palestine’s universities and educational sector through inter-institutional cooperation; and

4) Commit to placements, fellowships, and scholarships for new students from Palestine, and hardship funds for students affected by the war on Gaza. 

The Divestment Resolution

The relevant Custodial Statement of Endowment Investments indicated that the University owned shares in corporations linked to war contracting and military arms and equipment production. The second motion called upon the University to divest from corporations engaged in military arms production, anchoring a commitment to the University’s Responsible Investment Policy (B10.16).

Both motions were vigorously debated at the AGM. Voting on the motions occurred in June 2024. The Gaza Resolution passed, with a total of 700 members casting ballots (333 in favour; 326 opposed; 41 abstained). The Divestment Resolution passed, also with 700 members casting ballots (423 in favour; 244 opposed; 33 abstained).

Shortly thereafter, the Faculty Association Executive submitted the Resolutions to the University, calling upon the University administration to act upon them.

Cause of Action

Faculty Association members (the Petitioners) brought a petition under s. 104 of the Act, asking the Court to order that the Faculty Association refrain from acting on the two June 2024 resolutions (the Resolutions), and declaring those resolutions void or invalid on the basis that they were inconsistent with the Faculty Association’s stated purposes.

The Petitioners argued that the taking of stances on divisive geopolitical issues and the advancement of political causes – the essence of the Resolutions – was inconsistent with the Faculty Association’s purposes. They further argued that members of the University community were free to advocate for political stances on their own, or through other groups and organizations, but not through the Faculty Association (with mandatory membership for faculty), whose actions and activities were constrained by its stated purpose. 

Section 104 allows for the restraint of action that is contrary to or inconsistent with a society’s purposes. The Petitioners bore the persuasive burden of establishing that the Resolutions were inconsistent with the purposes of the Faculty Association.

Legal Issue

The Court’s task was to assess the Faculty Association’s purposes, and the extent to which the Resolutions were consistent with those purposes, on an objective basis. 

The legal issue was whether the Resolutions being challenged by the Petitioners were inconsistent with the Faculty Association’s stated purposes. 

Decision

The petition was dismissed. The Court found that a purposive approach to the interpretation of the Faculty Association’s purposes was required, and that the Resolutions were not inconsistent with those broadly worded purposes pursuant to s. 104(1)(b) of the Societies Act. 

Reasons

Interpreting Section 104 of the Societies Act

Section 104 of the Act allows for the restraint of action that is contrary to or inconsistent with a society’s purposes. Here, the parties agreed that declaratory relief was available pursuant to that provision. The question for the Court was whether the Faculty Association had acted inconsistently with its purposes regarding the Resolutions.

In determining whether the Faculty Association acted consistently with its purposes under the Act, one consideration was respect for the reasonable expectations of the members. The relationship between a society and its members is generally a contractual one, or at least resembling a contractual one (Farrish v. Delta Hospice Society, 2020 BCCA 312 at para 46).

The Court agreed with the Faculty Association regarding a more restrained approach to interfering with the decisions of a private society. Here, the Court determined that its role was to consider whether the exercise of the Faculty Association’s discretion to forward the Resolutions to the University for action was consistent with the purpose of that discretion (Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7).

The Petitioners could not convince the Court that a strict approach to interpreting the Faculty Association’s purposes was warranted. In the Court’s view, a purposive, rather than restrictive, approach was called for.

Determining the Resolutions

The Court rejected the Petitioner’s arguments that the Faculty Association’s purposes were geographically bounded to the University itself or limited to labour relations and faculty welfare. Additionally, in the Court’s view, defending academic freedom – a broad societal concept – did not have a narrow definition or precise scope.

Overall, the Court was satisfied that the wording of the Gaza Resolution – the most divisive within the membership – sufficiently aligned with the Faculty Association’s purposes of asserting the integrity of the academic profession, the defence of academic freedom in teaching, and the fostering of high standards in teaching and scholarship. Further, the Court found that the Divestment Resolution was connected to, and not inconsistent with, the Faculty Association’s stated purpose to promote the welfare of its members and as the union of those members.

Mandatory Nature of Union Membership

The Court was not convinced that mandatory Faculty Association membership detracted from how members could seek to influence University policies. Nor was the Court convinced that the language of the constitution defining the Faculty Association’s purpose as promoting the welfare of all faculty members invoked a requirement for consensus regarding resolutions impacting collective welfare. Instead, the Court agreed that there was no requirement for the Faculty Association to influence working conditions or promote member welfare only through grievance procedures, and that the Faculty Association was free to do so in many ways.

Altman v. Faculty Association of Simon Fraser University, 2025 BCSC 1690 (British Columbia Supreme Court).

Authored by Anna Zadunayski LLB, MSc. 

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