Due to a recent decision of the Supreme Court of Canada, regulators may have to educate practitioners about their legal protections when making a mandatory report.

The Issue

Most practitioners have some duty to report any risk of harm to the public by their colleagues (and sometimes even by their clients). Often this duty is contained in statute. Sometimes it is a professional obligation (e.g., where the incompetence or dishonesty of a colleague is likely to harm others). At common law (i.e., under case law) practitioners generally have a duty to report a risk of serious physical harm that is discovered during the practice of the profession.

There is a legal protection, or immunity, for making such reports even if they turn out to be wrong. Despite this very significant protection, in its January 28, 2006 decision of Young v. Bella, 2006 SCC 3, the Supreme Court of Canada held Professor Bella and her employer liable for $839,400 of damages for making a report without foundation. The headlines about the case will raise concerns that making such reports is risky. However, the actual reasoning of the Supreme Court of Canada really states the contrary.

The Facts

Ms. Young was a student at Memorial University in Newfoundland. She wanted to be a social worker. She wrote a paper for Professor Bella about treatment of juvenile sex offenders. To illustrate her point that victims of sexual abuse often become abusers themselves she attached a first hand account of a woman who sexually abused a child while baby sitting. Ms. Young failed to footnote the source of the story. However, it was from a source cited in the bibliography. Despite the fact that there was no indication that the first hand account had anything to do with Ms. Young, Professor Bella wondered whether it was in fact a personal account by Ms. Young. Professor Bella thought it might be a “cry for help”.

Professor Bella discussed the mater with some of her colleagues and the authorities. The authorities did not encourage Professor Bella to make a report because, without particulars, it would be difficult to investigate. However, in the end Professor Bella’s Director made the report to the child welfare authorities. Ms. Young was placed on the child abuse registry. Numerous other people learned about it. Ms. Young’s faculty mentors discouraged her from going into social work. She was not accepted in the social work program. She had difficulty getting work in the field.

Inexplicably, more than two years later the child welfare authorities notified her of the concern. This was the first she heard of it. Within 24 hours Ms. Young demonstrated that the first hand account was a quote from a published text and did not relate to her.

The Court’s Analysis

The Court upheld the jury finding that there was no basis for Professor Bella or her Director to suspect that the first hand account related to Ms. Young. Nothing in the wording of the first hand account or the context in which it was presented supported such a belief. That belief was mere conjecture and speculation.

However, the Court went at some length to support the need to make mandatory reports and the protection that would in almost every circumstance (except one like this) provide legal immunity for the report. The Court made the following points:

·        Legal immunity for making mandatory reports is essential to make the system work.

·        There is no obligation on the person with the information to investigate the facts. That is the role for the authorities who receive the report.

·        The person making the report does not have to believe that the underlying concerns are valid. The reporter only needs to believe, on reasonable grounds, that the concern raises an issue that ought to be investigated by the authorities to find out one way or the other.

·        There is immunity even if the report is based on misinformation (e.g., a reporter being told that certain facts exist when, in fact, those facts do not exist).

·        Whether there was reasonable cause to make a report is an objective test. It is in fact a very low test. However, there must be some data upon which a reasonable person would believe that a report ought to be made for the authorities to investigate.

In the end, the Court concluded that despite these significant and necessary protections, Professor Bella and her supervisor had no reasonable cause to make such a report.

The Court was also influenced by some other considerations. For example, it appears that other faculty of the University had been informed of the concerns. These communications to faculty members would not be protected in the same way as the report to the child welfare authorities. In addition, Professor Bella communicated with Ms. Young about her concerns about plagiarism but did not use that occasion to clarify the obvious question of the origin of the first hand account. Finally, the failure of the child welfare authorities to follow up on the concern for over two years certainly aggravated the harm to Ms. Young.

Regulators would be wise to use this case to educate practitioners that, despite the media headlines on the Young case, significant protections exist for mandatory reports.

A copy of the Young case can be found at: www.lexum.umontreal.ca/csc-scc/en/rec/html/2006scc003.wpd.html.

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