In Annapolis County District School Board v Marshall,
the Supreme Court of Canada confirmed that a heightened standard of
care applies to drivers who operate their vehicles where children
are likely to be present.
On April 12, 1994, four-year-old Johnathan Lee Marshall was hit
by an empty school bus while playing with his brothers in front of
his family's home. The defendant, Douglas Feener, was driving
along the highway in front of the Marshall's home. Sadly,
Johnathan ran onto the highway and into the path of the oncoming
bus. Mr. Feener was unable to stop in time. Johnathan suffered
catastrophic injuries. At trial, the jury found that Mr. Feener had
not caused or contributed to Johnathan's
Our courts have long held that a heightened standard of care
applies to drivers who operate their vehicles where children are
likely to be present. What was at issue in this case was the manner
in which a trial judge should charge the jury.
In his charge to the jury in this case, the trial judge referred
to the statutory right-of-way provisions in the Nova Scotia
Motor Vehicle Act. These provisions state that "every
pedestrian crossing a roadway at any point other than within a
marked or unmarked crosswalk, shall yield the right of way to
vehicles upon the highway". The trial judge also told the jury
that the driver "has the right to expect that a pedestrian
will not act without care."
The Nova Scotia Court of Appeal held that the trial judge had
misdirected the jury in referring to the right-of-way provisions
under the Motor Vehicle Act. The reference to these
provisions improperly invited the jury to treat Johnathan like an
adult, which led the jury to find Johnathan responsible for the
A majority of the Supreme Court of Canada held that the Court of
Appeal had failed to appreciate the dual purpose of the statutory
right-of-way provisions. Although these provisions can be used to
determine whether the pedestrian is contributorily negligent, they
can also help determine whether the driver breached the applicable
standard of care in the circumstances. The trial judge made it
clear early on in his charge that Johnathan could not be held
contributorily negligent because of his young age. Thus, it would
have been clear that the trial judge was properly referencing the
right-of-way provisions only to determine the driver's standard
The Supreme Court held that the trial judge's charge
correctly indicated that if children are likely to be present, then
the driver must take extra precautions; otherwise, the normal
standard of care would apply. Although the trial judge had
specifically noted that motorists should drive more carefully in
school and playground areas and in a built-up residential district,
the court held that the trial judge had not implied that these were
the only circumstances in which children were more likely
to be present.
Given that these particular circumstances were not present when
this accident occurred, the jury would have correctly inferred that
they were to determine whether any other special circumstances
existed that would indicate to a driver that he was in an area
where children were likely to be present.
Although the jury was not persuaded that special circumstances
existed in this case, it serves as a cautionary tale that insureds
can be held to a higher standard of care in an accident involving
young people regardless of whether it takes place at a busy
intersection or near a school.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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