Canada: Lee (Litigation Guardian Of) v. Toronto District School Board

Last Updated: April 1 2014
Article by Brian Vail, QC

In Lee (Litigation Guardian of) v. Toronto District School Board,1 the infant plaintiff Cliff Lee suffered a catastrophic brain bleed after an altercation with another student while they were both in grade two. He and his family, under the Family Law Act,2 sued the Toronto School District in common law negligence and occupiers' liability.

The incident occurred on November 26, 1998. The school in question aligned in a north-south direction and the main body of the school also aligned in that direction, in the shape of a reverse letter "L". The tarmac area was located in the "crook" of the "L". There were two play structures on the edge of the tarmac. The northerly play structure was for grades one and two (the "small primary climber"). To the south of that was the junior climber, for older children. The court noted that one could see through both structures. It was noted that "from certain angles, they obscure but do not completely obstruct a view through them to the playing field beyond" (to the north).

The principal of the school was George Brown. The incident occurred during his first year as principal at the school. He had served as a vice-principal at another school previously. Mr. Brown was responsible for assigning teachers to yard duty during recess. When he arrived at the school, he adopted a supervision schedule established by his predecessor. Having supervised the yard himself, he saw no reason to increase the number of teachers beyond two for afternoon recess. Neither the school nor the Board had written guidelines on yard supervision. The principal saw it as a matter of "commonsense". Supervision was discussed at staff meetings from time to time. The principal expected his teachers to "work out a plan of supervision amongst themselves". He expected supervising teachers to "'float,' that is, to circulate and not stand together ... to keep their eyes and ears open and watch"3 and he noted that "it's always important to ... glance, keep glancing around at all areas" and for the supervisors to "be able to float enough to keep being – having a sight line to check out on to the field if there were a few children there."4

The two teachers who were on yard duty for the afternoon recess that day were MacDonald and Babits. They were described as "experienced teachers". They established a supervision pattern that put them in close proximity to most of the students most of the time, but also permitted them to maintain oversight on the playing field. There was also a student teacher "shadowing" the two teachers. The principal noted that "children need to know they are supervised and must be able to see the teacher". Ms. Babits was responsible for the primary climber on the north end of the tarmac. She adopted a pattern of walking around the primary climber, while at the same time keeping an eye on the tarmac and the field. She acknowledged that while walking on the tarmac her line of sight into the field would be momentarily screened by the play structure and the children on it. She was wearing a bright purple track suit which she believed made her plainly visible. MacDonald was responsible for the south end and the junior climber. She had a line of sight to the field when she was at the west end of her walking loop on the tarmac. At one point, the two teachers found themselves together at the edge of the field. They considered whether or not they should recall children from the field because it was wet. They decided not to because the lower grades so rarely had the use of the field — it was usually used by the fifth and sixth graders who were absent that day.

The principal considered the school in question to be a "peaceful school". He had never seen a child make a fist or punch another. The same evidence was given by MacDonald and Babits.

It was noted MacDonald had spent time at a school in a much tougher area "where schoolyard altercations were more common".

The two teachers were normally responsible for supervising 160 students during recess. The principal testified he considered two teachers to be an adequate number of supervisors. He was on the supervision schedule himself and, indeed, frequently went outside and supervised even if he was not on the schedule. He testified he expected teachers to "watch all of the children, but to concentrate on most of them, subject to the situation where an incident arises (in which case a teacher is to go to the 'hot spot' and deal with it)". During the course of the recess, a janitor went out on the roof and tossed down balls that had been thrown on the roof by the children over the previous week. While the janitor did this, MacDonald kept order. This only took "a few minutes" and it did not interfere with Mac- Donald's ability to see what was happening on the tarmac or field.

On the day of the incident, Cliff Lee and other grade two boys had a soccer ball and began playing with it on the tarmac. Babits sent them out on the playfield. The fifth and sixth graders who were normally in the playfield were not there. Since there were other games going on among the children on the tarmac, including hopscotch, basketball, etc. Babits felt playing soccer on the tarmac would have interfered with the other children. She was able to observe the soccer players on the field during her patrol.

When the bell for the end of recess sounded, a student ran up to Babits and told her Lee had been hurt. Babits ran out to him in the field. Lee told her he had been struck by a fellow grade two student, Tevin McNeil. MacDonald noticed Lee on the field, and, as she approached, she met Babits. Observing Lee's distress, she scooped him up into Babits' arms and Lee was taken into the office. MacDonald knew from the plaintiff's behaviour that he was "in considerable difficulty" and emergency services were contacted.

The plaintiff Lee testified his classmate McNeil came up to him on the soccer field and asked him for the ball. When Lee refused to give it to him, McNeil punched the plaintiff on the right temple. The plaintiff had only a vague recollection of what happened next, however, he testified to having felt intense pain, "as if something had burst inside my head". He thought he could "run it off" and he ran for a minute or so. However, the pain worsened. Because of the pain and increasing dizziness, he fell down on his back. He recalled that a friend came over to see what was wrong. He told the friend to go find a teacher. He recalled Babits coming over to him and telling her McNeil had hit him.

McNeil admitted to the principal that he had struck the plaintiff Lee. He made the same admission to the police. McNeil could not be located to be present for trial. By agreement, the police file was admitted, including hearsay content, subject only to weight.

All of this occurred at the afternoon recess between 2:20 and 2:30 p.m. Lee was transported from the school by ambulance to the North York General Hospital. A CAT scan of his head showed a large right temporal parietal intra-cerebral hematoma. He was transferred to the Hospital for Sick Children for an emergency craneometry to remove a blood clot the size of an adult's fist. The plaintiff ended up suffering from a number of disabilities arising from this injury.

Somewhat later, Lee was diagnosed as having a pre-existing condition that had not been previously found. Specifically, he suffered from an undiagnosed arteriovenous malformation ("AVM") at the terminal anterior chorodial artery on this right side. This was treated surgically in the year 2000.

On the question of the factual cause of the plaintiff's brain bleed, the plaintiff called Dr. Richard Perrin, a neurosurgeon. He gave the following opinion:

No eyewitness accounts of what was apparently an intentional blow to the head and the intermediate sequelae are recorded. Nevertheless, given the reconstructed temporal sequence: emerging from class for recess at 2:20 p.m., commencing to play soccer thereafter, and then discovered on the ground holding his head by the end of recess, less than 10 minutes later and by 2:30 p.m., it appears more likely than not that the blow(s) to the head and the intracranial catastrophe are casually related.

In this event, one would postulate that the head blow(s) resulted in commotion of the brain suspended in cerebrospinal fluid and causing disruption of delicate AVM vessel(s). The blow would not need to be of sufficient force to render the patient unconscious. Rather, an abrupt blow (punch to the head) strategically applied at the frontotemporal area could be responsible for such intracranial commotion and vascular disruption.5

In a second report, he stated that an abrupt blow to the head "strategically applied at the frontotemporal area could be responsible for ... intracraneal commotion and vascular disruption".6 He relied on a Japanese study that concluded, "a tendency to develop hemorrhage after trivial head trauma appears to be more prominent at a younger age"7 in AVM patients. Dr. Perrin gave the opinion that blunt trauma to the head causes a commotion of the brain and resulting shearing stress that would cause the rupture of the delicate vessels that were part of the plaintiff's AVM.

The defence relied on Dr. Wallace, a neurosurgeon who specialized in AVMs and aneurysms. He devoted 50 to 60 per cent of his time to this "focused sub-specialty". He was in charge of the Toronto Brain Vascular Malformation Study Group which was the largest in the world and had been in place for 20 years. However, this study did not focus on children, nor did it single out trauma in the questionnaires it used. Dr. Wallace's evidence was that brain AVMs are an unusual condition, with an incidence of one in 100,000. He conceded it was possible that a trauma associated with the alleged blow to the plaintiff's head could be associated with the subsequent hemorrhage, but that this was "not probable". He dismissed the Japanese study relied on by Dr. Perrin relating brain bleed to innocuous trauma, noting the Japanese study's conclusion "remains nothing more than a postulation" as the article expressly stated".

In his report, Dr. Wallace could only identify one incident where trauma induced hemorrhage among the 850 AVM malformations that his group had treated. He consistently advised patients not to adjust their lifestyle to account for the fact they have an AVM. He noted the risk of a brain bleed from an AVM was higher the younger the patient was. In his opinion, 50 per cent of those AVM patients who developed a brain bleed died; while the other half went on to develop permanent disabilities.

The plaintiffs sued the district in both negligence and occupiers' liability. The plaintiffs relied on an accident reconstruction engineer (Jenish) who investigated the site lines in the schoolyard area in question. His evidence was that the two playing structures on the tarmac obscured the playing field somewhat, depending on the position of the supervising teacher.

The plaintiffs also relied on Dr. Marc Green, a psychologist who specialized in human factors. He gave evidence that would affect the perception of a teacher on the tarmac looking out at the playing field beyond the playing structures. In his opinion, there was a "natural human tendency to focus on foreground objects rather than on further-away objects". In his view, the play structures and the children playing on the tarmac would draw a supervisor's attention away from the playground beyond the tarmac.

With respect to the standard of care, the plaintiffs called Dr. Nancy Cohen, who has a PhD in developmental psychopathology. She was qualified as an expert "in the area of psychology respecting child behaviour, adolescent disorders, child supervision, language and, learning disabilities. In her opinion, the school board had been negligent in two respects. First, it was her opinion there were insufficient teachers on yard supervision to have dealt with the number of children in question, given the layout of the schoolyard and where the plaintiff and his friends had been playing soccer. Second, she argued the assailant, McNeil, posed a special risk, warranting closer supervision which had not been carried out by the defendants.

With respect to the general supervision issue, Dr. Cohen re-phrased the question that had been posed to her by the plaintiff's counsel when she was retained to write her report. The original form of the question asked by the plaintiff's counsel was not put before the court. She did not remember what it was and the plaintiff's counsel elected not to disclose it to the court. She was critical of the school board's supervision policy and procedure, giving the opinion the board, "did not provide sufficient support to principals to carry out their supervisory duties by creating consistency in guidelines and training across schools in their jurisdiction". She relied heavily on an American report that gave the opinion that the appropriate ratio of supervisors to students was one supervisor for every 50 students, whereas she found the school board's website referred to a ratio of one supervisor for every 50 to 100 students. She was critical on the basis that one of the two supervising teachers, MacDonald, was not actively supervising during the entire recess because she assisted the janitor who was tossing balls down from the roof. In her opinion, the teachers had not remained in a close proximity to the students involved in the accident in a situation where their site lines were obstructed. She concluded as follows with respect to the two teachers:

Neither of the teachers discharged the standard of care of a careful and prudent parent. Specifically, the two teachers responsible for supervision were not in a physical position with regard to proximity to the children on the playing field or clear sightline of the children to see or hear signs that they would need to intervene. Moreover, Heather MacDonald was occupied with an activity irrelevant to her main job of supervising children during recess. Based on even the simplest definition of supervision as "being present", supervision was inadequate given that both Tricia Babits and Heather MacDonald were not close enough to the boys in the soccer field to be considered to be "present." That is, they did not have a clear sightline or hear an altercation.8

With respect to the assailant, McNeil, Dr. Cohen reviewed his Ontario Student Record from junior kindergarten to grade two. The skills identified in the kindergarten report cards were "nondescript" whereby each particular skill was graded as either being "developed" or "beginning to develop". McNeil's kindergarten teacher noted that McNeil "accepts responsibility for his own behaviour" as a "developed" skill and that he was "beginning to develop" in terms of working and playing co-operatively with others. She found in his senior kindergarten year, McNeil "had a good year" wherein he made significant progress. She noted he "enjoys playing with the many friends that he has made" and that he had "learned to share and co-operate with them". She noted he would need "some extra help to succeed in grade one" but felt that his "co-operative manner" was a good sign on that point. McNeil's grade one report card placed him slightly behind his peers in virtually all categories. His grades were usually Ds with an occasional "C".

As to his behavior in grade one, he was defined as "a gentle, happy boy who really tries to do his best but can be easily distracted by other students". McNeil's teacher in grade two (the school year of the incident) testified that McNeil was pleasant. She said he "got along with other students and tried very hard" although "he was not a top student". However, she "did not find him to be a slow learner". She felt he "needed to work harder and found that he had no real difficulty expressing himself". His report card in grade two was better than that for grade one. There was nothing negative stated about his behaviour in his grade two report card.

The plaintiff relied significantly on three "behavioural incidents" in McNeil's record for grade two that occurred before the alleged assault on the plaintiff Lee. Months earlier, the principal came upon McNeil and another student having a "tug-of-war over a ball" on the tarmac, where he had to encourage the two students to sort out the issue more sensibly. He described it as a "minor physical tug-of-war over a ball" and noted McNeil had not been "pushing the fellow student", that there was "no punching involved" and McNeil had just been "aggressive in trying to get the ball away". Second, there was an incident documented for September 12, 1998 where McNeil admitted on the incident report form that what he had done wrong was to play tackle football and he should not have been playing the game. Third, on the day before the alleged assault on the plaintiff, there was a conference record form signed by McNeil's parent with respect to "fighting at lunch recess". In one of the incident report forms relating to that incident, McNeil admitted he was "fighting" and what he should have done was to "tell him to stop". The principal was not aware of the previous days' incident. The court noted there was "no evidence of what Tevin [McNeil] actually did on November 25, 1998 to warrant discipline" and that "it was plainly not a physical fight because Tevin was not sent to the office".

The plaintiff also referred to post-incident indications given to the principal by the lunchroom supervisor suggesting, among other things, that McNeil "gets himself in scrapes", "doesn't' think sometimes", and "engages in a little shove sometimes" and that he had "trouble verbalizing, communicating". However, the lunchroom supervisor indicated McNeil was "not [a] little demon", that this was "all minor stuff" and there had been "no serious violence".

Finally, the plaintiff relied on a post-incident disciplinary matter relating to McNeil where he had been "bending someone's hand".

To read this article in full, please click here.

Originally published in Risk Management in Canadian Education.

Footnotes

1 [2013] O.J. No. 1157, 2013 ONSC 3085.

2 R.S.O. 1990, s. F.3.

3 Supra note 1, at para. 78.

4 Ibid.

5 Ibid., at para. 24.

6 Ibid., at para. 26.

7 Ibid., at para. 27.

8 Ibid., at para. 97.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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