In April of 2009, grade 5 student Bezawit Chanyalew
("Bezawit") suffered a cardiac arrest during gym class at
her Vancouver school. Before emergency workers could arrive,
she suffered brain damage due to a lack of oxygen, leaving her with
severe cognitive and physical disabilities. The school board
(the "Board") recently settled her claim out of court for
$1.7 million. The allegations of negligence levelled against
the Board raised some interesting questions about the standard of
care to which school boards may be held.
Two days prior to the incident, the school Bezawit
attended received a fax stating that Bezawit had a congenital heart
condition known as "Long QT Syndrome", putting her at
increased risk of seizures and cardiac arrest, especially if she
engaged in physical exertion. Bezawit was running in a 100
metre relay when she collapsed.
The Statement of Claim filed against the Board alleged that the
Board's school was negligent in two ways: first, that after
receiving the fax, the school should have immediately developed a
protocol to minimize Bezawit's risk of injury; and second, that
the school should have obtained all the information necessary to
ensure Bezawit was safely able to participate in physical education
As the Board settled the claim, the impact, if any, of class
size, student/teacher ratios, and supports for students with
special needs will not be litigated in this case, although these
were among the key issues in the recent teachers' strike in
British Columbia. Bezawit's teacher reported during
examinations for discovery that she had between 28 and 30 students
in her grade 5 class, three of whom had autism, and one or two of
whom had severe learning disabilities. There was one support
worker for the class. While an appropriate ratio of staff to
students will inevitably depend on the individual needs of the
students, school boards may wish to take note of the fact that
class size and composition was raised at the discovery stage of the
This tragic incident also highlights
the importance of ensuring that schools have the capacity to
provide adequate emergency response measures. The 2006 death
of 11-year-old Barrie student Chase McEachern, who also collapsed
in gym class, led to a campaign in his memory to make Automated
External Defibrillators ("AED's") available in
Ontario schools and hockey arenas. As a result, financial
assistance and training in the use of AED's in schools and
recreational centres has become widely accessible.
The ChaseMcEachern Act
(Heart Defibrillator Civil Liability Act) 2006 protects from
liability those who, "in good faith, voluntarily and without
reasonable expectation of compensation or reward" use a
defibrillator on a person experiencing an emergency, as well as
owners and occupiers of the buildings where AED's are
installed. In addition, the Good Samaritan Act
(2001) can be relied upon by people who voluntarily offer CPR or
first aid assistance in an emergency.
Statistics show that approximately 1 in
600 teens has an undiagnosed heart problem, which can translate
into two to three students in a typical high school. In
addition, there are students like Bezawit and Chase who have a
known condition. Defibrillation, along with CPR, is
considered the definitive treatment for sudden cardiac
arrest. With AED's increasingly common in a variety of
settings, the standard of care for operators of public spaces, such
as school boards, is evolving to include the provision of these
devices and staff training for its safe and appropriate
As School Councils prepare to convene
and develop their goals for the coming school year, principals may
wish to consider involving the parent community in a review of the
school's emergency response capabilities and whether access to
all available means and resources have been explored.
On October 16, 2014 at 10:00 a.m. our Morning
Recess webinar, Parent Councils: What Every
Principal Needs to Know, will examine fundraising and
other issues important to school councils and school
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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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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