Canada: No Playing Around: Tort Liability And School Yard Injuries

Introduction

Recently, the public learned of a lawsuit against two children regarding a schoolyard incident in 2015. With school back in session, what does this current state of affairs mean for students, school boards – and even parents moving forward? Furthermore, what should insurers be thinking about as children fill the halls and playgrounds for another year?

A Push, a Shove, and a Plaintiff

In 2015, two 10 year–old students at a Toronto Catholic school were outside for recess. The pair decided to play a "game" with another student, where one of them pushed the student and the other kneeled behind him to trip him. The third student claimed he did not want to be pushed, but that his classmates ignored him. The parents of the two 10 year–olds insist their children did not intend to cause any harm. However, the third student suffered a broken arm in the incident.1

Eight months later, the mother of the injured boy filed a lawsuit for $600,000 in damages plus costs. The lawyer for this young Plaintiff claimed he suffered "great pain" and his mother had to take time off work to care for him after the incident. 2

This lawsuit names the Toronto Catholic District School Board ("TCDSB") and the two children involved as defendants. The Ontario School Boards' Insurance Exchange, which provides insurance coverage to the TCDSB, also crossclaimed against the two children. The crossclaim alleges the children were negligent and lacked respect for the "hands off policy" at school.3

My Child Did What? A Primer on Intentional Acts and Negligence

Many parents and insurers would be shocked to learn that children are being sued for schoolyard incidents. However, the existence of a lawsuit does not always mean that a child or anyone else will be found liable. There are different considerations based on whether the acts were intentional or negligent.

Intentional Acts (Including Crimes)

To be sure, crimes such as assault and battery are intentional acts that could lead to criminal charges. However, most children would not be charged criminally for schoolyard incidents. The Youth Criminal Justice Act ("the YCJA") acknowledges that "extrajudicial measures are often the most appropriate...to address youth crime".4 Moreover, a youth must be between 12 and 17 years–old to be charged under the YCJA. Youth under the age of 12 are considered "children"5 and cannot be charged criminally in Canada.6

Of significance to this article, battery is an intentional tort that could be grounds for a civil lawsuit. As per Malette v Shulman, a person commits battery where there is direct, intentional, and non–consensual contact with another person that is harmful or offensive to the person's dignity.7"Intentional" in this context means the person intended to act; there is no requirement that the person intended to cause harm.

Negligence

Negligence is another tort that could be used as grounds for a civil lawsuit. Although there are several parts to the tort, negligence could occur where someone – such as student, school board or parent – owed a duty to ensure that other students playing in a schoolyard were not harmed. There is a certain standard of care that must be observed in carrying out this duty, as will be discussed further below.

For children under 6, there is no liability in negligence under the Canadian common law.8 Like in criminal law, children are also held to a different standard once they reach age 18.9 Between ages 7 and 17, the standard of care is determined on a case–by–case basis.10 Factors for determining the appropriate standard of care include age, intelligence and experience of the child involved11

Once a child reaches age 18, they are considered an adult and held to the standard of an "ordinary prudent person."12

Schools and Hard Knocks: Duties of School Boards

School boards could also owe a duty of care to ensure students playing in a schoolyard are not harmed. This duty of care could include a duty to supervise students to the standard of a "careful or prudent parent".13

In Wright (Litigation Guardian of) v Moosomin First Nation,.14 the Court found a First Nation school15 liable for a student's injuries. The student was injured when an older child pushed him and caused him to fracture his arm at a recess break. Overall, the Court determined the school exercised inadequate playground supervision and was thus liable in negligence.16

In the opposite result, the Court in Patrick v St. Clair Catholic District School Board17 found the school board not liable for a student's playground injuries. The Court found an adequate plan of supervision was in place, such that the school board met its standard of care.18

Outside of the case law, school boards have a duty under the Occupiers Liability Act19 to ensure schools are safe for students. The statute would cover issues such as maintenance of the yards and snow removal in the winter.

Parental Control: Duties of Parents

Similar to school boards, parents could also have a duty to supervise their children and ensure they do not harm other students at school. After all, a finding of liability hinges on what a careful or prudent parent would do in the circumstances.

In Godonoaga (Litigation Guardian Of) v Khatambaksh (Guardian of),20 parents were sued for injuries caused by their children to another student in a schoolyard fight. The parents were sued for failure to supervise and negligent upbringing of their children. Although this case focused on insurance coverage for the lawsuit, it shows that litigation against parents is not new. Rather, it is something both parents and their insurers should consider.

Insurance Coverage for Schoolyard Injuries

Standard home and tenant policies include liability insurance,21 often with coverage between $1,000,000 and $2,000,000.22 Children who live at home with parents who have purchased these policies would also be covered.

Nonetheless, Co-operative Fire and Casualty Company v Saindon confirms that intentional acts are excluded under standard liability policies.23 Students who assault or batter other students at recess and lunch could thus be denied coverage. However, there must be an intention to injure before an insurer can take an off-coverage position.24 The more recent cases of Non-Marine Underwriters, Lloyd's London v Scalera25 and Sansalone v Wawanesa Mutual Insurance Co26 affirm this principle.

A separate question here is whether parents – who did not engage in the incidents or commit intentional acts – would be covered if sued.

To be sure, failure to supervise is often plead as a form of negligence against parents to trigger insurance coverage. The more possible liable parties to an action, the better chances a plaintiff has to recover their damages.

In Godonoaga,27 the Court determined the defendant parents were covered by their homeowner's policy. The Court highlighted that the parents and children were separately insured under this policy. So while the insurer did not have to respond to claims against the children, which were framed in assault and thus excluded from coverage, the parents were in a different position. The claims against them were framed in negligence, and the insurer was required to cover them.28 The fact that the claims arose out of the same transaction in which intentional, excluded acts occurred did not make a difference.

Conclusion

There is no playing around when it comes to schoolyard incidents. This recent lawsuit shows that students, school boards, and parents can all be targeted when a child is injured on the playground. Although liability and coverage will vary from case to case, everyone should be aware of these kinds of claims and the possible repercussions. For those without insurance, a standard liability policy may be worth adding to the back to school list of pencils, paper, and backpacks.

Footnotes

1. Andrea Gordon, Schoolyard shove by two 10–year–olds leads to lawsuit, The Toronto Star (30 August 2017); Angela Mulholland, Why parents may need liability insurance to cover their children's schoolyard fights" (1 September 2017).

2. Ibid.

3. Ibid.

4. SC 2002, c.1, s 4(1)(a).

5. Ibid, s 2(1).

6. Criminal Code of Canada, RSC 1985, c C–46, s 13.

7. 72 OR (2d) 417 at para 17.

8. Vaughan v Menlove (1837), 132 ER 490.

9. Ibid.

10. McHale v Watson (1966), 115 CLR 199.

11. Ibid.

12. Supra note 5..

13. Myers v Peel (Count) Board of Education, [1981] 2 SCR 21at para 14.

14. 2003 CarswellSask 140..

15. The Court determined that in this case, the First Nations was analogous to a school board. See Ibid at para 13.

16. Ibid at para 14.

17. 2013 ONSC 4025.

18. Ibid at paras 6 and 250.

19. RSO 1990, c O.2, s 3(1).

20. (2003), 188 DLR (4th) 706.

21. Supra note 1.

22. Ibid.

23. [1976] 1 SCR 735 at 738.

24. Non-Marine Underwriters, Lloyd's London v Scalera, 2000 SCC 24.

25. Ibid.

26. [2000] 1 SCR 627.

27. Supra note 20.

28. Ibid at 20.

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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