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


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 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 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.


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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McCague Borlack LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCague Borlack LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions