COURT OF APPEAL FOR ONTARIO

CITATION: Rollins v. English Language Separate District School Board #39, 2012 ONCA 104

DATE: 20120216

DOCKET: C50869

Doherty, Simmons and Epstein JJ.A.

BETWEEN

Lindsey Rollins, a minor, by her Litigation Guardian, Elizabeth Rollins, Elizabeth Rollins

Plaintiffs (Appellants)

and

English Language Separate District School Board #39, Oscar Chaput, “John Doe”

Defendants (Respondents)

Paul J. Pape and Shantona Chaudhury, for the plaintiffs (appellants)

James D. Virtue and Rasha El-Tawil, for the defendants (respondents)

Heard: February 9, 2012

On appeal from the judgment of Justice Edward Ducharme of the Superior Court of Justice, dated July 13, 2009, with reasons reported at [2009] O.J. No. 6193.

ENDORSEMENT

[1] The trial judge found as a fact that the appellant, when she was six years old, was struck on the head with rollerblades by a fellow student. The incident occurred in the school playground at lunchtime. The appellant submits that given that no report of the incident was ever made by any supervising teacher, the trial judge’s finding that the appellant was struck by the rollerblades is inconsistent with his further findings that a supervising teacher was present in the schoolyard at the time of the incident and that there was no breach of the school’s duty of care owed to the appellant. The appellant contends that the absence of any report concerning the incident compels one of two conclusions, either there was no supervisor present or, if a supervisor was present, he or she did not see the incident. The appellant submits that either conclusion compels a finding that the school was negligent.

[2] There was very little evidence about the incident itself, very little reliable evidence about the events following the incident, and no evidence of the events leading up to the incident. The only eyewitness evidence testimony came from a young classmate of the appellant, who was six years old in 1990 when the incident occurred. The appellant’s action was commenced in 1998 and the eyewitness testified at trial in 2009, some 19 years after the incident.

[3] The trial judge carefully examined the evidence of this eyewitness. He accepted only a small part of her evidence as it related to the actual incident and none as it related to the immediate aftermath of the incident. The trial judge’s relevant findings of fact are set out in his reasons, at paras. 51 and 53:

Against this backdrop, I have concluded that on May 15, 1990, Lindsey likely suffered an injury while playing in the schoolyard at the noon recess, and that the injury was probably caused by a boy striking her from behind with rollerblades. Though the only eyewitness, Ms. Lozon, was six when she witnessed the blow, she never wavered in her assertion that she saw how it happened. Sudden and traumatic as the moment was, resulting in Lindsey going to the ground, and perhaps momentarily losing or seeming to lose consciousness, it is entirely understandable, that even today, Ms. Lozon would retain a vivid recollection of it.

In my view, weighing all the relevant evidence, the plaintiffs have not established on a balance of probabilities that the boy swinging the rollerblades was older, or that the striking of Lindsey was anything but an act committed suddenly and without warning. In the same way, the plaintiffs have not shown that the swinging of the rollerblades was for any time extending beyond mere seconds.

[4] The trial judge also found as a fact that the incident was not reported to anyone at the school until several years later. The failure to report the incident explained why it had not been investigated and no report had ever been prepared.

[5] It was open to the trial judge to take this view of the evidence. On this view, it cannot be said that the failure of a supervising teacher to intercede and prevent the injury demonstrates either that no supervisor was present or that if one was present, he or she failed to provide the required level of supervision and was negligent. On the facts as found by the trial judge, the incident could well have occurred without any negligence on the part of a supervising teacher. Similarly, on those facts, the entire event could have gone unnoticed by a supervising teacher. In light of the absence of any evidence about what happened immediately before the appellant was hit and the absence of any reliable evidence about the events subsequent to the blow, it cannot be said that the failure of a supervising teacher to see the incident and attend to assist the appellant demonstrates that there was no supervising teacher on duty. Nor can it be said that if there was a supervising teacher on duty, his or her failure to respond to the incident demonstrates negligence. On this record, far too little is known about the circumstances surrounding the incident to draw either inference of negligence. More to the point, it cannot be said that the trial judge’s refusal to draw those inferences was unreasonable.

[6] In a related but more specific argument, the appellant submitted that the trial judge misapprehended the evidence of the school principal concerning the school’s policy with respect to rollerblades. In his reasons, the trial judge indicated that the principal had testified that there was a policy against the use of rollerskates and skateboards on school property and that, in his view, that policy would extend to rollerblades if they became an issue. In fact, the principal had testified that the policy prohibited bringing skateboards or rollerskates on to school property at all. The principal had indicated that, in his view, that prohibition also applied to rollerblades.

[7] We are not satisfied that the trial judge’s misapprehension of the evidence was material to his finding that the appellant had failed to demonstrate any breach of the duty of the care owed to the appellant by the school. In the absence of any evidence as to the circumstances surrounding the incident, it cannot be said that the mere fact that a student was in possession of rollerblades on school property, even if in contravention of school policy, established that the incident was caused by a failure to adequately supervise the playground and enforce school policies. The failure to intercede and enforce the school policy regarding rollerblades before someone was hurt could certainly, in some circumstances, constitute negligence. In other circumstances, it would not. The appellant did not lead any evidence to establish circumstances that could justify a finding that the failure to intercede and enforce the school’s policy against rollerblades before the incident occurred demonstrated a breach of the school’s duty of care to the appellant.

[8] There is no basis upon which we can interfere with the trial judge’s finding, at para. 120 of his reasons, that the school did not breach its duty of care owed to the appellant.

[9] The trial judge’s finding that the plaintiff had failed to establish a breach of the duty of care owed to her by the school necessitated the dismissal of the action. The trial judge went on to hold that the appellant had also failed to establish causation primarily because of the unknown aetiology of the disease from which she now suffers.

[10] The appellant also attacked the causation finding on appeal. As we are satisfied that the trial judge’s finding that there was no breach of the duty of care must stand, there is no need to consider the causation argument. We decline to do so.

[11] The appeal is dismissed. The respondents do not seek costs and we would not impose any costs on the appeal.

“Doherty J.A.”

“Janet Simmons J.A.”

“G.J. Epstein J.A.”