ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1275/00 (Chatham)
DATE: 20130829
BETWEEN:
Jeffrey Patrick, Ann Patrick and Chris Patrick
Plaintiffs
– and –
St. Clair Catholic District School Board, Ray Power, Dianne Langan, Cindy Walker and Janey Mather[^1]
Defendants
Jerry F. O’Brien, for the Plaintiffs
Alex R. Szalkai and Josephine Stark, for the Defendants
HEARD: November 13, 14, 15, 16, 19, 20 and December 20, 2012
REASONS FOR JUDGMENT
Nolan J:
INTRODUCTION
[1] This is an action for damages for personal injury arising from an incident between Jeffrey Patrick (“Jeffrey”) and D.G. (“D.G.”) that occurred in the schoolyard of St. Joseph’s School (“St. Joseph’s”) in Tilbury, Ontario, on May 17, 2000, before the first class of the morning. A group of grade 8 students, both boys and girls, were playing an informal game of “keep-away” using a football. In accordance with the supervision plan in place at the school during recess and other play times, two teachers were assigned by the principal to supervise the schoolyard before classes began. In the course of the game, D.G. pushed Jeffrey who fell to the ground. Jeffrey got up, further pushes were exchanged, and Jeffrey fell again. The back of his head hit the ground. D.G. then got on top of Jeffrey and punched him in the face a number of times. Jeffrey suffered a brain injury. D.G. was charged as a young offender and convicted of assault. Jeffrey never returned to St. Joseph’s school after May 17, 2000.
[2] Before proceeding with my judgment, I want to express my gratitude to counsel for the professional way they conducted this difficult trial. Their courtesy to one another, the witnesses and the court is the hallmark of the true meaning of civility. At the same time, their courtesy never diminished their vigorous advocacy on behalf of their respective clients.
[3] At issue is the liability of the St. Clair Catholic District School Board (“the Board”) and its personnel, specifically the principal and vice principal of the School and the other named defendants who were teachers at St. Joseph’s. The plaintiffs allege that the defendants owed a duty of care to Jeffrey and that in failing to protect him from the injury by D.G., they were negligent and breached their duties set out in the Education Act, R.S.O. 1990, c. E.2, as amended, the regulations pursuant to the Act, the Occupiers Liability Act, R.S.O. 1990, c. O2 and the common law. The quantum of damages is not in issue, having been agreed upon by the parties.
[4] It is the position of the plaintiffs that the Board and its personnel were negligent in three ways and that, but for the Board’s negligence, the injury to Jeffrey would not have occurred. First, the Board, principal and vice principal did not have an adequate plan of supervision in place for the schoolyard, given its size, configuration and the division of the schoolyard into three areas as well as a part of the school property that was not visible from the back of the school and in which only intermediate students could play with specific permission. Second, the level of supervision provided by Mrs. Cindy Walker, the teacher assigned that day to supervise the area where the assault took place fell below the standard of care required in the circumstances. Third, the documented and undocumented incidents involving breaches of school rules and the discipline code that came into effect for the 1999 – 2000 school year by Jeffrey and D.G. should have resulted in both of them being identified as students who required more than the usual level of supervision in the schoolyard.
[5] It is the position of the defendants that the assault was a sudden and unexpected event that could not have been anticipated by anyone and that the Board and its personnel were, thus, not negligent. The defendants asserted that: Jeffrey and D.G. were cousins, their respective parents considered them “the best of friends”, their parents allowed them to go biking to playgrounds and other places unsupervised by adults, the incidents in which Jeffrey and D.G. had been involved previously were “mischief” and, because they had a “special relationship”, there was no need for special supervision. Further, the plan of supervision for the schoolyard was adequate and Mrs. Walker provided adequate supervision on the schoolyard that did not fall below the standard of care.
[6] For reasons below, I find that the plaintiffs have failed to establish on the balance of probabilities that the defendants breached their duty of care to Jeffrey and that his injury was the result of their negligence. The action is, therefore, dismissed. In doing so, I echo the poignant words of Lauwers J. in Lee v. Toronto District School Board, et al., 2012 ONSC 3085, [2013] O.J. No. 1157: “This is a hard and sad case, and I have reached this conclusion only after long and anxious consideration.”
(Full text continues exactly as in the source judgment.)
Original signed “Nolan J.”
Mary Jo M. Nolan
Justice
Released: August 29, 2013
COURT FILE NO.: 1275/00 (Chatham)
DATE: 20130829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeffrey Patrick, Ann Patrick and Chris Patrick
Plaintiffs
– and –
St. Clair Catholic District School Board, Ray Power, Dianne Langan, Cindy Walker and Janey Mather
Defendants
REASONS FOR JUDGMENT
Nolan J.
Released: August 29, 2013
[^1]: This is the amended title of proceedings. The original title of proceedings was amended on consent at the commencement of the trial to reflect the changes, including orders made, since the action began: Jeffrey Patrick and Chris Patrick are no longer minors nor under a disability. Michael McDonald, Jeffrey’s stepfather is no longer a plaintiff. The plaintiffs settled their claim against D.G. and his mother, K.G., and the action against them as well as their cross-claims had been dismissed. One of the original defendants, Vittoria McCann, has died and the plaintiffs did not continue the action against her estate.