COURT FILE NO.: 4631/15
DATE: 2021-04-27
SUPERIOR COURT OF JUSTICE-ONTARIO
RE: MARIE BOUSTANY and BRIAN PICCIONI, Plaintiffs
AND:
HARVIR SINGH, by his Litigation Guardian, the Public Guardian and Trustee, KAMALJIT SINGH, THE CORPORATION OF THE TOWN OF HALTON HILLS and THE HALTON DISTRICT SCHOOL BOARD, Defendants
BEFORE: Gibson J.
COUNSEL: Roger R. Foisy and Daniel Berman, counsel for Plaintiffs
Christopher Missiuna, counsel for Defendants, Kamaljit Singh and for Harvir Singh, by his Litigation Guardian the Public Guardian and Trustee
HEARD: January 5, 2021
ENDORSEMENT
Overview
[1] This is a case which involves consideration of an evolving area of the law of negligence: whether the accepted duty of care between a caregiver and a party under a disability should also be extended to create an obligation from the caregiver to an unknown member of the public as a result of that care, even if the caregiver is not present.
[2] The defendant Kamaljit Singh moves pursuant to Rule 21.01(1) of the Rules of Civil Procedure for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs.
[3] The defendant Kamaljit Singh asks for a finding that the law does not recognize a duty of care between Kamaljit Singh and the plaintiffs, and an Order dismissing the claim against her as having no prospects of success.
[4] The plaintiffs Marie Boustany and Brian Piccioni resist the motion and request dismissal of the defendant Kamaljit Singh’s motion to strike the claim as against her. They submit that a Rule 21.01 motion can only succeed when it is plain, obvious and beyond doubt that a claim is likely to fail. They assert that jurisprudence of the Supreme Court of Canada and other courts have left open the possibility for parents or caregivers to be held liable in situations where a minor injures a third party despite not being physically present. They submit that Kamaljit Singh stood ‘in loco parentis’ to Harvir and had a heightened duty, based on his severe autism, to provide adequate supervision and care. They contend that it is not plain, obvious and beyond doubt that the claim against Kamaljit Singh is certain to fail pursuant to Rule 21.01 and ask that the motion to strike be dismissed.
[5] The plaintiffs contend that the information with respect to Kamaljit Singh’s care and supervision of Harvir Singh, her responsibility for administering Harvir with appropriate doses of prescribed medication, and her contact with the Halton District School Board are genuine issues for trial. The material facts at this point in the litigation are disputed, speak to the issue of Kamaljit Singh’s standard of care, and require further investigation to determine her liability.
[6] The defendant Kamaljit Singh replies that this is a motion about the duty of care, not the standard of care, and that the position of the plaintiffs conflates the two.
Facts
[7] The parties reached an agreement concerning the underlying facts as it relates to this motion.
[8] Kamaljit Singh is the grandmother of Harvir Singh, a child with significant autism. Harvir and his mother had been living in the home of Kamaljit Singh for several years prior to the date of the subject incident. At the time of the incident which founds the claim, she was effectively Harvir’s primary caregiver. She became his primary guardian when Harvir’s mother was unexpectedly hospitalized a few years prior.
[9] Kamaljit was responsible for Harvir’s general care and administering his prescribed medication. Kamaljit provided medication to school staff weekly to be administered to Harvir at specific times.
[10] On December 2, 2013, Harvir was a student under the care of a teacher and educational assistants with the Halton District School Board at a public swim at the Gellert Community Centre pool in Halton Hills. Harvir was 17 years old at that time. Kamaljit Singh was not present at the pool.
[11] While at the pool, Harvir made contact with the plaintiff Marie Boustany, a member of the public swimming at the pool that day, who claims that she suffered personal injury as a result. The plaintiff Brian Piccioni is the husband of Marie Boustany and claims loss of guidance, care, and companionship related to that event.
[12] The plaintiffs claim Kamaljit Singh was negligent in her role as Harvir’s caregiver which led to the December 2, 2013 incident at the pool, and that she is liable to them as a result.
[13] Kamaljit Singh asserts that Canadian common law does not recognize such a duty of care. She submits that there was insufficient proximity between Kamaljit Singh and Marie Boustany to have Kamaljit Singh’s care of Harvir reasonably foreseeably result in injury to Marie Boustany.
[14] The plaintiffs initially did not seek compensation from Kamaljit Singh, who was not named in the original Statement of Claim issued on December 1, 2015. The Statement of Claim was amended by the Order of Miller J. dated February 1, 2018. The amendments allege that Kamaljit Singh was negligent in caring for and managing Harvir’s healthcare and medication, and is liable to the plaintiffs as a result. The plaintiffs submit that they only discovered their claim against Kamaljit Singh on or about November 14, 2017, when counsel for the Defendant Halton District School Board provided to the plaintiffs previously undisclosed information suggesting that Kamaljit Singh had changed Harvir’s prescribed medication dosage which was in relation to his development disability in or around the time of the incident at the pool. The subsequent changes to his behaviour in this time period were allegedly never communicated to the Halton District School Board prior to the incident. The plaintiffs allege that Kamaljit advised that Harvir’s doctor had recently increased his medication dosage; however, Kamaljit thought it was a mistake and unilaterally made the decision on her own to return Harvir back to his original dosage. They also allege that the educational assistants were not previously made aware of a change to Harvir’s dosage, and that there had been recent sleeping and behavioural issues with Harvir.
[15] I will first outline the submissions made by the parties, before summarizing my analysis and the conclusion that I have reached on the issue before the Court.
Position of the Moving Party Defendant Kamaljit Singh
[16] The primary position of the moving party defendant Kamaljit Singh is that the law does not recognize a duty of care between Kamaljit Singh and Marie Boustany.
[17] She submits that Canadian common law does not recognize such a duty of care, as there was insufficient proximity between Kamaljit Singh and Marie Boustany to have Kamaljit Singh’s care of Harvir reasonably foreseeably result in injury to Marie Boustany.
[18] Alternatively, she submits, the Court should not find a duty because it would be damaging to the public good to create a situation where the caregiver of a disabled person can be liable to a stranger due to the actions of the disabled person. This is particularly so when the caregiver is not physically present. Such a legal duty, she submits, would be a major disincentive for family members to assume a caregiving role in the first place.
[19] The motion is brought pursuant to Rule 21.01(1) which allows a party to move before a judge, “for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs.”
[20] The defendant Kamaljit Singh pleads she did not owe a duty of care to the plaintiff.
[21] Whether or not a duty of care exists is a question of law: Rankin’s Garage & Sales v. J.J., 2018 SCC 19 at para. 19. The legal test to determine whether there was a legal “duty of care” between parties was developed as the “Anns Test” established by the United Kingdom’s House of Lords in Anns v. Merton London Borough Council,[1978] AC 728. The Anns Test was adopted and explained by Canada’s Supreme Court of Canada in 2001 to become the “Anns/Cooper Test”: Cooper v. Hobart, 2001 SCC 79, [2001] 3 SCR 538 at para. 41. It continues to be the test to apply to identify whether there is a “duty of care” in Canadian law: Rankin’s Garage at paras. 9, 11, 16-17.
[22] The first step in an analysis of a claim concerning negligence is determining whether there is a prima facie duty-of-care between the parties.
[23] The burden is on plaintiffs to demonstrate a prima facie duty of care exists: Rankin’s Garage at para. 19.
[24] It is not necessary to conduct the full Anns/Cooper analysis if a previous case has already established that the duty of care in question exists (this meets the prima facie test): Rankin’s Garage at para. 18.
[25] The defendant submits that, following a review of jurisprudence and for the reasons that follow, the duty-of-care alleged in the plaintiffs’ claim has not already been recognized in Canadian law.
[26] Kamaljit Singh was a caregiver to Harvir Singh. The plaintiffs claim that Kamaljit Singh, in acting as caregiver, owed an obligation to the plaintiffs and is liable for the actions of Harvir (the dependant).
[27] In what Kamaljit Singh submits was an analogous case, Morrison et al. v. Hooper and v. Young et al. 2010 ONSC 4394, Wilson J. refused to find a duty of care upon children (the caregiver) of an elderly parent (the dependant) who was alleged to have caused a motor vehicle accident by acting improperly as a pedestrian. The Court found the caregiver’s obligations to the dependant did not extend to the plaintiff (the Court also rejected there were as stringent obligations between elderly parent and children).
[28] The law does recognise a duty of care in other paternalistic relationships of supervision and control such as those of parent-child or teacher-student. The defendant submits there was a duty owed by the school board to supervise Harvir in the role of teacher-student. The defendant also agrees that she had a general duty to Harvir to provide (or enable) reasonable medical care when he was in her care. That obligation, she submits, is only between Kamaljit and Harvir. The law has not extended that duty to also include third parties such as members of the public.
[29] There is also a general duty to supervise a charge when the caregiver is physically present, the defendant recognizes. For example, with the case of a misbehaving child. This is, however, not such a case. Kamaljit Singh was not present at the pool. She could not have exercised direct supervision. This was the role of the Halton District School Board at the time who was standing in loco parentis (“in place of a parent”).
[30] The claims advanced by the plaintiffs against Kamaljit, she contends, go further than any already recognized duty of care. They ask the Court to find that Kamaljit’s obligations to Harvir be extended to the plaintiffs. This duty is not recognized in any prior jurisprudence and is not recognized in Canadian law.
[31] The defendant Kamaljit Singh submits that the answer to whether the case falls within a line of cases in which a duty of care has been previously recognized is ‘no’. The jurisprudence that is most analogous (Morrison) rejected the finding of a duty of care.
[32] The cases concerning a paternalistic relationship or supervision either require physical presence at the site of loss and/or would include Kamaljit and Harvir but not the plaintiffs. Accordingly, the plaintiffs seek to advance a novel duty. Once a novel duty is proposed then the Anns-Cooper Test must be considered.
[33] To consider the application of a novel duty-of-care, the Court should apply the modified “Anns-Cooper” Test. This test asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff.
[34] This test relies upon the “neighbour principle” which arose from the seminal case of Donoghue v Stephenson, 1932 536 (FOREP), [1932] AC 562 at 580, the original law of negligence case which concerned a decomposed snail in a bottle of ginger beer.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.
[35] In Rankin’s Garage at para. 21, the Supreme Court of Canada, citing the large body of Canadian jurisprudence adopting this legal test, confirmed that reasonable foreseeability of harm and proximity operate as limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered. There must also be proximity between the parties in addition to the foreseeability of harm: “The proximity analysis determines whether the parties are sufficiently ‘close and direct’ such that the defendant is under an obligation to be mindful of the plaintiff’s interests” (Rankin’s Garage at para. 23).
[36] The Supreme Court of Canada narrowed this test in Rankin’s Garage. It is too broad to simply ask whether the harm is “foreseeable physical injury.” The majority of the Supreme Court in Rankin (Karakatsanis J, McLachlin CJC, Abella, Moldaver, Wagner, Cote and Rowe JJ concurring) specifically rejected defining harm “simply as foreseeable physical injury”. This either expanded upon (perspective of the majority) or rejected (perspective of the dissent of Brown J, and Gascon J) the law to mean the actual circumstances of harm in the particular case must be considered: Rankin’s Garage at paras 23 and 28 ( majority) and 74 (dissent).
[37] This narrower test was applied in Rankin’s Garage when the Supreme Court refused to find a duty of care owed by an auto shop. This case involved two intoxicated youths looking to steal from unlocked cars. They found keys in an ashtray and elected to take a joy ride resulting in a collision. Lower Courts found the garage owner negligent for leaving the keys in the ashtray. The Supreme Court agreed that was negligent but ruled there was no duty to the youth. “To find a duty there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury – that the stolen vehicle could be operated unsafely.” The Court accepted that it was reasonably foreseeable that the car could have been stolen but not reasonably foreseeable that it would be operated dangerously and recklessly resulting in personal injury: Rankin’s Garage at para. 41.
[38] To find a duty there must be “a way that links the impugned act . . . to the harm suffered by the plaintiff. . .”: Rankin’s Garage at para. 25.
[39] In this case, the impugned act is an act or omission by Kamaljit concerning Harvir’s medical care and/or her transfer of Harvir to the school. The harm suffered was injury when Harvir escaped his school group and pushed the plaintiff Marie Boustany.
[40] The defendant Kamaljit Singh submits that it is not possible for Kamaljit to have reasonably foreseen that her care of Harvir would result in all the adults tasked with caring for Harvir at the time (the employees of the Halton District School Board and the lifeguards of the Corporation of the Town of Halton Hills) losing control and that Harvir would also then proceed to push Marie Boustany.
[41] There is no proximity between the actions of Kamaljit Singh and the plaintiffs in either time, geography, or relationship, she submits. At the time of any alleged negligent act Kamaljit could not have reasonably foreseen Harvir might harm either plaintiff.
[42] In Rankin’s Garage, comparison was made to cases involving “loaded firearms” which are “inherently dangerous” and must be stored safely. The Court distinguished motor vehicles as not being analogous to firearms. “Cars can be dangerous” but only in certain circumstances: Rankin’s Garage at para. 60.
[43] This defendant submits that the Court must conclude that human beings, under disability or not, are also not “inherently dangerous”. Harvir is not analogous to a firearm, she submits. He is a human being with autism. He is not a criminal. He was a student. There has been no judicial process finding Harvir to be a danger to society. Accordingly, he must be afforded the same presumptions of innocence as all citizens.
[44] This is a case where a grandmother dropped off her grandchild at school as usual.
[45] Harvir Singh is a human being suffering from a medical condition, she submits. He requires special care. It cannot be said that, even if that care was not rendered perfectly, that physical harm to the plaintiffs was the foreseeable result.
[46] This defendant submits that this case must fail at “Stage One” of the Anns-Cooper analysis because there was no proximity between Kamaljit and the plaintiffs and the alleged events at the public pool are not reasonably a foreseeable consequence of the actions or inactions of Kamaljit as it relates to Harvir’s care.
[47] Alternatively, the defendant Kamaljit Singh submits, public policy discourages caregivers being liable for the actions of their charges when the caregiver is not physically present. If the Court finds there is insufficient proximity to clear Stage One then it is not required to proceed to the second branch of the Anns test to determine whether there might exist policy considerations, which would negate a prima facie duty of care.
[48] This part of the analysis asks whether there are overriding public policy reasons to decline to find a duty of care. The burden for this part of the test rests with the defendant.
[49] The defendant Kamaljit Singh was the caregiver of a party under a disability.
[50] Kamaljit Singh was not Harvir’s original caregiver. She voluntarily assumed the role from her daughter in 2011 when her daughter was no longer able to care for her son due to an unexpected hospitalization.
[51] Extending Kamaljit Singh’s duty of care to the plaintiffs, she submits, would mean that a caregiver owes a duty to the public at large for the actions/activities of their dependant, even when they are not around. This would be a dangerous precedent, she asserts. It would allow liability for events well beyond the control of the caregiver. It would, effectively, create unlimited vicarious liability for a caregiver of a person under a disability.
[52] Finding a duty would be a disincentive for an involuntary/unexpected caregiver to accept the role.
[53] The defendant submits this is analogous to the “chilling effect” identified by Wilson J. in Morrison when she opined on additional public policy grounds to reject prescribing obligations upon children for the actions of their elderly parent.
[54] Instances of children with autism or other similar disabilities are increasing, the defendant submits.
[55] Similarly, as society ages, instances of adults with disabilities/dementia are increasing. The Court should not increase the already difficult burden being asked of potential caregivers by also attaching such broad risk of liability.
[56] Invariably, she asserts, if the burden is too great, there is a risk that family members will not voluntarily step-up to assume the role of caregiver when they are called to do so.
[57] This defendant acknowledges that there is an obligation by the caregiver. That obligation, however, is between the caregiver and the dependant (between Kamaljit and Harvir). Any legal recourse for any breach is between those parties. It is unfair and dangerous to impose any further burden, she submits.
[58] If the Court determines that there was no duty of care then the defendant Kamaljit Singh seeks to have the amendments added to the Statement of Claim in 2018 struck and the action against her dismissed.
[59] Rule 21.01(b) allows a Judge “to strike out a pleading on the ground that it discloses no reasonable cause of action…”
[60] The defendant Kamaljit Singh submits that, if she did not owe a duty to the plaintiffs at law, then the Amended Statement of Claim does not disclose a cause of action capable of success.
[61] This was the result in Boudreau v Bank of Montreal, 2012 ONSC 3965, aff’d 2013 ONCA 211, leave to appeal dismissed, 2013 72927 (SCC), where Lofchik J. concluded it was appropriate to scrutinize a newly asserted duty of care at the pleadings stage. The Court concluded there was insufficient proximity between the parties and struck out the Statement of Claim by an injured soccer player against the financial sponsors of the event.
Position of the Responding Party Plaintiffs
[62] The plaintiffs submit that the primary issue to be determined by this Court is whether it is plain, obvious and beyond doubt that the claim against the defendant, Kamaljit, is untenable at law and should be struck pursuant to Rule 21.01(1).
Rule 21.01(1) of the Rules of Civil Procedure (Rules) provides that a party may move before the judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence”
[63] The plaintiffs submit that in Ontario, case law has established a very high threshold as courts are reluctant to strike a claim or defence in its entirety pursuant to Rule 21.01 without hearing the matter.
[64] The Supreme Court of Canada in R v Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 21 clarified that the “motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed.”
[65] The Supreme Court of Canada in R v Imperial Tobacco Canada Ltd. at para. 21 indicated that on a motion to strike, “it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” With respect to negligence and the duty of care, the SCC emphasized that the “history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v Stevenson.”
[66] The moving party must demonstrate that it is plain, obvious and beyond doubt that the action as pleaded is deficient, discloses no reasonable cause of action, and is certain to fail. Demonstrating that a claim is not sustainable requires a pleadings analysis to determine why the claim is patently ridiculous or incapable of proof. Thus, the law imposes a “very low” threshold to state a claim. A “germ” or “scintilla” of a cause of action will suffice: Prokuron Sourcing Solutions Inc. v Sobeys Inc and Lexmark Canada Inc., 2019 ONSC 7403 at para 2.
[67] The Court of Appeal’s decision in Elipoulos Estate v Ontario, 2006 37121 (ON CA), [2006] OJ No. 4400 established a three-part test to determine whether a Rule 21.01(1) motion has merit:
it is plain, obvious, and beyond doubt that the plaintiff could not succeed
the claim must be read generously with allowance for inadequacies due to drafting deficiencies;
the claim should not be dismissed simply because it is novel.
[68] In Doyle Salewski Inc. v Lalonde, 2016 ONSC 5313 at para 47, the Court expanded on Elipoulos and adopted the position that it will not strike a claim where:
i) The facts in the pleading are to be taken as proven and true unless they are patently ridiculous or incapable of proof.
ii) It must be "plain and obvious" that the pleading is unfounded or contains no reasonable cause of action in order for the motion to succeed.
iii) The threshold for sustaining a pleading is not high — a "germ" or "scintilla" of a cause of action will be sufficient.
iv) The pleading will only be struck if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action.
v) No evidence is to be admitted on the motion.
vi) The pleading is to be read generously.
vii) The novelty of the claim does not prevent a plaintiff from proceeding with its case.
viii) The court's role at the motion is not to determine the strength of the case or the likelihood of success.
[69] The Supreme Court of Canada in Hunt v Carey Canada Inc., 1990 90 (SCC), [1990] 2 SCR 959 affirmed the “plain and obvious” test and held that it is “inappropriate to use the Rules” summary procedure to prevent a party from proceeding to trial on the grounds the action raises difficult questions.” Justice Wilson set out the rationale behind the test for striking out a claim:
…assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat":
[70] Thus, the Supreme Court in Hunt held that even if the plaintiff raises a “novel legal proposition” that should not prevent the plaintiff from proceeding with the action.
[71] In the Law Society of Upper Canada v Ernst & Young, 2003 14187, 174 OAC 49, 220 DLR (4th) at para. 50, the Court of Appeal held that the purpose of a Rule 21.01(1)(a) motion is not to enable a party to obtain the advisory opinion of the court as to the validity of the cause of action or defence when the facts are in dispute. Rather, the court affirmed that "[m]atters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings".
[72] In another decision, Matharu v Manheim Auctions (Matharu), 2017 ONSC 3459, at para. 24, the Court dismissed a Rule 21.01(1) motion to strike the claim against the defendant commercial garage for the negligence of a defendant adult who stole one of their vehicles and injured a third party because there were genuine issues for trial:
[73] Justice Emery in Matharu aptly summarized the principles of a dismissing a claim when using Rule 21.01:
Even if I am wrong in reading a reasonable cause of action into the allegations in the amended statement of claim pleaded…on the issue of reasonable foreseeability discussed in the Spagnolo case and any exception to that issue, I note that all of the decisions cited to me by the moving party are decisions or appeals from decisions made after a trial on the merits. In each case, the parties and the court had the benefit of the trial process. In those cases, the parties had made all amendments to the pleadings, received full disclosure from each other, and conducted examinations for discovery. The court heard the evidence of the parties and all witnesses to make its determination as to the reasonable foreseeability of the defendant in Manheim’s position. No authority has been given to me where a conclusive determination has been made that the plaintiffs have no reasonable cause of action as against a particular defendant in a car theft case at the pleading stage.
[74] The Plaintiffs submit that based on the principles and test with the respect to Rule 21.01(1) the impugned claims more than meet the minimal threshold set out by the Rules.
[75] The plaintiffs contend that parents, or persons standing in loco parentis, owe a duty of care to children and to third parties.
[76] In Chartier v Chartier, 1999 707 (SCC), [1999] 1 SCR 242 at para 39, the Supreme Court of Canada established the test for determine whether a person can stand in the place of a parent within the meaning of s. 2(1) of the Divorce Act. The Court set out a non-exhaustive list of factors that hinge on the nature of the relationship and intention of the parties. The Court held that the intention to stand in as a parent may be expressed formally and informally. Such factors include whether the person provides financially for the child, whether the person disciplines the child as a parent, whether the person represents to the child, the family or the world, explicitly or implicitly, that he or she is responsible as a parent to the child, and the nature of the child’s relationship with the absent biological parent. If several of these factors are established, the obligations of the ‘step-parent’ are the same as those relative to a child born of the marriage.
[77] Based on the factors set out in Chartier, the plaintiffs submit, Kamaljit stood ‘loco parentis’ for Harvir. She was the main caregiver of Harvir since 2011 when his mother was hospitalized and Kamaljit’s husband passed away. From 2011 until the date of the subject accident, Kamaljit was the main person responsible for Harvir’s personal care, transportation, discipline and medication. Lastly, Kamaljit also held out as the main point of contact for Harvir with the Halton District School Board and was recognized by the Board as his main caregiver.
[78] The law imposes a duty upon parents to supervise and control the activities of their children. Parents must also use reasonable care to prevent foreseeable damage to others. Much depends on the vulnerability of the child in question. For example, as the age of the child increases, the extent of the duty tends to diminish.
[79] Where it can be demonstrated that a child has a propensity to act destructively, then the duty to supervise is heightened. In particular, if the parent knows of a child’s frequent wrongdoing and does not intervene to solve the problem, the plaintiffs submit, the parent may be liable for the repeated misconduct.
[80] Determining whether a parent provided proper supervision and care speaks to the issue of standard of care, which is outside the scope of a Rule 21.01(1) motion. In Ross (Guardian ad litem of) v. Equinox Outdoor Learning Centre (Ross), 2014 YKSC 15 at para. 23, the Court distinguished between the duty of care and the standard of care for parental supervision. The Court determined that questions involving a child’s propensity for violence, whether the parent knew of the child’s propensity for violence, and whether the parent took reasonable steps to prevent a child’s dangerous activities are matters to be determined at trial.
[81] The plaintiffs contend that Kamaljit Singh had a heightened duty of care owing to Harvir’s conditions. The defendant suggests, without citing any authority the plaintiffs contend, that because instances of autism or similar disabilities are increasing, imposing a duty of care on caregivers would become burdensome and act as a deterrent.
[82] In the subject case, as the loco parentis and main caregiver of Harvir, Kamaljit not only had a duty to supervise and control the activities of Harvir, but was also responsible for ensuring that she provided reasonable care to prevent foreseeable damage to others. Further, because Harvir suffers from severe non-verbal autism, Kamaljit’s duty of care was heightened as she had a responsibility to be cognisant of any erratic or dangerous behaviours Harvir to himself and the public. As the main caregiver responsible for administering his medication, Kamaljit had a duty to ensure that the proper dosages of medication, as recommended by his treating medical professionals, was being administered to Harvir.
[83] In comparison to the decision in Ross, the plaintiff submits, the following questions speak to Kamaljit’s standard of care and require further investigation. These are material facts subject to dispute and add credence to the fact that these are genuine issues for trial which cannot be struck out at the interlocutory stage:
i) whether Kamaljit adequately supervised Harvir;
ii) the nature of the prescribed medication;
iii) the impact of decreasing the dosage; or
iv) whether Kamaljit sufficiently advised Halton District School Board of Harvir’s behaviour and correct medication dosages.
[84] The plaintiff submits that jurisprudence has left open the possibility that parents may owe a duty of care to third parties. The paternalistic relationship of supervision and control rests on the special vulnerability of the child. The SCC is clear that in certain circumstances a parent may owe a duty of care to injured third parties involving accidents that occur outside of their supervision. In the seminal case, Childs v Desormeaux, 2006 SCC 19, [2006] 1 SCR 643 at paras. 35-37, the Supreme Court of Canada held that a “positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.” The SCC recognized three situations where the courts have imposed a positive duty to act with respect to third parties:
i) A defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created or controls.
ii) The paternalistic relationships of supervision and control, such as those of parent-child or teacher-student. The duty rests on the special vulnerability of the plaintiffs and the formal position of power of the defendants.
iii) For defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large.
[85] In Childs, the Supreme Court of Canada indicated that common to all three situations is the “defendant’s material implication in the creation of risk or his or her control of a risk to which others have been invited.” For example, the Supreme Court noted that an operator of a dangerous sporting competition creates or enhances the risk by inviting and enabling people to participate in a risky activity. In another example, a duty of care to an injured third party might appear in the case of a parent or teacher who has assumed control of a vulnerable person. If the vulnerability of the person and his subjection to the control of the defendant creates a situation where the latter has an enhanced responsibility to safeguard against risk, the more likely that a duty of care arises.
[86] In Childs, the Supreme Court of Canada concluded that social hosts do not owe a prima facie duty of care to third parties in the context of a social gathering where alcohol is served to consenting adults. However, the Supreme Court also stated that “it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of risk sufficient to give rise to a prime facie duty of care to third parties.” As such, while the Supreme Court did not establish a new duty of care for social hosts, it left open the possibility that in certain circumstances a duty of care to injured third parties may arise.
[87] The Supreme Court of Canada decision in Rankin’s Garage, the plaintiff contends, supports the proposition that a parent may owe a duty of care to third parties injured by a minor even when the parent is not physically present. The Supreme Court affirmed the trial judge’s decision, which concluded that the mother of impaired and unlicensed minors who stole a vehicle from a commercial garage and injured a third party was liable for inadequately supervising the defendant minors, her son and his friend. The mother’s negligence arose out of providing alcohol to minors, failing to supervise minors, and failing to secure personal alcohol. Thus, despite her not being physically present during the accident and her son being 16 years old, her lack of proper supervision did not preclude the Court from finding her liable for the injuries of a third party.
[88] Similarly, despite not being physically present, a parent may still owe a duty of care for failing to inform another supervising body responsible for the child’s care and behaviour. In Ross, a child had sustained injuries after startling horses during an activity by screaming, causing her to fall off the horse she was riding. The defendant outdoor learning centre responsible for her care argued that the parents of the child were liable for failing to inform them that the child had a propensity for screaming.
[89] Justice Gower at paras. 13 and 22 ruled against striking the claim of the parents. He found that it was not “absolutely beyond doubt” that the third-party claim was certain to fail. The parents’ lack of transparency with the outdoor learning center and questions of whether the parents should have informed the outdoor learning center of the child’s propensity for screaming were genuine issues for trial.
[90] Further, Justice Gower distinguished between the parents’ standard of care and duty of care. Although the defendants correctly stated that a parental duty of care does not require a “standard of perfection”, Justice Gower rejected this argument because it spoke to the standard of care issue, which is a matter to be determined at trial.
[91] As such, Rankin’s Garage and Ross confirm that there are circumstances in which parents or caregivers have a duty to supervise and control the activities of their children even when not physically present. The supervision and care of a parent may also extend even when their child is under another supervising body. Questions with respect to whether a parent could have provided greater supervision or care speaks to the issue of standard of care rather than the issue of duty of care, which again are matters to be determined at trial.
[92] In Childs, the Supreme Court of Canada recognized that a paternalistic relationship of supervision or control, such as a parent-child, where there is relationship of vulnerability, can give rise to a positive duty of care that involves third parties. The Supreme Court also recognized that a defendant may owe a duty of care where he or she attracts and invites third parties to an inherent and obvious risk that he or she has created or controls. In the subject case, Kamaljit and Harvir had a special relationship with a vulnerability aspect. Harvir suffers from low functioning autism at the severe end of the spectrum. Accordingly, he lacks the capacity to function without constant assistance and supervision. As such, Kamaljit was responsible for ensuring that Harvir took the proper dosages of prescribed medication. Evidence that Kamaljit may have deliberately or negligently reduced the dosage of Harvir’s medication contrary to the doctor’s prescription indicates that Kamaljit may have materially enhanced or created a risk to which others were invited.
[93] The plaintiffs acknowledge that Harvir was under supervision of the Halton District School Board during the time of the subject incident. However, they submit, Kamaljit had a duty of care to ensure that Harvir did not pose a risk to the public. The subject case is similar to the Rankin’s Garage decision where the Supreme Court of Canada affirmed that the defendant parent was liable for an injured third party as a result of the conduct of her son and his friend despite not being physically present when the accident occurred. Likewise, Kamaljit was the primary contact for Harvir with the Halton District School Board and was its primary source for reporting any behavioural issues or changes that Harvir was experiencing at home. Further, Kamaljit was responsible for administering Harvir with proper dosages of medication recommended by medical professionals and for informing the Halton District School Board of any medication changes.
[94] If Kamaljit chose to reduce the prescribed dosage of medication, the plaintiffs submit, she also had a duty to inform the Halton District School Board of that change, especially in a case where she knew of his participation in a public swimming recreational facility. Instead, Kamaljit allegedly informed the Halton District School Board immediately following the subject incident that she recently decreased the dosage of Harvir’s medication despite the physician’s recommendation.
Analysis
[95] A successful action in negligence requires that the plaintiff demonstrate: (1) that the defendant owed them a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 at para. 3.
[96] In assessing the defendant Kamaljit Singh’s assertion that she owed no duty of care to the plaintiff Marie Boustany, I must have regard to the guidance of the Supreme Court of Canada expressed by Karakatsanis J. at paras. 16-26 in Rankin’s Garage. As the Supreme Court recognized, the modern law of negligence remains based on the foundations set out in Donoghue v. Stephenson. It is still the case today that “[t]he law takes no cognizance of carelessness in the abstract”: Donoghue, at p. 618, per Lord Macmillan. Unless a duty of care is found, no liability will follow. Similarly, the neighbour principle continues to animate the Anns-Cooper test that Canadian courts use to determine whether a duty of care exists.
[97] It is not necessary to conduct a full Anns-Cooperanalysis if a previous case has already established that the duty of care in question (or an analogous duty) exists. It is not clear in the present case that a previous case has definitively established the duty of care in question.
[98] If it is necessary to determine whether a novel duty exists, the first stage of the Anns-Cooper test asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. Once foreseeability and proximity are made out, a prima facie duty of care is established.
[99] Whether or not a duty of care exists is a question of law and I proceed on that basis.
[100] The plaintiff bears the legal burden of establishing a cause of action, and thus the existence of a prima facie duty of care. In order to meet this burden, the plaintiff must provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant’s conduct in the context of a proximate relationship. In the absence of such evidence, the claim may fail.
[101] Once the plaintiff has demonstrated that a prima facie duty of care exists, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized.
[102] Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered.
[103] In addition to foreseeability of harm, proximity between the parties is also required. The proximity analysis determines whether the parties are sufficiently “close and direct” such that the defendant is under an obligation to be mindful of the plaintiff’s interests. The proximity inquiry considers the “expectations, representations, reliance, and the property or other interests involved” as between the parties. In cases of personal injury, when there is no relationship between the parties, proximity will often (though not always) be established solely on the basis of reasonable foreseeability.
[104] When determining whether reasonable foreseeability is established, the Supreme Court of Canada declared, the proper question to ask is whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. This approach ensures that the inquiry considers both the defendant who committed the act as well as the plaintiff, whose harm allegedly makes the act wrongful.
[105] The Supreme Court of Canada highlighted the importance of framing the question of whether harm is foreseeable with sufficient analytical rigour to connect the failure to take care to the type of harm caused to persons in the plaintiff’s situation.
[106] The foreseeability question must therefore be framed in a way that links the impugned act (in this case, the failure to properly medicate Harvir and to advise the school authorities of her departure from the levels of medication prescribed by Harvir’s physician) to the harm suffered by the plaintiff (physical injury).
[107] The proper question to be asked in this context is whether the type of harm suffered — personal injury — was reasonably foreseeable to someone in the position of the defendant when considering the potential consequences of failing to abide by the levels of medication prescribed by Harvir’s physician, and of advising the school authorities of her unilateral departure from that.
[108] In Childs, the Supreme Court of Canada recognized that a paternalistic relationship of supervision or control, such as a parent-child, where there is relationship of vulnerability, can give rise to a positive duty of care that involves third parties. The Supreme Court also recognized that a defendant may owe a duty of care where he or she attracts and invites third parties to an inherent and obvious risk that he or she has created or controls. In the present case, Kamaljit and Harvir had a special relationship with a vulnerability aspect. Harvir suffers from low functioning autism at the severe end of the spectrum. Accordingly, he lacks the capacity to function without constant assistance and supervision. As such, Kamaljit was responsible for ensuring that Harvir took the proper dosages of prescribed medication. Evidence that Kamaljit may have deliberately or negligently reduced the dosage of Harvir’s medication contrary to the doctor’s prescription indicates that Kamaljit may have materially enhanced or created a risk to which others were invited.
[109] The plaintiffs acknowledge that Harvir was under supervision of the Halton District School Board during the time of the subject incident. However, I concur with the plaintiff’s assertion that Kamaljit had a duty of care to ensure that Harvir did not pose a risk to the public. The subject case is similar to the Rankin’s Garage decision where the Supreme Court of Canada affirmed that the defendant parent was liable for an injured third party as a result of the conduct of her son and his friend despite not being physically present when the accident occurred. Likewise, Kamaljit was the primary contact for Harvir with the Halton District School Board and was its primary source for reporting any behavioural issues or changes that Harvir was experiencing at home. Absent her providing this information, it was not possible for the school authorities of the Halton District School Board to become aware of the issues or the full extent of the potential risk. Further, Kamaljit was responsible for administering Harvir with proper dosages of medication recommended by medical professionals and for informing the Halton District School Board of any medication changes.
[110] If Kamaljit chose to reduce the prescribed dosage of medication, she also had a duty to inform the Halton District School Board of that change, especially in a case where she knew of his participation in a public swimming recreational facility. Instead, Kamaljit allegedly informed the Halton District School Board immediately following the subject incident that she recently decreased the dosage of Harvir’s medication despite the physician’s recommendation.
[111] As discussed above, the foreseeability question must therefore be framed in a way that links the impugned act (the failure to properly medicate Harvir and to advise the school authorities of her departure from the levels of medication prescribed by Harvir’s physician) to the harm suffered by the plaintiff (physical injury).
[112] Kamaljit Singh knew that Harvir was accompanying his schoolmates on an outing to a public swimming pool where other members of the public would present. It was eminently foreseeable, given his recent history of behaviour, and her decision not to medicate him in the prescribed dosages, that this might pose a challenge to the school authorities conducting the outing to the swimming pool, and that Harvir would encounter members of the public in that environment.
[113] The proper question to be asked in this context is whether the type of harm suffered — personal injury — was reasonably foreseeable to someone in the position of the defendant when considering the potential consequences of failing to abide by the levels of medication prescribed by Harvir’s physician, and of advising the school authorities of her unilateral departure from that.
[114] I would answer that question in the affirmative. The argument that Kamaljit ought to have foreseen that there was some risk to other persons whom Harvir might encounter in the public environment of a swimming pool, if he was not properly medicated in accordance with his physician’s prescriptions, has merit. There was no question that Harvir would come into contact with members of the public in that environment. Public pools can be crowded. School outings are exciting but also potentially disruptive occasions, where misbehaviour by students is not uncommon. There is an enhanced level of risk (slipping, falling, coming into physical contact with other persons, drowning) present in any swimming pool environment, for a variety of reasons. All of this should have been apparent to any parent, or person acting in loco parentis.
[115] The defendant Kamaljit Singh ought reasonably to have contemplated the type of harm the plaintiff suffered.
[116] There is an apparent connection of the failure to take care to the type of harm caused to persons in the plaintiff’s situation. It was evident that the class of persons into which the plaintiff Marie Boustany fell (that is, members of the public attending at a public swimming pool) would be present in that environment.
[117] The first stage of the Anns-Cooper test, whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff, is met. I find that, on the facts of this case as reflected in the pleadings and the agreed statement of facts, foreseeability and proximity are made out, and a prima facie duty of care is established.
[118] As the plaintiff has demonstrated that a prima facie duty of care exists, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized.
[119] I do not accept the assertion advanced by the defendant in this case to the effect that extending Kamaljit Singh’s duty of care to the plaintiffs would mean that a caregiver owes a duty to the public at large for the actions/activities of their dependant even when they are not around, and that this would be a dangerous precedent, allowing liability for events well beyond their control and effectively creating unlimited vicarious liability for a caregiver of a person under a disability. Attendance at a public swimming pool on a school outing is a particular factual context. Each case will turn on its facts, and the facts of the present case do not lend themselves to extrapolation on such an indiscriminate and unbounded basis as asserted by the defendant Kamaljit Singh. The defendant in this instance has not established that there are residual policy reasons why this duty should not be recognized.
[120] The moving party acknowledged in her factum that if the answer to the question of law brought under Rule 21.01(1)(a) is not in her favour, then the second part of the motion will fail.
[121] For a Rule 21.01(1) motion to succeed in striking out a claim it needs to be plain, obvious and beyond doubt that a claim is likely to fail.
[122] The defendant’s submission has not presented applicable analogous case law which clearly demonstrates that a defendant caregiver or parent responsible for a vulnerable child does not owe a duty of care for the child’s negligent conduct towards a third party.
[123] On its facts, this case is clearly distinguishable from Boudreau.
[124] The Supreme Court of Canada decisions in Rankin’s Garage and Childs support the proposition that parents or caregivers may owe a duty of care to injured third parties for the negligent conduct of a vulnerable child, in appropriate circumstances.
[125] In the present case, Kamaljit’s conduct and supervision of Harvir as his loco parentis and main caregiver raise genuine issues for trial that require further investigation.
[126] It is not plain, obvious and beyond doubt that the claim against Kamaljit is certain to fail pursuant to Rule 21.01 of the Rules of Civil Procedure. Accordingly, the motion to strike should be dismissed.
Order
[127] The defendant Kamaljit Singh’s motion to dismiss the plaintiffs’ claim against her is dismissed.
Costs
[128] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant. The plaintiffs may have 14 days from the release of this decision to provide their submissions, with a copy to the defendant Kamaljit Singh; the defendant Kamaljit Singh a further 14 days to respond; and the plaintiffs a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timeframes after the plaintiff’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson J.
Date: April 27, 2021