Learning Task 1: Law Assignment

Question 2

Amelia Anastas, Kira Gaw, Susan Smith, Tara Sellars, and Tooba Shaheen

Werklund School of Education, University of Calgary

EDUC 525: Law and Ethics in Education

Rhiannon Jones

October 13th, 2021

This action arises out of an incident that occurred on the playground of the Western

Canada Elementary School in Cowtown, Alberta. The plaintiff, Dakota, was a student at the

school and was in grade two at the time. She was injured when she was pushed from behind by a

fellow grade two student, Ellen, and fell from the top of a slide striking her head on the ground.

She was playing “grounders” with 15 other students during recess when the injury occurred. The

teacher appointed to supervise the playground that day during recess was grade three teacher,

Ms. Morgan.

The plaintiff’s parents are suing the Cowtown Board of Education and supervising

teacher Ms. Morgan for Dakota’s injuries.

Is Ms. Morgan Liable for Negligence?

It is understood that educators owe a duty of care to the students under their supervision

(Education Act, 2012). Thus, the matter in question is determining whether the educator fulfilled

or breached their duties, in acting similar to that of a careful and prudent parent (Myers v. Peel

County Board of Education, 1981). Furthermore, in order to sufficiently prove negligence, the

plaintiff must establish that they suffered “proximate damages” (Jones, 2021, p. 8). Ms. Morgan

was knowledgeable and capable of foreseeing the potential for injuries, specifically head injuries,

while playing on playground structures, especially when students had their eyes closed, per the

rules of ‘grounders’; therefore, the issue remains undisputed. Moreover, the plaintiff must prove

that causation of the damages stemmed from Ms. Morgan’s breach of duty, to prove negligence

(Jones, 2021, p. 9).

Educators are expected to and must maintain the “order and discipline among students”

while carrying out their supervision duties (Education Act, 2012, p. 339 s. 196(1)). The issue to
be resolved is whether Ms. Morgan was either sufficiently satisfied or breached her duty of care.

In compliance with her duty of care to enforce safety procedures, similar to that of a careful and

prudent parent, Ms. Morgan was reported to have been “attentively” watching the playground at

the time of the accident. It is unknown whether Ms. Morgan was specifically watching the

plaintiff, Dakota, or focusing her attention on another group of students at the time of the

incident. Regardless, according to the Deo v, Vancouver School District No. 39 case, “failure to

take note of potentially risky actions that might have occurred in as little as one minute” does not

constitute a breach of duty of care (2018, para. 147). Although Ms. Morgan was unable to react

on time to prevent the plaintiffs’ accident from occurring, Ms. Morgan provided the plaintiff with

“appropriate emergency medical care” which included an ambulance ride to the hospital, where

she was promptly treated for a concussion (Jones, 2021). These actions were in accordance with

the Western Canada Elementary School and Cowtown Board of Education policies.

Another argument can be made that if Ms. Morgan knew about Dakota’s and Ellen’s

previous interactions, she could have watched the two more attentively during the game of

grounders. However, one can also argue that the bullying behaviours between the plaintiff,

Dakota, and Ellen were almost entirely verbal, except for one physical altercation, in which

Dakota obtained scratches after ignoring Ellen’s verbal remarks. Thus, it can be argued that the

risk was reasonably unforeseeable. In terms of Ms. Morgan’s enforcement of the reasonable

safety procedures assumed by a reasonable and prudent parent, her actions could be viewed as

insufficient on the basis that she had not proactively warned students of the dangers and/or

possible risks associated with grounders, as seen two months prior at a neighbouring school

when one student was gravely injured while having their eyes closed. Based on arguments made

in MacCabe v Westlock Roman Catholic Separate School District No 110 case, one can argue
that the activities leading to the plaintiffs’ injuries were “not explicitly authorized '' nor were they

forbidden by Ms. Morgan's instructions, or lack thereof (2001, para. 30). Therefore, as argued in

MacCabe v Westlock Roman Catholic Separate School District No 110 case, “merely “not

encouraging” [students from playing dangerous activities] is insufficient to meet the standard of

care” (Jones, 2021, p. 13).

Conversely, according to Deo v Vancouver School District No 39 it is not considered a

breach of the standard of care expected of supervisors to remove “all potential risks on the

playground” (2018, para. 115). It would be unfeasible and would result in an “ever-expanding

list of rules” which would be onerous and “impossible for students to remember” as well as

difficult for supervisors, like Ms. Morgan, to implement and enforce (Deo v Vancouver School

District No 39, 2018, para 115). Especially when the activity in question is using playground

equipment, it would be “impractical . . . to expand instructions to include every kind of injury

that could arise from misuse of non-hazardous items or objects on the school grounds” (Deo v

Vancouver School District No 39, 2018, para 117). Therefore, we conclude that Ms. Morgan did

not breach her duty of care.

If in the unlikely case, Ms. Morgan is found to have breached her duties, the plaintiffs

must establish that the injuries would not have been inflicted if it were not for the actions or

inactions of the supervisor (Jones, 2021, p. 7). Both Deborah Tilli v Hamilton-Wentworth

Catholic District School Board and Patrick v St Clair Catholic District School Board cases

consider the sufficiency of supervision, and in both cases, it was determined that the plaintiff’s

injuries were acquired in a “sudden and unexpected” series of events, and thus, could not have

been reasonably foreseen, and prevented by supervisors (2013, para, 5). With this in mind, we

are inclined to believe that, given how quickly the plaintiff’s accident occurred, it would have
happened, regardless of any breaches. Therefore, it can be concluded that Ms. Morgan’s actions

did not cause the plaintiff's injury, and thus, she was not negligent.

Is the Cowtown Board of Education Liable for Negligence?

Using the Occupier’s Liability Act which states that an “occupier” of the premises owes a

duty of care to every visitor and to see that every visitor will be reasonably safe in using the

premises (Jones, 2021, p. 13). We will be determining whether the Cowtown Board of Education

is liable for its independent negligence or not.

The Act applies to:

(a) The condition of the premises,

(b) Activities on the premises, and

(c) The conduct of third parties on the premises (Jones, 2021, p. 14).

The Cowtown Board of Education as an occupier of the premises owes a duty to take

proper care to ensure the reasonable safety of students at Western Canada Elementary School

when the students are using the playground during recess. Along with that, since the occupier is

the school board and the premises, in this case, are the school grounds, it is appropriate to

consider the careful and prudent parent' standard discussed in cases such as Deo v, Vancouver

School District No. 39 when determining what is“reasonably safe in using the premises” (2018,

para. 110). To determine if CBE breached this duty of care, we will first be discussing the

condition of the premises, which was the slide. Since no previous cases involving a student

falling from the slide are known, it is assumed that this is the first incident and there was no

foreseeable risk. Additionally, we do believe that the slide itself does not inherently pose a risk,

rather the risk lies in the way students interact with the slide (Deo v, Vancouver School District
No. 39, 2015, para 106). From which we can conclude that the premise (the slide) was not

dangerous.

Secondly, we will discuss CBE’s supervision policies being adequate to prevent

foreseeable harm. The CBE supervision policy states that “during recess, lunch hour, and before

and after class, one teacher must directly supervise the playground area at all times” (Jones,

2021, p. 6). Here an argument against the school board can be made that additional supervision

could have prevented the incident by intervening before Dakota the plaintiff was pushed from the

slide by Ellen. However, since Ms. Morgan observed the incident and was within shouting

distance to the children it is reasonable to assume that the outcome would have been the same

even with additional supervisors present. One reason being, because the incident occurred almost

instantaneously any additional supervisor, no matter how close they were to the slide, would not

have been able to prevent the student from pushing the plaintiff (Raza, 2021). As discussed in the

Hamilton v School District No 37 case, the common law prudent parent standard expects

supervisors to meet an expectation of “reasonableness, not perfection” (2010, para. 61). For

example, any reasonable parent would have closely watched the game unfold, intervene if

necessary and apply proper medical attention when needed, this is exactly what happened in this

case with Dakota the plaintiff. Along with that, at the beginning of each school year, the teacher

educates students on playing safely, as she/he reviews the student handbook, which is similar to

how parents discuss playing safely with their children throughout their lives (Jones, 2012).

Lastly, we will discuss whether or not CBE was negligent in allowing students to play

the game Grounders in the first place. Especially when a student two months before this incident

was “catastrophically injured” while playing Grounders in Oilertown (Jones, 2021, p. 5). Here an

argument against the school board can be made that, since they were well aware of the injury that
occurred to a student in another school while playing Grounders, the school should have banned

Grounders. However, an argument can also be made that if a single previous occurrence of injury

is a strong enough case/reason to prevent the playing of the most popular recess game altogether.

All the above arguments led us to determine that the Cowtown Board of Education did

not breach their duty of care in this case, and therefore is not liable in negligence.

Is the Cowtown Board of Education Vicariously Liable for Ms. Morgan in Negligence?

Since Ms. Morgan was carrying out activities related to her employment with the

Cowtown Board of Education, it is established that the CBE could be held vicariously liable for

damages if Ms. Morgan was found liable. As Rhiannon Jones states “a school board is

vicariously liable for a teacher’s torts if the tort was “sufficiently connected” to the teacher’s

employment with the school board” (2021, p. 11). Therefore, since Ms. Morgan was following

the school board’s policies for bullying and supervision, the school can be held vicariously liable

if Ms. Morgan is found liable in negligence. Along with that as stated in Doe v Vancouver School

District No 39 case, “a school board owes a duty of care to students who are on school grounds

during the school day” (2018, para. 120). Therefore, we are positive that the CBE owes a duty of

care to the plaintiff. At the same time, we also believe that the outcome of the case would be that

Ms. Morgan is not found to be liable for negligence.

Is Dakota Contributorily Negligent?

The relevant portions of the Contributory Negligence Act, R.S.A. 2000 c C-27, state

“nothing in this section operates to render a person liable for damage or loss to which the

person’s fault has not contributed” (2002, para. 2).

The act also states, in every action:

a. the amount of damage or loss,

c. the degrees of fault,

are questions of fact (Contributory Negligence Act, 2002, para. 3)

Therefore, “this Act applies if the damage is caused or contributed to by the act or

omission of a person, whether or not another person had the opportunity of avoiding the

consequences of that act or omission and failed to do so” (Contributory Negligence Act, 2002,

para. 4).

In determining whether the Contributory Negligence Act (2002) applies, first, an analysis

must be done to determine if Dakota’s injuries were caused by her actions. In the MacCabe v

Westlock Roman Catholic Separate School district No 110 case, the court “asked what a child of

age, intelligence, experience, general knowledge, and alertness could be reasonably expected to

do and foresee under those particular circumstances” (Jones, 2021, p. 21). To assess Dakota’s

contribution to her accident, the analysis begins with the evidence about Dakota herself. Dakota

is a grade two student, who claims to know the playground very well and felt confident

navigating it with her eyes closed. Next, the analysis is to determine if Dakota could have

reasonably foreseen that she would be hurt, or taken steps to avoid possible harm. With her

knowledge of the playground, when Dakota was standing at the top of the slide, she would have

known that she was standing eight feet above the ground without protection. It is foreseeable to a

reasonable person that a fall from that height could cause injury. The “Grounders” game was a

popular game played by the students on the playground. During the game, if a student is “it”

their goal is to tag other students, with all other students trying to avoid being touched by the

person who is “it.” Therefore, Dakota would not foresee being either touched or pushed, by
another student. In this situation, Dakota could not have foreseen being pushed with such force

that would allow her to fall off the slide, and thus not have foreseen her injury.

Finally, we will analyze Dakota’s contributory negligence. In both MacCabe v. Westlock

Roman Catholic Separate School District No 110, and Myers v. Peel County Board of Education

cases, students were found to be respectively at 25% and 20% contributory negligence due to an

awareness of the dangerous nature of the activities being carried out. From which we argue that

in this particular case of playground activities, there are no inherently overtly dangerous risks

associated with activities taking place. Along with that, in the Deo v, Vancouver School District

No. 39 case, contributory negligence was not considered on the part of the student due to the

sheer likelihood of the possibility of injury in regular playground activities as well as the young

age of the students. Additionally, as displayed in Patrick v. St. Clair Catholic District School

Board case an injury occurred as the result of the actions of another student. In that case, it was

argued by 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”

(2013, para. 5). Based on the arguments made in the above cases, we conclude that no

contributory negligence should be assigned to Dakota, the plaintiff.

Conclusion

If the case were to proceed to trial, based on the reasons stated above, we believe the

court would rule that the Cowtown Board of Education and the supervising teacher, Ms. Morgan

are not liable in negligence for Dakota’s, the plaintiff’s, injuries. Along with the plaintiff,

Dakota, will also not be found to be contributorily negligent.

Contributory Negligence Act, RSA 2000, c C-27, CanLII (2002).

https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-c-27/latest/rsa-2000-c-c-27.html

Deborah Tilli v Hamilton-Wentworth Catholic District School Board, CanLII (ONSC 1783)

(2019). https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1783/2019onsc1783.html

Deo v Vancouver School District No 39, CanLII (BCSC 133) (2018).

https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc133/2018bcsc133.html

Education Act, SA, c E-0.3 CanLII (2012).

https://www.canlii.org/en/ab/laws/stat/sa-2012-c-e-0.3/latest/sa-2012-c-e-0.3.html?search

UrlHash=AAAAAQANZWR1Y2F0aW9uIGFjdAAAAAAB&resultIndex=1

Hamilton v School District No 37, CanLII (BCSC 712) (2010).

https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc712/2010bcsc712.html

Jones, R. (2021, September 19). 3A - Educators’ negligence and liability [PowerPoint].

University of Calgary D2L site.

https://d2l.ucalgary.ca/d2l/le/content/400446/viewContent/4894985/View

Jones, R. (2021, September 19). 3B - Educators negligence and liability [PowerPoint].

University of Calgary D2L site.

https://d2l.ucalgary.ca/d2l/le/content/400446/viewContent/4894984/View

Jones, R. (2021, September 10). Learning task 1. University of Calgary D2L site.

https://d2l.ucalgary.ca/d2l/le/content/400446/viewContent/4917449/View

MacCabe v Westlock Roman Catholic Separate School District No 110, CanLII (ABCA 257).

(2001). https://www.canlii.org/en/ab/abca/doc/2001/2001abca257/2001abca257.html
Myers v. Peel County Board of Education, 1981 CanLII 27, Supreme Court of Canada. (1981).

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2521/index.do

Patrick v St Clair Catholic District School Board, CanLII (ONSC 402) (2013).

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4025/2013onsc4025.html

Raza, K. (2021, October 7). Tutorial 2: Group L - Shared screen with speaker view [Zoom

Recording].

https://ucalgary.zoom.us/rec/play/-uqcjJFuKrtts3Q2YpNTQnbaa1EtcT0lc1QwBYpgr9_J

VJmAPu9AzeQF87WMC4VDFIt0ywmHO0SwLixZ._M3QNDQbv0XI0G5B?continue

Mode=true&_x_zm_rtaid=r46s1aOYST6-6AnJHxNLOQ.1633924911429.6f498e25238b

f8800f6d84b97d37de1a&_x_zm_rhtaid=872