


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 judges 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 schools 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 appellants 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
    judges 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 judges 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 schools 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 judges 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 schools policy against rollerblades before the incident occurred demonstrated
    a breach of the schools duty of care to the appellant.

[8]

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

[9]

The trial judges 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 judges 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.


