Kennedy et al. v. Board of Education of Waterloo County, (1999) 122 O.A.C. 122 (CA)

• Judge: Morden, A.C.J.O., Catzman and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 21, 1999
• Jurisdiction: Ontario
• Citations: (1999), 122 O.A.C. 122 (CA)

Kennedy v. Waterloo School Bd. (1999), 122 O.A.C. 122 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. JN.069

Gregory Kennedy, Cecil Kennedy, Shirley Kennedy, Rhonda Nogueira and Heather Dowling (plaintiffs/appellants) v. The Waterloo County Board of Education (defendant/respondent)

(C26045)

Indexed As: Kennedy et al. v. Board of Education of Waterloo County

Ontario Court of Appeal

Morden, A.C.J.O., Catzman and Feldman, JJ.A.

June 21, 1999.

Summary:

An 18 year old student sustained cata-strop­hic injuries when he lost control of his motorcycle on the school driveway and hit his head on a bollard situated on the school property. The student sued the School Board for damages.

The Ontario Court (General Division) held that the accident was caused by the student's negligence. The Board did not breach its duty to the student in not removing the bollards. The student appealed, arguing that the Board breach its duty of care.

The Ontario Court of Appeal allowed the appeal, holding that the Board breached its statutory duty of care under the Occupiers' Liability Act. The court apportioned fault 25 percent to the Board and 75 percent to the student.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclu­sions - Policies or "policy" decisions - [See both Torts - Topic 49.30 ].

Education - Topic 702.1

Education authorities - School commis­sions or boards - General - Actions against - [See both Torts - Topic 49.30 , Torts - Topic 6601 and Torts - Topic 9163 ].

Education - Topic 730

Education authorities - School commis­sions or boards - Duties respecting students - Safety precautions - [See both Torts - Topic 49.30 , Torts - Topic 6601 and Torts - Topic 9163 ].

Torts - Topic 49.30

Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - An 18 year old student sustained catastrophic injuries when he lost control of his motorcycle going out the school driveway and hit his head on a bollard situated on school prop­erty - The Board had removed the chains between the bollards, but did not remove the bollards - The Ontario Court (General Division) held that the Board did not breach its duty of care because, inter alia, it made a policy decision - The Ontario Court of Appeal allowed the appeal - The Board had a statutory duty and standard of care pursuant to the Occupiers' Liability Act - The Board could not make a policy decision to absolve itself from or reduce its statutory obligation - The Board breached its statutory duty in not removing the bollards when the chains were removed - See paragraphs 16 to 32.

Torts - Topic 49.30

Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - An 18 year old student sustained catastrophic injuries when he lost control of his motorcycle going out the school driveway and hit his head on a bollard situated on school prop­erty - The Ontario Court (General Divi­sion) held that the Board did not breach its duty of care because, inter alia, it made a policy decision - The Ontario Court of Appeal allowed the appeal - In determining whether the Board breached its prescribed standard of care under the Occupiers' Liability Act, the court must consider "all the circumstances of the case" - In the case of a government authority such circum­stances could include its financial resources - See paragraph 30.

Torts - Topic 3503

Occupiers' liability or negligence for dan­gerous premises - General principles - Duty of occupier - General - [See Torts - Topic 6601 ].

Torts - Topic 6601

Defences - Contributory negligence - Gen­eral - What constitutes contributory negli­gence - An 18 year old student sustained catastrophic injuries when he lost control of his motorcycle going out the school driveway and hit his head on a bollard situated on school property - The Board had removed the chains between the bol­lards, but did not remove the bollards - The Ontario Court (General Division) held that the Board did not breach its duty of care because, inter alia, it made a policy decision - The Ontario Court of Appeal allowed the appeal and found the Board 25% responsible for the student's injuries -The Board breached its statutory duty of care to the student pursuant to the Occupi­ers' Liability Act - Where the trial judge did not address contributory negligence and apportionment of damages, the Court of Appeal could do so - See paragraphs 100 to 103.

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials - Author­ities or boards - Education authorities - A student sustained catastrophic injuries when he lost control of his motorcycle on the school driveway and hit his head on a bollard situated on school property - The Board had removed the chains between the bollards, but did not remove the bollards - The Ontario Court (General Division) held that the Board did not breach its duty of care - The Ontario Court of Appeal allowed the appeal - The Board failed to consider and apply the statutory duty of care pursuant to s. 3(1) of the Occupiers' Liability Act - The Board breached its statutory duty of care to the student to make the school premises reasonably safe by failing to remove the bollards when it removed the chains between the bollards pursuant to s. 3(1) of the Act - See para­graphs 33 to 103.

Cases Noticed:

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 16].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 112 D.L.R.(4th) 1; 19 C.C.L.T.(2d) 268, refd to. [para. 16].

Swinamer v. Nova Scotia (Attorney Gen­eral) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321; 112 D.L.R.(4th) 18, refd to. [para. 16].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1; 26 M.P.L.R. 81; 66 B.C.L.R. 273, refd to. [para. 16].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 16].

Lewis et al. v. British Columbia, [1997] 3 S.C.R. 1145; 220 N.R. 81; 98 B.C.A.C. 168; 161 W.A.C. 168, refd to. [para. 24, footnote 1].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9, refd to. [para. 27].

Ryan v. Victoria (City) et al. (1999), 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103; 168 D.L.R.(4th) 513 (S.C.C.), refd to. [para. 27].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241; 83 D.L.R.(4th) 114, refd to. [para. 33].

Veinot v. Kerr-Addison Mines Ltd., [1975] 2 S.C.R. 311; 3 N.R. 94, refd to. [para. 34].

Preston v. Canadian Legion of the British Empire Service League, Kingsway Branch No. 175 and Edmonton (City) (1981), 29 A.R. 532; 123 D.L.R.(3d) 645 (C.A.), refd to. [para. 86].

Leblond v. Board of Education of Ottawa, [1984] O.J. No. 1150 (H.C.), refd to. [para. 86].

Chretien v. Jensen et al. (1998), 116 B.C.A.C. 81; 190 W.A.C. 81 (C.A.), refd to. [para. 86].

Beatty v. Brad-Lea Meadows Ltd. (1986), 39 A.C.W.S.(2d) 344 (Ont. H.C.), refd to. [para. 96].

Asody v. Taylor (1974), 3 N.R. 381; 49 D.L.R.(3d) 724 (S.C.C.), refd to. [para. 99].

Kolodychuk v. Squire (1972), 34 D.L.R.(3d) 265 (S.C.C.), refd to. [para. 99].

Statutes Noticed:

Education Act, R.S.O. 1990, c. O-2, sect. 236 [para. 72].

Negligence Act, R.S.O. 1990, c. N-1, sect. 3, sect. 4 [para. 98].

Occupiers' Liability Act, R.S.O. 1990, c. O-2, sect. 2, sect. 3(1) [para. 28]; sect. 4(1) [para. 95].

Counsel:

Glenn A. Smith and Risa A. Kirshblum, for the plaintiffs/appellants;

Barry Percival, for the defen­dant/respondent.

This appeal was heard on September 9, 1998, before Morden, A.C.J.O., Catzman and Feldman, JJ.A., of the Ontario Court of Appeal.

On June 21, 1999, Feldman, J.A., released the following judgment for the Court of Appeal.