General Editors: Kevin P. Feehan, QC and Bruce Hutchison, B.A., LL.B. Consulting Editor: Justice Marvin A. Zuker, Ontario Court of Justice VOLUME 15, NUMBER 3 Cited as 15 R.M.C.E. FEBRUARY 2015 • CASE SUMMARY: ROLLINS (LITIGATION GUARDIAN OF) v. ENGLISH LANGUAGE SEPARATE DISTRICT SCHOOL BOARD NO. 39 • Brian Vail, QC, Field LLP The plaintiffs claimed for injuries allegedly suffered by the plaintiff Lindsey Rollins at an alleged schoolyard incident 19 years in the past, on May 15, 1990. At the time, Lindsey Rollins was six years old and in Grade 1 at St. Agnes Catholic School. The plaintiffs alleged that while Lindsey and a friend (Amy Lozon) were playing in the schoolyard at noon recess, an “older boy” standing behind Lindsey swung a pair of roller blade skates over his head and suddenly let go of them so that they struck her on the left side of her head. They alleged that although Lindsey remained at school for the rest of the day, her parents noticed that there was something wrong with her that evening. Lindsey’s mother and coplaintiff gave evidence that Lindsey had been warm and feverish that evening and acted withdrawn. She also claimed that Lindsey’s left eye began to twitch and that she complained of pain behind that eye. The next day, Lindsey was taken to her maternal grandmother’s home as her parents were going out of town, but Lindsey’s condition suddenly worsened. Her left eye began to twitch more severely, and she began to hallucinate. She had a convulsion. She was rushed to a medical clinic where the first doctor recorded that she was “noticed to have a convulsion”, and she was diagnosed with “convulsion secondary to quarry head injury, to rule out meningitis, metabolic abnormality, etc.” The plaintiffs argued that Lindsey had been a normal child before the alleged schoolyard incident and that afterwards, her condition worsened. Her seizures did not stop despite • In This Issue • CASE SUMMARY: ROLLINS (LITIGATION GUARDIAN OF) v. ENGLISH LANGUAGE SEPARATE DISTRICT SCHOOL BOARD NO. 39 Brian Vail, QC .................................................... 37 In association with Catholic Principals’ Council of Ontario Risk Management in Canadian Education February 2015 Volume 15, No. 3 38 RISK MANAGEMENT IN CANADIAN EDUCATION Risk Management in Canadian Education is published four times during the school year by LexisNexis Canada Inc., 123 Commerce Valley Drive East, Suite 700, Markham, Ontario L3T 3W8. Design and compilation LexisNexis Canada Inc. 2015. Unless otherwise stated, copyright in individual articles rests with the contributors. All rights reserved. No part of this publication may be reproduced or stored in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright holder except in accordance with the provisions of the Copyright Act. ISBN: 0-433-43063-0 ISSN: 1496-1431 ISBN: 0-433-44395-2 (Print & PDF) ISBN: 0-433-44702-8 (PDF) Subscription rates: $165 per year (Print or PDF) $235 per year (Print & PDF) Please address all editorial inquiries to: Boris Roginsky, Journals Editor LexisNexis Canada Inc. Tel. (905) 479-2665; Toll-Free Tel. 1-800-668-6481 Fax (905) 479-2826; Toll-Free Fax 1-800-461-3275 Internet e-mail: firstname.lastname@example.org. EDITORIAL BOARD GENERAL EDITORS Kevin P. Feehan, QC, Dentons Bruce Hutchison, B.A., LL.B., Genest Murray LLP CONSULTING EDITOR The Hon. Mr. Justice Marvin A. Zuker, Ontario Court of Justice EDITORIAL BOARD MEMBERS Bonnie Ozirny, General Counsel, Saskatchewan School Boards Association Teresa Drijber, Ontario School Boards’ Insurance Exchange Noella Martin, Wickwire Holm, Halifax Keith Thomas, Manitoba Association of School Trustees, Winnipeg. Note: This newsletter solicits manuscripts for consideration by the General Editors, who reserve the right to reject any manuscript or to publish it in revised form. The articles included in Risk Management in Canadian Education reflect the views of the individual authors. This newsletter is not intended to provide legal or other professional advice and readers should not act on the information contained in this report without seeking specific independent advice on the particular matters with which they are concerned. brain surgery. In early 1996, after a failed brain surgery, Lindsey was diagnosed with Rasmussen’s encephalitis, which was held to be a rare auto-immune disease of uncertain origin. The plaintiffs blamed the defendant school board and the defendant principal Chaput for allegedly failing to have kept Lindsey safe from harm while at school. The quantum of damages has been agreed to, and the only issue before the court was liability. The only witness who could give eye-witness evidence as to the incident was Lindsey’s classmate and friend, Lozon. Her evidence was that all other students were outside at the noon recess when the event occurred. She said that Lindsey was facing her with her back to the fence and that an “older boy” behind Lindsey was swinging a pair of rollerblades in a circle over his head, holding on to the shoe laces. She said that the boy let the rollerblades go and they hit Lindsey on the back of the head. She was not sure how many times the boy actually swung the rollerblades before letting go. She testified that it was “quite a few times” and that it went on for “at least a minute”. She said that Lindsey fell to the ground and looked as if she was sleeping. She said that she tried to wake Lindsey up by shaking her. She knew it was an emergency so she said that she looked around to see whether there was a teacher or monitor in the vicinity. She testified that teachers who supervised the recesses were always in the paved area where she and Lindsey were, but that after looking for a teacher in the schoolyard for “a minute or two”, she found none and so went into the school to find one. Lozon testified that once she got into the school, she went to the teacher’s room and found Lindsey’s Grade 1 teacher, McCormick. She claimed to have told McCormick that Lindsey Risk Management in Canadian Education February 2015 Volume 15, No. 3 39 had been hit. She said that McCormick went outside and found Lindsey sitting up and crying. She claimed that McCormick got Lindsey to her feet and walked her back into the school. She said that once inside McCormick’s classroom, Lozon again told McCormick that Lindsey had been hit in the head with rollerblades. She testified that McCormick told Lindsey that she would get her an ice pack and a bag of chips and that if she ate the chips she would feel better. This was done. Lozon testified that Lindsey remained in the back of the classroom until the start of the afternoon class—at which time, she returned to her seat and remained there until the end of the school day. Lozon testified that she had told several others, in addition to McCormick, about what had happened. She claimed that she spoke to a couple of other students in the class and to Lindsey’s mother after the incident. She testified that she told Lindsey’s mother within a week of the incident that Lindsey had been hit with rollerblades. Lozon maintained that she had a good recollection of the incident. She said that after that day Lindsey did not return to school for the remainder of the school year. Lozon backed up on some of her evidence in cross-examination. She was less sure about having told Lindsey’s mother about the incident within a week of its happening once crossexamined about it. As to her claim that there had been no teachers in the schoolyard, she conceded in cross-examination that she never really paid attention to whether there was one there or not and that it was not a matter of interest to her at that time. When cross-examined about the unidentified boy who had been swinging rollerblades, she backed up on her direct evidence to the effect that he had been swinging them for “minutes” and conceded that he had only swung them a couple of times, a matter of a few seconds. The plaintiff Lindsey’s recollection of the incident was limited and based almost completely on what she was later told by Lozon and others. She claimed to remember going into the school and telling McCormick that she had been hit and that McCormick responded by telling her to go outside and eat chips. She claimed that McCormick had told her to keep her head down on the desk and she would feel better. She recalled having been tired for the rest of the day and even worse the next morning. After the seizure in her grandmother’s home, her memory was blank except for the faint image of a hospital room. She conceded that she did not have a good memory of things in the past. In cross-examination, she conceded that sometimes teachers were not in the school on time and that when she was struck there was no teacher in the schoolyard. She claimed that she and Lozon had looked before they went inside. This contradicted Lozon’s evidence to the effect that Lindsey had passed out from the blow. Lindsey’s mother, Elizabeth Rollins, testified that she and her husband talked to the principal and McCormick about what they would do if Lindsey ever had a seizure at school. She claimed that after Lindsey had a second seizure at home, the Tuesday following the weekend in which she suffered her first, she and her husband went to the school and spoke to the principal Chaput and McCormick. She claimed that she asked Chaput whether he had found the student who had struck Lindsey, and received a reply in the negative. She claimed that the principal promised to look into it. She claimed that the principal also said that it would be alright if Lindsey did not return to school to finish the year. She claimed that McCormick attempted to Risk Management in Canadian Education February 2015 Volume 15, No. 3 40 impress her and her husband that Lindsey would pass the school year in any event. After that, they kept Lindsey out of school for the rest of the year. The defence called the teacher McCormick to the stand. She had been an elementary teacher since 1969 before retiring 30 years later at the end of January 2001. She recalled both Lindsey and Lozon as “very sweet” and “very nice”. She recalled only one serious incident involving a student during the relevant time frame, a student other than the plaintiff Lindsey Rollins. She recalled an incident where a boy had slipped in the grass of the schoolyard and injured his arm. She had no recollection of any serious schoolrelated injury involving Lindsey. She claimed that she first heard about Lindsey’s allegation after learning of the lawsuit many years later. She denied ever having been told about Lindsey being struck in the head. McCormick also adamantly denied ever telling other students about any such roller blade incident involving Lindsey. She said that she would have regarded any such incident as “extremely serious” and would have investigated to figure out what happened, reported to the principal, and notified the parents. She testified that she learned about Lindsey’s seizure only at the examination for discovery when shown a copy of the school’s attendance records for 1989–90. They showed that Lindsey was absent from school on May 16, 17, 18, 23, 24, and 25, 1990. The note accompanying them indicated the reason for absence was “in hospital, seizures”. McCormick testified that she would have received that information from the school secretary who would have received it from Lindsey’s parents. McCormick recalled that Lindsey’s mother called the school one time to inquire whether there had been any accident reports written about Lindsey. She was not sure when the mother made the inquiry, although she thought it came after the new school construction started in approximately 1999. Looking at the school attendance records, McCormick noted that Lindsey had no prolonged absences after the month of May 1990 and that she had only one and a half absent days in June 1990. McCormick testified that she could recall only one incident involving Lindsey in the 1989–90 school year. When McCormick was brining students inside from an outside recess, Lindsey was crying. She recalled asking Lindsey what was wrong and that Lindsey told her that someone had bumped into her. She recalled asking Lindsey a few questions but that afterward Lindsey stopped crying and appeared to be fine. From McCormick’s perspective, that was the end of the matter. She absolutely denied the allegations of Lozon and Lindsey to the effect that she offered Lindsey chips to make her feel better. In cross-examination, McCormick admitted that she had a far-from-perfect memory of events going back to 1990 in her class. In connection with the case, McCormick had given two statements to an adjuster after the lawsuit commenced: in June 1998 and April 2000. When cross-examined on the contents of those statements, the Ontario Superior Court of Justice found that McCormick’s “responses were defensive, and more than once she pointed out that she had not read the statements, or received a copy of what [the adjuster] had written”.1 She insisted that she had never meant to say that Lindsey’s parents were called after Lindsey complained on the occasion of having been bumped at recess. She maintained that she could not recall any serious injury happening to Lindsey, causing her to call the parents. She testified that in her adjuster’s statement she had been Risk Management in Canadian Education February 2015 Volume 15, No. 3 41 describing a procedure that was to be followed for any injured child and was not specific to an event involving Lindsey. The school principal, the defendant Chaput, was a principal for 25 years for his retirement at the end of June 1990. He testified that he learned about Lindsey’s injuries only when reading about the lawsuit in the local press in 1998. He was so surprised at seeing his name mentioned in the article that he spilled his coffee on his lap. He could recall any knowledge or recollection of any serious injury to Lindsey prior to that point in time. He could only recall two incidents involving injuries severe enough to warrant decisive action and notification of parents. Both involved boys who had other issues. He recalled Lindsey Rollins as a name, but beyond that, his recollection of Lindsey the child was vague. He had no recollection of a meeting with the parents outside his office after May 15, 1990 or any recollection of ever being told that Lindsey would not return to school, because she had been struck by rollerblades. He had no recollection of being told that Lindsey was injured while at school. He testified that if he had learned of this, he would immediately have conducted an investigation and followed that up with an incident report. In cross-examination, the principal acknowledged that it was possible that he was not at the school that day, as sometimes his duties required him to be away from school. On those occasions, he delegated his responsibilities to a “head teacher” who could contact him in an emergency. He could not recall whom he had chosen as a head teacher during the 1989–90 school year. The plaintiffs argued that the school board and principal had breached their duty of care for failing to provide adequate supervision in the schoolyard on the day of the incident, for failing to investigate and report on the incident adequately, for failing to have sufficient supervisors on duty in the schoolyard, for failing to separate primary level students from junior level students (the alleged “older boy” who had allegedly swung the rollerblades). The plaintiffs called an expert (Mr. Toll) who was ultimately qualified to give expert opinion respecting the standard of care with respect to supervisors at an elementary schoolyard in 1990 and the standard or protocol for the filing of incident reports following a school-related accident. His evidence as to supervision was summarized by the trial judge as follows: 78 Mr. Toll testified that, based on his experience, he would expect the teacher on yard supervision in a K-6 school, such as St. Agnes, to discharge at least the following duties: (i) promptly attend on yard duty and remain in the schoolyard until all students have re-entered the school building; (ii) be visible and move around the assigned area; (iii) observe the student group at all times; (iv) assist students who appeared to be ill, injured or otherwise in distress, seeking additional help as necessary; (v) intervene and stop student confrontations; (vi) prevent older and stronger students from playing m areas where primary pupils congregate; (vii) intervene and stop student misbehaviour of any sort; (viii) supervise the orderly line-up of students re-entering the school following recess and other breaks; and (ix) report to the principal any matters requiring administrative intervention, for example, injuries, fighting, general disobedience and/or misbehaviours. Risk Management in Canadian Education February 2015 Volume 15, No. 3 42 79 Mr. Toll indicated that, given the many responsibilities associated with yard supervision, the very presence of a supervisor in the schoolyard is vital. Again, the defendants take no issue with this opinion. Nor is there any dispute between the patties that the yard supervisor should be visible and mobile in the exercise of his or her duties, so as to serve as a deterrent against any type of altercation or other inappropriate student conduct. Toll also opined that older and stronger students should be prevented from playing in the same area as primary students. He testified that a schoolyard should be divided so that primary students would not intermingle with secondary students. The defence called evidence with respect to schoolyard supervision. There was a supervision schedule in place at the school at that time. The evidence of the principal and teachers who were called as witnesses was that schoolyard supervision “was a matter of considerable importance” at that school while Chaput was principal. Before the beginning of each school year he called a meeting of staff to go over their duties and responsibilities, including with respect to schoolyard supervision. He communicated that he expected teachers to be constantly moving in the schoolyard and to look for any untoward behaviour or dangerous activity. The principal testified that he adhered to school board policy and answered to the superintendent on these issues. He confirmed that before each school year he distributed and explained to his teachers the supervision schedule and advised them of the board’s policy. He noted that in general terms certain things were not allowed on school property, including the use of roller skates and skateboards. The form provided to each teacher had a section on supervision specifying prohibited activities, including the use of rollerblades and skateboards. Although there was no mention of rollerblades, the principal considered that they would be covered under the same ban as roller skates and skateboards. He testified that the policy of the school and school board provided that students were to be supervised by a teacher in accordance with a pre-set schedule. Other than where special activities were taking place (such as a sports game), only one teacher was assigned to schoolyard supervision. The principal acknowledged that there was no fixed rule in place to keep older students away from younger ones. The evidence established that at some point in time after the alleged incident, the school changed its policy to increase schoolyard supervision from one teacher to two. The plaintiffs argued that this was the result of a tragic death at school of another student. McCormick testified that the change was because the school underwent major construction impairing the originally excellent sightlines of the schoolyard so that two teachers became necessary. Also in issue was the question of whether or not the Rasmussen’s encephalitis (which the plaintiff Lindsey was ultimately diagnosed with) was causally related to the alleged incident. The plaintiffs called Dr. Gillett, a neurologist, with a specialization in paediatric neurology. It was undisputed that Lindsey’s seizure disorder first manifested itself at her grandmother’s home on May 16, 1990. It was also undisputed that she was diagnosed properly with Rasmussen’s encephalitis after the failed brain surgery years later. Dr. Gillett testified that Rasmussen’s encephalitis was a rare disease of unknown aetiology. He noted that it tended to be more present in children than in adults and that it would be paediatric neurologists who would most likely see patients with that disease. Dr. Gillett noted that Risk Management in Canadian Education February 2015 Volume 15, No. 3 43 the plaintiff’s medical records indicated that a few weeks before she claimed to have been struck on the head, she had suffered a cold and had been placed on the drug erythromycin (“EES”) and that she had been taking that drug on May 15, 1990. Also, when she was seen in the hospital after her first seizure on May 16, 1990, she was described as “glassy eyed and complaining of a headache and holding the left side of her head”. Dr. Gillett also took into account Lindsey’s school records. Dr. Gillett testified that she had come to believe that Lindsey had many early symptoms of a mild brain injury. She considered it important that the seizures started within 24 hours of an alleged mild brain injury and that they persisted and increased in frequency even after the surgery much later. Dr. Gillett put forward in her report a “hypothesis” that the seizures developed due to a combination of a blow to the head from the rollerblades (resulting in a mild brain injury) on May 15, 1990, and that this occurred while she was in a vulnerable state due to the presence of antibodies in her system: 143 Dr. Gillett's position, which she put forward in a report for trial as a “hypothesis,” is that Lindsey’s seizures developed as a result of a combination of two central factors. The blow to her head on May 15, 1990, from rollerblades, resulted in a mild brain injury. The mild brain injury occurred while she was in a vulnerable state due to the presence of antibodies in her system. The combination was “the perfect storm.” The blow to the head caused the blood brain barrier to open sufficiently long to allow some pre-existing antibodies and/or T cells, likely created by her recent low-grade viral infection, to cross over and attack her brain, triggering the seizure disorder. Dr. Gillett theorized that, because the antibodies and/or T cells were already made, they were primed to rapidly multiply once an antigen—Lindsey’s brain—was targeted. This target, she said, would not have been produced had not the blood brain barrier been breached by the mild brain injury from the blow to the head by the rollerblades. According to Dr. Gillett, Lindsey would not have gone on to develop Rasmussen’s encephalitis without the blow to the head. 144 Under direct examination, Dr. Gillett described Rasmussen’s encephalitis as a rare seizure syndrome, presenting with focal seizures that then became more involved, more frequent, and more serious. She testified, as well, that the disease is currently thought to be an autoimmune disorder. An autoimmune disorder is one in which the body’s immune system attacks a normal component of the body it ought not to be attacking. In the case of Rasmussen’s encephalitis, the body attacks itself until all the neurons in the brain are dead and the seizure activity ceases. Dr. Gillett testified that Lindsey’s case, however, is atypical. Her seizures have not burned out. Moreover, unlike in the typical case, Lindsey now has some degree of bilateral disease, meaning that both sides of her brain are affected. 145 In the 2008 report Dr. Gillett prepared for trial, she wrote that her hypothesis was that “a blow to the head causing a ‘mild’ brain injury can be a contributing factor to Lindsey Rollin’s [sic] subsequent challenges.” At trial she acknowledged that her hypothesis was not supported by any definitive scientific research. Nonetheless, she said that she understood the word “hypothesis” to mean, “what we feel is happening most likely.” And, in Dr. Gillett’s medical judgment, in all probability, the blow to Lindsey’s head from the rollerblades breached the blood brain barrier, creating a cascading effect leading to the Rasmussen’s encephalitis. Dr. Gillett also referred to a Japanese study in 2006, to support her hypothesis. In cross-examination, Dr. Gillett conceded that the disease in question was “poorly understood” by the medical profession. The trial judge concluded that there were three issues before the court at trial: (a) Did the School Board and/or principal Chaput breach a duty of care to Lindsey in failing to protect her from injury from another student while she was at recess in the school playground on May 15, 1990? and, (b) If so, have the plaintiffs proved that the defendants’ negligent conduct on that day caused Lindsey to suffer a head injury? and, Risk Management in Canadian Education February 2015 Volume 15, No. 3 44 (c) If so, have the plaintiffs proved that the negligent conduct caused or precipitated the onset of Lindsey’s Rasmussen’s encephalitis? 2 Held at Trial: For the Defendants, Action Dismissed (a) The trial judge noted the distinction that must be drawn between credibility and reliability: 47 In R. v. Morrissey, [(1995), 22 O.R. (3d) 514 (Ont. C.A.).] Doherty J.A. noted that: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. It follows that, though witnesses may testify to what they sincerely believe to be true, they may be quite honestly mistaken. 48 It has been said that trial judges are seldom more conscious of their natural frailties than when they are called upon to make findings of fact upon conflicting testimony, and when the conflict must be resolved largely upon conclusions as to credibility and reliability. In Faryna v. Chorny [ 2 D.L.R. 354 (B.C.C.A.), at 357.] a case decided more than a half-century ago, O’Halloran J.A. remarked that “[t]he law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses.” The best one can do, O’Halloran J.A. said, is to reasonably subject each witness’s story “to an examination of its consistency with the probabilities that surrounded the currently existing conditions” [footnotes omitted]. (b) The court also commented on the approach to be taken to the evidence of children: 50 In R. v. W. (R.), [ 2 S.C.R. 122 (S.C.C.).] McLachlin J., as she then was, wrote for a unanimous Court that we must “approach the evidence of children not from the perspective of rigid stereotypes” but on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.” McLachlin J. added: Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. (c) In this case, the trial judge found that he could decide very few facts with any measure of confidence and certainty. He concluded that on May 15, 1990, the plaintiff Lindsey likely suffered an injury in the schoolyard at noon recess, probably caused by a boy striking her from behind with rollerblades. However, the evidence of Lozon to the effect that the boy in question was “older” or that he had been swinging the blades for a considerable period of time was far less reliable. He concluded that the plaintiffs had “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”. He also found that the plaintiffs had “not shown that the swinging of the rollerblades was for any time extending beyond mere seconds”.3 The trial judge also had reservations about the evidence to the effect that Lozon or Lindsey told the teacher McCormick how Lindsey had been injured. Although the court could not find that any of the plaintiff’s witnesses were intentionally seeking to distort the truth, the evidence of the plaintiffs and the defendants Risk Management in Canadian Education February 2015 Volume 15, No. 3 45 could not be reconciled: “one side is [was] either skillfully lying or mistaken”.4 (d) In particular, the trial judge found that the plaintiffs had not proven that the teacher or principal were told about the injury: 61 From all this, I conclude that, whether or not the alleged conversation between Mr. and Mrs. Rollins and principal Chaput and Mrs. McCormick ever took place, the plaintiffs have not demonstrated on a balance of probabilities that there was a discussion about how Lindsey was injured, or, specifically, whether rollerblades were involved. I reach this conclusion because I find it to be the most consistent with the probabilities surrounding the then existing conditions. It was noted that the emergency room records immediately after the first seizure did not record a complaint that Lindsey had suffered a blow to her head. Similarly, the subsequent medical records either did not disclose a blow to the head or did not mention a boy swinging rollerblades or rollerblades having been involved. There was no reference to rollerblades or Lindsey having suffered a head injury and becoming unconscious. There was no reference to rollerblades until a doctor’s report of 1995, five years later. The trial judge noted that in cases of seizures, medical personnel insist on learning exactly how such injuries occurred: 68 As Dr. Smith pointed out, when a patient presents with seizures the doctor insists on learning exactly how the injury occurred. I conclude that, more likely than not, neither Lindsey nor either of her parents told the initial caregivers anything about rollerblades. I find, as well, that, even if there was a meeting between Lindsey’s parents and principal Chaput and Mrs. McCormick shortly after the schoolyard incident, more likely than not Mr. and Mrs. Rollins said nothing at the meeting about rollerblades, just as they said nothing about rollerblades to the doctors who consulted with Lindsey for the first four or five years after the incident. In addition, the court found the evidence of the teacher McCormick to have been credible and that the school records did not show the plaintiff Lindsey as having been absent for the rest of the school year after May 15, 1990: 71 I find Mrs. McCormick to have been sincere, honest and credible, though at times defensive, especially regarding certain portions of the statements attributed to her by Mr. Comiskey, Weighing all the evidence, I believe her testimony that she was not told how Lindsey was injured. I also believe her testimony that the only incident she remembered involving Lindsey was a relatively benign one, a bumping by another student that brought Lindsey to tears, and an event not nearly so severe as to warrant a report to the principal or a call to the parents. I reject the accounts of Ms. Lozon, Lindsey, and Mr. Poplawski to the extent they suggest that in a single, isolated moment, and for no apparent reason, Mrs. McCormick acted out of character, or that, as Ms. Lozon stated, she did not remember the event correctly, or that as Lindsey alleged, she was “trying to cover up for a really crappy school.” 72 Regarding the question of whether Lindsey missed the remainder of the 1989–1990 school year after her seizure on May 16, 1990, I find that the best and most reliable evidence is to be found in the school attendance records, which clearly show that Lindsey was absent seven days in May, one and one-half days in June, and a total of twenty and one-half days for the entire year. There is no suggestion that Mrs. McCormick, or anyone else associated with St. Agnes, fabricated the attendance records, or had any reason or motive contemporaneous to the making of the records to falsify them. Both principal Chaput and Mrs. McCormick testified that they only learned of the alleged striking of Lindsey after the plaintiffs commenced their action in 1998. I believe them. 73 During cross-examination, counsel for the plaintiffs suggested to Mrs. McCormick that perhaps she had confused or mistakenly transposed Lindsey’s attendance data with those of the preceding student on the list, student 18, who is shown to have been absent five days in June for the reason that she was on “Vacation up North”. As I noted earlier, Mrs. Rollins testified that she and her husband took Lindsey to North Bay, and that she did not think Lindsey went back to school that term. But, if that were the case, the school attendance records, even allowing for an error in transposition, would have shown that Lindsay was absent not merely for five days in June, but for the whole month. I have no reason to doubt the accuracy of the 1989–1990 school attendance records. I find that Mr. and Risk Management in Canadian Education February 2015 Volume 15, No. 3 46 Mrs. Rollins, Ms. Lozon, and Mr. Poplawski were mistaken in believing that Lindsey failed to return to school after May 16, 1990 to finish the school year. The court also found that the plaintiffs had failed to prove that a teacher was not on duty in the schoolyard when Lindsey was injured: 83 In cross-examination, Ms. Lozon conceded that she never really paid attention to, and was not much interested in, whether a teacher was in the schoolyard, unless she needed one. During examination-in-chief, Ms. Lozon described the schoolyard incident involving her best friend as “scary,” and said that she knew it was an emergency. In these frightening circumstances, in my view, it is almost certain that the six-year-old Ms. Lozon did not look for a teacher in the schoolyard for “a minute or two,” but more likely for fleeting seconds, before going into the school for help. 84 I take this view, in part, because elsewhere in her testimony Ms. Lozon’s estimates of time were occasionally inconsistent and contradictory. Thus, for example, she testified at one point that the boy swung the rollerblades “quite a few times,” and for “at least a minute,” then that he swung them “a couple of times,” perhaps for seconds. Such inconsistencies are entirely understandable in the circumstances, but their inevitable effect is to call into question the reliability or trustworthiness of Ms. Lozon’s perceptions in the moment, including her sense that there was no supervising teacher in the schoolyard at the noon recess on May 15, 1990. Weighing all the evidence, I find that the plaintiffs have not proven on a balance of probabilities that no teacher was on duty in the schoolyard when Lindsey was injured. I find it equally or more likely that a teacher was present in the schoolyard, consistent with what Mrs. McCormick described as an “extremely strict” and important supervision policy and practice at St. Agnes, though the supervisor might not necessarily have been in the relatively confined asphalt area, or within Ms. Lozon’s immediate visual range. The court summarized the law with respect to the standard of care respecting supervision by school authorities: 93 At common law, and under the Education Act, the standard of care to be exercised by school authorities in providing for the supervision and protection of students is that of the careful or prudent parent: Myers v. Peel (County) Board of Education [ 2 S.C.R. 21 (S.C.C.).].The standard of “the careful of prudent parent” has become “somewhat qualified in modern times because of the greater variety of activities conducted in schools, with probably larger groups of students using more complicated and more dangerous equipment than formerly.” The standard is not one: ... which can be applied in the same manner and to the same extent in every case. Its application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances [footnotes omitted.] (e) The court also noted that schools owe a duty of care pursuant to occupiers’ liability legislation: 97 Apart from the duty of the “careful or prudent parent,” school authorities also have a second type of duty imposed upon them by the Occupiers’ liability Act [R.S.O. 1990, c. O-2]. As occupiers of premises, school authorities are obliged, pursuant to section 3(1) of the Act, “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” The occupier’s duty is a positive one, as the Court of Appeal for Ontario made clear in Kennedy v. Waterloo (County) Board of Education [(1999), 45 O.R. (3d) 1 (Ont. C.A.) at para. 29.]. (f) The court rejected the plaintiff’s arguments that the defendants had breached the standard of care. As to separating older students from younger students, it was found that there was “no fixed rule in place to keep older students away from younger ones”5 and that the principal’s practice of allowing co-mingling of older and younger students, “were reasonable exercises of his duty and authority”.6 The court accepted Risk Management in Canadian Education February 2015 Volume 15, No. 3 47 the principal’s evidence “without reservation” as to the implementation and enforcement of schoolyard supervision: 108 I conclude that principal Chaput was a competent educator and administrator. I accept without reservation his assertion that, in the exercise of a broad range of duties as principal of St. Agnes, including those relating to the implementation and enforcement of schoolyard supervision, he adhered strictly to Board policy, and that he did so consistently over the seven years he presided at St. Agnes. In the circumstances, I consider that it was unnecessary for the defendants to call any additional witness from the Board merely to reiterate principal Chaput’s own testimony. Principal Chaput was no rogue principal on a frolic of his own, making private policy as he went. Moreover, he acted reasonably and in concert with Board policy in not enforcing by rule the separation of primary and juniorlevel students. Neither principal Chaput nor the Board breached the standard of care incumbent upon them in adopting and adhering to this practice. The court accepted the defence position that supervision by one teacher was reasonable and that the increase to two teachers thereafter had been due to construction changes in the school: 111 Near the close of his examination-in-chief, principal Chaput also alluded to the significant expansion at St. Agnes after his retirement. His evidence on this point is not disputed. In my view, on these facts, there is no cause to infer that, because the number of yard supervisors at St. Agnes increased to two in 1998, there should likewise have been two in 1990. Nor is there any indication in the case law referred to me by the parties that a school the size of St. Agnes should have had more than one yard supervisor to oversee approximately 150 students. For example, in Parks v. Vancouver School District No. 39 [ B.C.J. No. 44 (B.C. Prov. Ct.).], the Court found that a supervision program calling for one or two teachers to patrol an elementary school population of between 430 and 450 students was reasonable. . . . . . 113 In the circumstances of this case, I conclude that principal Chaput and the Board met the minimum standard of care by providing for a policy requiring one teacher to supervise a student cohort of approximately 150. No one disputes the defendants’ evidence that in 1990, and until the school’s expansion in 1998, the sight lines of the schoolyard at Saint Agnes were unobstructed. Indeed, as I noted earlier, principal Chaput testified that he could see the entire schoolyard from the inside of his office, and he frequently monitored the students from that vantage point. Furthermore, the court held that “there is no fair or reasonable basis to conclude that a teacher was not present in the schoolyard at the noon recess on May 15, 1990”.7 The trial judge accepted the principal’s evidence that if a student had been seen using rollerblades, they would have been confiscated by the teacher on duty, because the board policy that expressly banned roller skates would have been interpreted to cover rollerblades as well. (g) The court rejected the plaintiff’s argument that the defendants had failed to properly investigate the schoolyard incident. The trial judge accepted as credible the evidence of the principal and teacher that if the matter had been reported to them, they would have investigated and prepared a report: 120 Setting aside Ms. Lozon’s unreliable evidence that no teacher was on duty on May 15, 1990, virtually all the rest of the plaintiffs’ case concerning lack of supervision in the schoolyard rests essentially on supposition and conjecture, unsupported by facts. By contrast, I accept as credible principal Chaput’s evidence about the system of supervision which he employed at St. Agnes. I reiterate my finding that, in 1990, his plan was adequate, and well-suited to the school’s physical layout and the surrounding playground. I find further that, consistent with the school’s and the Board'’ policy, there was most likely a supervisor on duty on the date in question, though Amy Lozon did not see one. Additionally, the clear weight of the evidence reveals that the teachers who served as schoolyard supervisors at St. Agnes, including principal Chaput, were alive to the issue of skateboards, roller skates, and rollerblades on the School’s premises. Further, on this evidentiary record, I am satisfied beyond all doubt that if any serious incident involving Lindsey, or any other student, had been reported to Mrs. McCormick or to Mr. Chaput on or about Risk Management in Canadian Education February 2015 Volume 15, No. 3 48 May 15, 1990, they would not have hesitated to investigate and report on the matter in accordance with their duty. To the extent Mr. Toll’s opinion suggests that either principal Chaput or the School Board breached a duty of care to Lindsey, I reject it. (h) The Court concluded that although there is a high standard of care on teachers and school boards, they are not held to a standard of perfection: 122 In such a case as this, involving allegations of negligence against school authorities, it is good to remember that, while school boards and principals have a high standard of duty and care, the duty is not that of an insurer or guarantor. Not every accident or injury in a school or on school property can be averted. Here, Lindsey was struck in the vanishing moment, suddenly and without warning. The striking would not likely have been prevented, even if two or more teachers were present in the schoolyard. Though Lindsey’s circumstances today are unspeakably sad, and worsening over time, I specifically find that neither defendant breached a duty of care to Lindsey. The plaintiffs’ action must therefore be dismissed. (i) The trial judge held that even if he was wrong with respect to finding no negligence, he concluded that the plaintiffs had failed to prove that any negligent conduct of the defendants had caused the damage suffered by the plaintiff. The court summarized the law with respect to causation: 124 In Snell v. Farrell [ 2 S.C.R. 311 (S.C.C.).], the Supreme Court of Canada observed that “[c]ausation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.” In the context of this case, the issue of causation must therefore turn on the relationship between the principal’s and/or the School Board’s alleged failure to supervise and protect Lindsey in the schoolyard and the onset of her resulting injury, an injury eventually diagnosed as Rasmussen’s encephalitis. In other words, is the proven relationship close enough to justify a burden of liability? Causation need not be established by scientific precision. It is “essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.” 125 In Hanke v. Resurfice Corp. [ 1 S.C.R. 333 (S.C.C.) at para. 21.], the Supreme Court reaffirmed that the basic test for determining causation remains the “but for” test. The plaintiff must prove to the civil standard on a balance of probabilities that “but for” the negligent act or omission the injury would not have occurred. Relying upon its earlier decision in Snell v. Farrell, the Court added that the “but for” test “recognizes that compensation for negligent conduct should only be made ‘where a substantial connection between the injury and the defendant’s conduct’ is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they ‘may very well be due to factors unconnected to the defendant and not the fault of anyone’.” 126 Although the Supreme Court recognized in Hanke v. Resurfice Corp., that the “but for” test is the fundamental rule for determining causation, it also acknowledged that a “material contribution” test may properly apply in special circumstances, provided two requirements are met: 1. “it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the ‘but for’ test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge.” 2. “it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach [footnotes omitted].” The court rejected Dr. Gillett’s opinion that Rasmussen’s encephalitis suffered by the plaintiff Lindsey had been caused by a blow to the head, finding that the doctor had crossed the line from being an independent expert to becoming an advocate and that her opinion was only a “hypothesis”: 151 In this part of her evidence. Dr. Gillett struck me as defensive and partisan. In minimizing or glossing over any meaningful distinction between possibilities and probabilities, Dr. Gillett lost her Risk Management in Canadian Education February 2015 Volume 15, No. 3 49 objectivity and became somewhat less or other than impartial. The definitions she attached to such words as “hypothesis” and “postulate” also cause me to have some concern about her objectivity and reliability. For Dr. Gillett, “hypothesis” is a word “we use to mean that this is what we feel is happening,” that “this is the most likely explanation of what’s happening,” and “to postulate” means to pose how something works. 152 Dr. Gillett’s definitions of these terms are at odds with their ordinary dictionary meanings. For example, the Concise Oxford English Dictionary defines “hypothesis” as “a supposition or proposed explanation made on the basis of limited evidence as a starting point for further investigation.” Thus, hypotheses are necessarily tentative statements about how something might be. The Concise Oxford defines “to postulate” as “to suggest or assume the existence, fact, or truth of something as a basis for reasoning, discussion, or belief.” In other words, a theory postulated is a theory remaining to be proved. A theory postulated is a starting point or basis for further reasoning. It is not proof of anything, on a balance of probabilities or otherwise. 153 Despite, therefore, Dr. Gillett’s confident opinion that “in all probability” Lindsay’s blow to the head disrupted her blood brain barrier, leading to the compromise of her body’s immune system, and, ultimately, to the onset of Rasmussen’s, the evidence in this case does not and cannot demonstrate the truth or reliability of this diagnosis beyond the realm of possibility. Dr. Gillett had to concede, for example, that she had no way of demonstrating a breaching of the blood brain barrier in any live patient, and that such a discovery can only be made by way of autopsy. 154 Beyond this, I reject as insincere and incorrect Dr. Gillett’s assertion that doctors often use the terms “possible” and “probable” interchangeably, and thus mark no important difference between a possible causal relationship and a probable one. This is not a trivial matter. This testimony, in my view, undermined the reliability of the central tenet of Dr. Gillett’s hypothesis about how Lindsey came to acquire Rasmussen’s, and it undermined her credibility and reliability generally. Dr. Gillett surely knew that in medical and scientific matters it is not enough for plaintiffs to show that a cause and effect sequence is theoretically possible. She also knew that the question of the causal connection between Lindsey’s mild brain injury and the onset of Rasmussen’s encephalitis was a fundamental issue to be determined in the trial. Her casual conflation of possibilities and probabilities renders her opinion on the cause of Lindsey’s disorder unreliable, and I reject it accordingly [footnotes omitted]. The court concluded as follows with respect to the medical evidence: 160 Weighing all the plaintiffs’ evidence on the probable cause of Lindsey’s injury, I find that the plaintiffs have not established causation on a balance of probabilities. I arrive at this conclusion aware that an inference of causation may be drawn even though positive or scientific proof of causation has not been established. In my view, the evidence in this case, including Dr. Gillett’s, establishes only one thing for certain about Rasmussen’s encephalitis: in 2009, it remains, as Dr. Gillett wrote, a “poorly understood” affliction. 161 Dr. Gillett’s theory of the central relevance of the bursting of Lindsey’s blood brain barrier is one that cannot be verified so long as Lindsey is alive. On this evidentiary record, it is also a theory that cannot be said to have gained widespread acceptance as a basis for understanding the cause(s) of Rasmussen’s encephalitis. It is a hypothesis only, and, in my view, no more probable an explanation for Lindsey’s condition than any other potential causative factor such as, for example, viral infection, all of which require further extensive scientific study. 162 Dr. Gillett testified as an advocate for a theory that may one day hold sway. But the weight of the evidence, taking account of the Japanese study implicating head trauma as a possible causative factor in approximately 8 percent of 34 Rasmussen’s patients, falls short, far short, of constituting persuasive proof on a balance of probabilities of a causal relationship between Lindsey’s head trauma and the onset or expression of Rasmussen’s encephalitis. . . . . . 165 I accept without reservation Dr. Modell’s opinion that there exists no proof on the balance of probabilities that Lindsey’s present condition was caused by a head injury in 1990. The clear weight of the evidence before me also confirms Dr. Moddel’s opinion that today no reliable scientific evidence exists upon which a court could justifiably conclude that mild brain trauma of the kind Lindsey suffered is a causative factor in the onset of Rasmussen’s encephalitis. The court also rejected the plaintiffs’ argument that in the absence of scientific proof the Risk Management in Canadian Education February 2015 Volume 15, No. 3 50 court could draw a “common-sense inference of causation”:8 168 Despite the coincidental connection between the schoolyard incident and Lindsey’s first seizure, there is no proof whatsoever of a causal relationship between the trauma Lindsey sustained on May 15, 1990, and her seizure disorder, later diagnosed as Rasmussen’s encephalitis. In light of all the evidence adduced, the likelihood of a causal nexus between the schoolyard incident and the onset in Lindsey of Rasmussen’s encephalitis is no more than a tenuous possibility. I reach this conclusion regardless of whether I apply the “but for” test or the exceptional “material contribution” test as provided for in Hanke v. Resurfice Corp. . . . . . 171 In dealing with the issue of causation, one must always distinguish between what the plaintiffs must prove, and how they may prove it. In my view, the plaintiffs have not made out a substantial connection between the injury to Lindsey and the defendants’ conduct. On my view of the facts, Lindsey’s unfortunate circumstances may very well be due to factors unconnected to the defendants, and not the fault of anyone. 172 In all the circumstances, I am not persuaded that this is one of those exceptional cases justifying a departure from the basic “but for” rule of causation. However, in the event the material contribution test applies due to factors outside the plaintiffs’ control, I now turn to it, and to the argument advanced in support of it Counsel, for the plaintiffs submitted that the plaintiffs met the first requirement of the test because it was impossible for them to prove what at least one of the actors in the causal chain—the unknown “older” student wielding the rollerblades—would have done had the defendants not committed a negligent act or omission. Moreover, the alleged negligent failure of the defendants to investigate and report on the schoolyard incident made it impossible for the plaintiffs to discover who the student was. 173 According to counsel for the plaintiffs, the plaintiffs satisfied the second requirement of the test because the defendants, by failing to provide any or adequate schoolyard supervision, exposed Lindsey not only to the risk of injury, but also to the form of injury she suffered, an injury to her head. According to this argument, Lindsey’s head injury was within the ambit of the risk created by the defendants’ breach. Thus, counsel argued, while it was impossible for the plaintiffs to prove positively that any one of the defendants’ breaches, say, for example, the failure to separate the primary and junior-level students, would have saved Lindsey from harm, each breach might be said to have contributed to the accident. 174 Under the material contribution test, a plaintiff need only prove that the defendant’s tortious act or omission contributed, beyond de minimis, to the outcome. However, for the reasons stated in my analysis of the standard of care issue, I have found that the defendants did not breach a standard of care owed to Lindsey. The plaintiffs, therefore, do not meet the “special circumstances” of the material contribution test because they have not fulfilled at least the second requirement of the test. Absent a finding of a breach of the duty of care owed to Lindsey, the defendants cannot be said to have caused or contributed to an increased risk that the outcome that did occur to Lindsey would occur. In other words, the evidence does not establish on a balance of probabilities that the defendants were even part of the cause of Lindsey’s schoolyard injury. The factual matrix or underpinning for such a finding is simply not present on this evidentiary record. I say this, mindful that the relationship between act or omission and injury or, exceptionally, between act or omission and risk of injury is a practical question best answered by common sense. Held on Appeal: Appeal Dismissed9 (a) The court rejected the plaintiffs’ argument that the absence of an incident report proved that either there was no supervisor present at the time of the incident or, if there was, that supervisor did not see that incident, proving negligence. It was held that the trial judge had carefully examined the evidence of the witnesses and found as a fact that the incident had not been reported to anyone at the school until several years later. It was held that this was a conclusion that was open to the trial judge on the evidence: 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 Risk Management in Canadian Education February 2015 Volume 15, No. 3 51 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 judge’s refusal to draw those inferences was unreasonable. (b) The court also held that any misapprehension of the evidence by the trial judge with respect to the policies regarding rollerblades was of no moment, noting that the mere fact that a student had been in possession of rollerblades on school property, in contravention of a school policy, established negligence: 6 In a related but more specific argument, the appellant submitted that the trial judge misapprehended the evidence of the school principal concerning the school’s 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 roller skates 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 roller skates 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 judge’s 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 school’s policy against rollerblades before the incident occurred demonstrated a breach of the school’s duty of care to the appellant. (c) The court declined to interfere with the trial judge’s conclusions to the effect that the school had not breached its duty of care. [Editor’s note: Brian A. Vail, QC, is a Partner, practising in the Edmonton office of Field LLP.] 1 Rollins (Litigation guardian of) v. English Language Separate District School Board No. 39,  O.J. No. 6193, para. 41 (Ont. S.C.J.). 2 Ibid., para. 6. 3 Ibid., para. 53. 4 Ibid., para. 54. 5 Ibid., para. 103. 6 Ibid., para. 106. 7 Ibid., para. 114. 8 Ibid., para. 167. 9 Rollins (Litigation guardian of) v. English Language Separate District School Board No. 39,  O.J. No. 646, 2012 ONCA 104. 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