Our client sustained injuries during in an incident at a public pool where she was aggressively pushed by the Defendant, a teenage boy, causing her to strike her head. The boy was a 17-year-old who had a severe case of autism and required constant supervision. The incident occurred while the boy was on a school trip.
We initially claimed damages from the city and the school board for negligence in failing to appropriately supervise the boy and monitor the pool area. However, our claim was amended to add the boy’s grandmother when we received previously undisclosed information from the school, suggesting that his grandmother had admitted to reducing dosages of her grandson’s prescribed medication. There was no dispute that the grandmother was her grandson’s primary caregiver, his only contact with his school, was responsible for administering his medication, and failed to instruct the school that she had changed her grandson’s medication dosage.
In response, the Defendant’s lawyer brought a Rule 21.01(1) motion arguing that the grandmother’s claim should be dismissed because she did not owe a duty of care to our client because he was under the care of his school during the time of the incident.
Justice Gibson explored the “duty of care” element within the context of a Rule 21.01(1) motion. Ultimately, he dismissed the Defendant’s motion to strike under Rule 21.01(1) and agreed with our position that the grandmother had a duty to ensure that her grandson did not pose a risk to the public. Since the grandmother was the primary contact for her grandson with the School Board and had an obligation to provide any updates or changes to his medication, Justice Gibson found that she had a duty to inform the School Board of that change, particularly when she knew he was attending a public swimming recreational activity.
In support, Justice Gibson found that there was an ‘apparent connection of the failure to take care to the type of harm caused to persons in the plaintiff’s situation.” Citing multiple decisions from the Supreme Court of Canada, Justice Gibson noted that on its facts, the case supports “the proposition that parents or caregivers may owe a duty of care to injured third parties for the negligent conduct of a vulnerable child, in appropriate circumstances.”