IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Jackson v. School District No. 53 (Okanagan |
| 2013 BCSC 203 |
Date: 20130208
Docket: 34863
Registry:
Penticton
Between:
Tylor Jackson, an
Infant by his Litigation Guardian
Janice Fargey
Plaintiff
And
Board of Trustees
of School District No. 53
(Okanagan
Similkameen)
Defendant
Before:
The Honourable Mr. Justice Bernard
Reasons for Judgment
Counsel for the Plaintiff: | M.D. Brooke |
Counsel for the Defendant: | C.L. Forth |
Place and Date of Hearing: | Kelowna, B.C. November 9, 2012 |
Place and Date of Judgment: | Penticton, B.C. February 8, 2013 |
A. Overview
[1]
On October 5, 2006, after classes at South Okanagan Secondary School (the school) had ended for the day, Makwalla Hall assaulted Tylor Jackson in
a school corridor. The two boys were in the ninth grade at the time. The
assault consisted of a single punch to the left side of Tylors head, causing
him to fall backwards and strike his head on a window. Most unfortunately,
Tylor sustained a traumatic brain injury from the blow and it has left him
mentally and physically compromised.
[2]
The assault was preceded by a threat uttered by Makwalla to Tylor in the
final class of the day. When Tylor asked Makwalla if he could borrow a pencil
from him, Makwalla said maybe I should kick your white ass.
[3]
In July 2010 Makwalla Hall died in a rodeo accident.
[4]
In July 2011 Tylor Jackson, through his litigation guardian, filed a
Notice of Civil Claim against the Okanagan Similkameen School District (the
School District), alleging negligence and seeking damages for his injuries.
[5]
The essence of the alleged negligence is that the school district fell
below the standard of care of a prudent and careful parent when it failed to
discipline Makwalla Hall, in accordance with the School Districts Progressive
Discipline Model, for an altercation with another student which occurred seven
months prior to the assault in question. As a consequence for that earlier
incident Makwalla was given a one-half day in school suspension and written
notification of the incident was sent to Makwallas parent.
[6]
The plaintiffs position, in brief, is that the discipline for the
earlier incident ought to have been, at a minimum, a three-to-five day
suspension; that such was required by the Progressive Discipline Model (the
PDM); that if such had been imposed, then the desired rehabilitative and
deterrent effects of the discipline would likely have prevented the assault
upon Tylor; that instead, Makwalla was emboldened by the lack of proper
discipline; and, that if a three-to-five day suspension had been imposed then
it is likely that such would have become known to Tylor (as a student of the
same school) and he would, thus, have known to take seriously and report the
threat uttered by Makwalla instead, he blew off Makwallas threat as idle
and took no steps to avoid Makwalla.
[7]
The sole defendant is the Board of Trustees for the Okanagan-Similkameen School District (the Board). The Board is the applicant herein. It seeks
summary dismissal of the claim, pursuant to Rule 9-7 of the Supreme Court Civil
Rules. The Board submits that the plaintiff has failed to prove that there
was a breach of the standard of care. Alternatively, it submits that the
plaintiff has failed to establish a causal link between the earlier incident
and the one in question.
[8]
The existence of a duty of care is conceded by the defendant, and the
nature, extent and cause of Mr. Jacksons injuries are not in question.
[9]
By the date of the instant application, all examinations for discovery
had been completed and documents had been exchanged. A trial date had not been
set.
[10]
The plaintiffs primary position in relation to the instant application
is that the Court should be able to find the facts necessary, on the evidence
presented, to grant judgment in favour of the plaintiff; however, if the Court
is unable to do so then it urges the Court to dismiss the application on the
basis that the matter is not suitable for resolution by summary trial because
of the seriousness of the injuries to the plaintiff.
B. Evidentiary Synopsis
[11]
In October 2006 Tylor Jackson and Makwalla Hall were grade nine students
at the school. Tylor Jackson is now a 20-year-old man and Makwalla Hall is
deceased.
[12]
In his affidavit, Mr. Jackson described the events of October 5,
2006 as follows: that during the last class of the day, he asked Makwalla if he
could borrow a pencil from him and Makwalla replied with the words maybe I
should kick your white ass; that he blew off the threat as not being
serious; that after class, in the school corridor, he heard his name called,
looked in the direction of the voice, and saw Makwalla standing in front of
him; that without warning, Makwalla pushed him into a window and punched him in
the head; and, that he briefly lost consciousness and woke up on the floor of
the hall. Other evidence establishes that later the same day he went to
hospital where he was diagnosed with a brain-bleed.
[13]
Mr. Jackson said he sustained a severe traumatic brain injury from
Makwallas assault; that it has resulted in permanent significant mental and
physical disabilities which affect all aspects of his daily life; that he
suffers from foot-drop, balance problems, cardiovascular challenges, neck and
back pain, difficulty negotiating stairs, difficulty in running, difficulty in
moving the right side of his body, cognitive difficulties, memory loss,
difficulty in speaking, and emotional difficulties including depression and
suicidal thoughts. He says that his injuries have prevented him from completing
high school or securing decent employment.
[14]
Mr. Jackson described Makwalla as an acquaintance prior to the
assault. He said he knew Makwalla to be a rowdy kid who got into fights
but not one who, without warning or provocation, jumped people. Mr. Jackson
said he was not aware that Makwalla had assaulted another student during the
eighth grade. He said that if Makwalla had been suspended for that assault then
word of it would have spread quickly around the school. He said if he had known
about the prior assault then he: (a) would not have tried to borrow a pencil
from Makwalla; (b) would have taken seriously Makwallas threat; (c) would have
immediately reported the threat to a teacher or school administration; and, (d)
would have watched his back for Makwalla. Mr. Jackson said he was aware
that the school policy was to take violence and threats of violence seriously.
[15]
Marty Lewis was the principal of the school in October 2006, and had
been so employed for the previous six years. In his affidavit he said he
learned of the assault on Tylor the following morning when Tylors step-mother
reported it (and Tylors significant injury) to him. He said he immediately
spoke to Makwalla who admitted the assault. He said he then reported the
assault to the RCMP and, in accordance with the districts PDM, he issued an
indefinite suspension to Makwalla and referred the matter to the District
Discipline Committee.
[16]
Mr. Lewis said that, at the time in question, the School District
had a policy to promote and contribute to a safe and secure school environment.
It required that students not bring weapons into the school, not act in a
violent manner, and not intimidate other students. In addition, the school had
its own Code of Conduct which demanded that students not engage in loud and
aggressive language, rudeness, vulgarity, swearing, fighting, bullying, or
horseplay. Mr. Lewis said that the consequences for breaches of the policy
or the code varied depending on the severity and number of breaches. He said
that an assault would typically result in a three-to-five day suspension,
notification to parents, and a conference. If the assault was serious, then the
RCMP would be notified, anger management counselling would be required, and
there could be a referral to the Superintendent or District Discipline
Committee.
[17]
Mr. Lewis stated that the School District had a written PDM in
place which identified various infractions and the corresponding recommended
disciplinary measures. Mr. Lewis said that it was his practice to employ
this disciplinary model at the school. The PDM identifies assault as an
infraction and defines it as follows:
A violent physical or verbal
attack on another person(s). An act that threatens or causes physical harm to a
person(s).
[18]
The PDM provides that, for a first offence of assault, the discipline
is:
Long term (3-5 days)
out-of-school suspension. Parents notified by phone and in writing by
Administrator. Parent conference, RCMP notification. Possible referral to
Superintendent/Designate or District Discipline Committee. Possible anger
management counselling.
[19]
The PDM does not list physical intimidation as an infraction; however,
there is an infraction of intimidation/bullying which is defined as follows:
Derogatory comments/actions which
imply violence or threats causing the offended to be fearful for personal
safety.
[20]
The discipline for a first offence of intimidation/bullying is as
follows:
Short term or long term in or
out-of-school suspension depending on severity. Parents notified by phone and
in writing by Administrator. Parent conference. Possible RCMP notification.
Possible referral to Superintendent/Discipline Committee. Subject to
interpretation based on severity.
[21]
Mr. Lewis said assaults and consensual fights were uncommon at the
school. He could recall only three or four in the seven years he was the
schools principal. He said students who wanted to fight often did so off
school grounds; however, if they were caught then they were subject to school
discipline. Mr. Lewis said he treated all assaults or fights as serious
events which attracted disciplinary measures. He said the Superintendent would
be notified for acts of violence that threatened or caused physical harm. If
the assault was serious the student would usually be referred to the District
Discipline Committee.
[22]
Mr. Lewis said he was not aware of Makwalla prior to the assault on
Tylor. He concludes from this that there had not been any previous
behaviour or disciplinary concerns about him, because such matters would come
to the attention of the principal and the student would be red-flagged.
[23]
After the assault on Tylor, Mr. Lewis obtained Makwallas Record of
Discipline and said that the incidents listed on it do not support a finding
that Mr. Hall has a violent record or that intervention was required.
He noted that there was an entry about a March 2, 2006 incident in which
Makwalla punched another student and a half-day in-school suspension was
imposed. He said the suspension document described the incident as one of
physical intimidation. Mr. Lewis said he was not aware of this incident
because his vice-principal, Philip Rathjen, dealt with it; however, he said
that a half-day in-school suspension would be reserved for non‑significant
conduct.
[24]
Philip Rathjen was the vice-principal of the school in the 2005/2006
school year and for the immediately preceding six school years. He was the
administrator who investigated the March 2, 2006 incident involving Makwalla. Mr. Rathjen
completed a standard Student Referral Form in relation to this incident,
which he signed and dated March 2, 2006. Under the section Brief
Description for Referral he wrote: Makwalla punched another student for
spilling juice on him. Under Reason for Referral he checked a box next to
severe behaviour. Under Action Plan options, he checked boxes next to conference,
letter home, and in-school suspension. Under comments above his
signature, he wrote: .5 day in-school suspension March 3, 2006 [for] physical
intimidation.
[25]
On March 2, 2006, Mr. Rathjen also wrote a letter to Makwallas
father, in which he informed Mr. Hall about the suspension and described
the reason for it as physical intimidation, without any further description
of the incident.
[26]
Mr. Rathjen does not purport to have an independent recollection of
the March 2 incident and of his investigation in relation to it; however,
he infers from the punishment he imposed that the incident was not serious
and was likely to have involved more of a shove or a threatening gesture than
a hard punch. He noted that he labelled the incident as one of physical
intimidation rather than assault, and said that physical intimidation is
different and less serious than assault.
[27]
Mr. Rathjen said that the March 2 incident was not one which
required the involvement of the school principal. He said the news of the
subsequent assault upon Tylor came as a complete surprise to him because
Makwalla was not known as a trouble-maker in the school.
C. Positions of the Parties
[28]
The plaintiffs position is that the defendant failed to follow school
policy and the PDM in relation to the March 2 incident involving Makwalla. It
submits that by these failures, the defendant fell below the requisite standard
of care and caused the later assault upon Tylor.
[29]
The plaintiff argues that if the first assault had been taken seriously
then the second assault would not have occurred. The plaintiff submits that
the defendants response to the March 2 incident was woefully inadequate
discipline which failed to achieve the desired deterrent and rehabilitative
goals; moreover, it resulted in the earlier assault not coming to the attention
of the student body, in particular Tylor, who could, and would, have taken
steps to prevent the assault upon him if he had known of Makwallas violent
past.
[30]
The defendants primary position is that the evidence relied upon by the
plaintiff does not establish that the defendant failed to follow school policy
and the PDM in relation to the March 2, 2006 incident. Alternatively, the
defendant says that even if there were such failures, they are too remote from
the October 2006 assault to have caused the plaintiffs loss.
[31]
In relation to the March 2, 2006 incident, the defendant relies upon the
evidence which shows that that the act was categorized as physical
intimidation rather than assault; thus, it was less serious than an assault
and the defendants response was neither inappropriate nor inconsistent with
school policy or the PDM.
[32]
In relation to causation, the defendant submits that even if the
disciplinary measures for assault under the PDM had been imposed, it is a
matter of speculation, rather than reasonable inference, that such would have
prevented the much later assault upon Tylor, either through its
deterrent/rehabilitative effects or its notoriety.
D. Findings and Analysis
[33]
It is common ground that: (a) the standard of care required of the
defendant is that of a careful and prudent parent: see Myers v. Peel
(County) Board of Education, [1981] 2 S.C.R. 21,17 C.C.L.T. 269; (b) a
careful and prudent parent is one who will not expose his or her child to an
unreasonable risk of foreseeable harm (Yasinowski (Guardian ad litem) v.
Gaudry et al, [1995] B.C.J. No. 1513 (S.C.); and, (c) causation is
established by application of the but for test: see Clements v. Clements, 2012 SCC
32 at para 8.
[34]
The plaintiffs negligence claim rests principally upon the narrow
question of whether the March 2, 2006 incident was a violent act by Makwalla;
that is, one which the vice-principal wrongly characterized as physical
intimidation rather than assault and, thus, one for which the disciplinary
measures taken were inadequate and inconsistent with the PDM. There is,
however, a relative dearth of evidence in relation to the March 2, 2006
incident, from which to determine this question.
[35]
Neither the complainant nor the reporter of the March 2 incident is
known, and the schools records of the incident are limited to a standard form
Student Referral Form and a copy of a letter sent to Makwallas father. On
the Student Referral Form under the heading Brief Description for Referral, Mr. Rathjen
(to whom the incident was reported) wrote Makwalla punched another
student for spilling juice on him. Mr. Rathjen has no present
recollection of his involvement in relation to the incident and, thus, cannot
say anything more about the matter from his memory. For example, he cannot say
whether, upon receiving the referral, he spoke to the complainant, or to
Makwalla, or to anyone who witnessed the incident; thus, he cannot now explain
his basis for ultimately characterizing the incident as one of physical
intimidation.
[36]
It is known that the March 2 incident was reported to Mr. Rathjen
as a punch, and then characterized as physical intimidation in both the
Student Referral Form and the letter to Makwallas father. In this regard, it
is noteworthy that Mr. Rathjen specifically stated that he investigated
the incident. Although it seems likely that he is inferring such either from
standard practice or from the fact that his determination differs from the
complaint, I am satisfied that such an inference is a reasonable one to draw,
in all the circumstances, and I accept it as an established fact. It makes
little sense that Mr. Rathjen would have categorized a reported punch as
an act of physical intimidation without having first made some sort of inquiry.
[37]
Similarly, Mr. Rathjen infers, from both the disciplinary action he
took and his decision not to involve the school principal, that the incident
was not a serious one more likely, in his words, a shove or threatening
gesture by Makwalla, rather than a hard punch. I am satisfied that this, too,
is a reasonable and reliable inference to draw, in all the circumstances. In
this regard, it is significant that there is no evidence to the contrary. The
report of a punch was, in essence, an allegation or complaint which required
investigation in order to determine what actually occurred. It is reasonable to
infer that an investigation revealed details which led Mr. Rathjen to
(a) regard the incident as a matter which was more properly characterized
as an act of physical intimidation, rather than an assault; and, (b) take
disciplinary measures consistent with the PDM for intimidation/bullying as a
first offence.
[38]
In light of the foregoing, I am unable to conclude that the plaintiff
has shown that the March 2, 2006 incident was one which involved a serious and
violent act by Makwalla; one for which the disciplinary measures taken were
either inadequate or contrary to school policy or the PDM. As this is the
foundation of the plaintiffs case, I must conclude that the plaintiffs
case cannot succeed.
[39]
In reaching this conclusion, I note that it is not the plaintiffs
position that the disciplinary measures imposed for an act of physical
intimidation, as a first offence, were either inadequate or inconsistent with
the PDM or school policy.
[40]
Even if, however, the evidence established that the incident ought to
have been categorized as assault under the PDM, there is an absence of detail
relating to the assault and, therefore, an inability to determine whether the
act warranted the imposition of disciplinary measures at the upper end of the
continuum for a first offence as provided by the PDM. There is no evidence
from which one could reasonably conclude that the incident was a serious
assault. For example, there is neither evidence that the complainant sustained
any sort of injury a surprising absence if such were the case – nor is there
is anything in Makwallas documented history which might reasonably have
informed the school administration of the need to address the incident of March
2, 2006 with any degree of elevated response.
[41]
In such circumstances, it would not be reasonable to conclude that the
longest available suspension and all the other available disciplinary measures
for assault, under the PDM, would likely have been employed. This is
significant not only because it undermines the plaintiffs position that the
disciplinary measures were woefully inadequate, but also because it
substantially weakens the plaintiffs argument that the disciplinary measures
for assault would have: (a) brought Makwallas reputation for violence to the
attention of Tylor, as a student at the same school; and, (b) deterred and
rehabilitated Makwalla, rather than emboldened him.
[42]
Even if, however, significantly harsher disciplinary measures than those
taken ought to have been employed for the March 2 incident, I am unable to
conclude that the plaintiff has established the requisite nexus between that
failure and the subsequent assault upon him. In this regard, it is noteworthy
that seven uneventful months transpired between the two incidents; that the
incidents occurred in separate school years and at a time when children and
their behaviours are changing rapidly; that it makes little sense that Tylors
state of mind about Makwalla would have turned on his awareness of the
discipline imposed on Makwalla rather than of the details of the incident
itself; and, that it would require considerable speculation to conclude either
that Makwalla would have been sufficiently deterred or rehabilitated such that
the assault upon Tylor would probably not have occurred, or that the assault
occurred because Makwalla was emboldened by the inadequacy of the discipline.
E. Conclusions
[43]
For all the foregoing reasons, I conclude:
a)
that, in this instance, the question of the liability of the defendant is
a matter which is amenable to resolution by means of summary trial;
b)
that the evidence relied upon by the plaintiff falls well short of proving
his claim of negligence against the defendant, with no reasonable prospect that
such will change in the foreseeable future; and,
c)
that the claim against the defendant is not unsuitable for resolution by
summary trial merely because the plaintiff sustained serious injuries at the
hand of a now deceased assailant who was impecunious while he was alive.
D. Disposition
[44]
The application of the defendant is allowed. If the parties cannot
resolve the matter of costs, then they are at liberty to make written
submissions.
The
Honourable Mr. Justice Bernard