IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140124

Docket: S124827

Registry:
New Westminster

Between:

Owen Paquette, by
his Litigation Guardian,

Nancy
Paquette, and the said Nancy Paquette

Plaintiffs

And

The Board of
School Trustees,

School
District No. 36 (Surrey)

Defendant

Before:
The Honourable Madam Justice Sharma

Oral Reasons for Judgment

I.        Introduction

[1]            
The issue in this case is whether the defendant Board of School Trustees
is liable to the plaintiff, Owen Paquette, for injuries he suffered when he
fell off the roof of Peace Arch Elementary school on March 4, 2008. The plaintiff
alleges the defendant was negligent and breached its duties under the Occupiers
Liability Act, R.S.B.C. 1996, c. 337 [OLA]. The plaintiff acknowledges
partial liability but submits the defendant should be found between 60-75%
liable for his injuries.

[2]            
The defendant denies liability and says the plaintiff is wholly
responsible for the injuries he suffered.

II.       Disposition

[3]            
For the following reasons, I find the defendant has not satisfied its
duties under the OLA and is 75% liable for the plaintiff’s injuries.

III.       Facts

A.       Climbing onto and being on the school roof

[4]            
Owen Paquette was a student in grade seven at Peace Arch Elementary
school and was 12 years old in March 2008. He was the tallest student in his
grade, measuring between 5’8” and 5’10”. After school on March 4, 2008, Owen
and his friend Jordan Dyck went to Jordan’s house to drop off their things. They
returned to school to play basketball, something they often did. After playing
a bit of basketball, they ran into Dean Coleridge, a student in grade six. They
had a brief discussion and then Jordan and Owen decided they would go onto the
school roof by climbing a cherry tree located close to the school. Owen
testified that Dean told them about using the cherry tree as an access point to
the roof, and that he had discussed this with Dean on at least one prior
occasion. Dean could not recall those conversations. They climbed the tree
after school had ended for the day and when there was no supervision of the
playground or outer areas of the school.

[5]            
Jordan climbed up first and Owen followed. Owen had never been on the
roof of the school before. Owen testified that he decided to climb onto the
roof because he thought it would be fun. He and Jordan had no specific plans about
what to do once on the roof; nor did they have a plan for getting off the roof.
Owen admitted that he knew he should not go on the roof and that he understood
that he would get into trouble and get punished if he was caught.

[6]            
The cherry tree they climbed is on the south west side of a part of the
school referred to as “pod” 300. A pod is a standalone building close to other
parts of the school. Peace Arch Elementary school is comprised of four pods and
all but pod 100 are connected to each other by covered walkways that function
like an outdoor hallway. Pods 200, 300 and 400 roughly form a “U” shape such
that there is a courtyard in the middle.

[7]            
The cherry tree is almost the same height as the roof of pod 300. There
is about 12 inches between the roof and the edge of the branch nearest it. The
top branches have an umbrella shape, meaning smaller branches droop down a bit.
Based on one photograph in evidence that looks up at the branches from near the
main trunk, there is at least one branch that is thicker and more sturdy than
the others around it. The end of that particular branch is approximately 12
inches from the roof and the branch is about 12 inches long. There is a joint
between that branch and the trunk (or possibly another branch; it is not clear
from the photograph). This joint is a bit thicker than the branch itself and is
about two feet from the edge of the roof.

[8]            
The parties differ on whether it was easy or difficult for Owen to scale
the tree and get onto the roof. The defendant says the evidence establishes
that the tree was shaking as he climbed it, and he had a “fair jump” from the
branch to the roof and that he landed on the roof on his tummy and then had to
shimmy to pull himself fully onto the roof. None of these facts are
inconsistent with it being easy for Owen to have climbed the tree and got on
the roof. He testified that in his mind there was “zero chance” the tree would
break as he climbed it. Remembering that Owen was at least 5’8” tall and, by
all accounts, a typical 12 year old boy who had previously climbed trees, I
accept his evidence that he climbed the tree easily and with little effort.

[9]            
Once on the roof the boys eventually traversed eastwards, first along
the top of the covered hallway which connects pod 300 to pod 200 and then along
the hallway that connects pod 200 to pod 400. When they decided to get down
from the roof, they chose to go to the southeast corner of pod 400. Along the
south side on the ground at that corner of the building there is a gated,
locked wire fence which encages a cement stairway. The stairway is eight or
nine feet deep and leads down to a door that gives access to a crawl space
underneath pod 400 that is not currently being used by the school. The top of
the wire fence is about seven feet from below the roof. The roof is
approximately 12 feet high; thus, the wire fence must be approximately five
feet high. The wire fence enclosing the stairwell juts out from the roof line
by about 13 inches. The top of the wire cage thus offers a ledge about half way
between the roof and the ground.

[10]        
While the two boys were on the roof, Dean followed their movements from
the ground. That is to say, he travelled from near the cherry tree, to the
outdoor hallway between pods 200 and 300 and then eastwards and slightly north
to the end behind the library.

B.       Interaction with Vice Principal Helland

[11]        
During this time, Vice Principal Brad Helland was in his office in pod
200 which had a window facing south into the courtyard. He testified that he
was startled when he heard running on the roof. He testified he called out from
his open window in a loud, firm and directive voice saying:   “Hey, get off the
roof!”, or words to that effect.

[12]        
There is a dispute between the parties about the timing of the running
in relation to his yell. Owen testified they only started running after they
heard Mr. Helland yell whereas Mr. Helland claims it was the sound of
running that alerted him to there being someone on the roof.

[13]        
Nothing of significance turns on this difference. There is also a
possible explanation for the differing accounts. It may have the boys’ landing
onto the roof which Mr. Helland mistook for the sound of running, a completely
understandable mistake. I have inferred this possibility from the testimony of
Ms. Paquette who said Mr. Helland told her he heard “thumping” on the roof just
before he yelled out his open window. However, I cannot make that finding
because it was not put to Mr. Helland. Regardless, it does not matter
because nothing significant turns on the timing of the boys’ running in
relation to Mr. Helland’s yell.

[14]        
In any event, Mr. Helland was concerned that someone was on the roof who
was not authorized to be there. He exited the building and went to the
courtyard, trying to see who was on the roof. He could not see anyone so he
then proceeded eastward, ending up behind the library. At this point he ran
into Dean and asked him, among other things, if Dean knew who was on the roof.
Dean said he did not.

[15]        
Realizing that Mr. Helland knew someone was on the roof, the boys
decided to exit the roof from the southeast corner, where the gated cement
stairwell is located. Owen testified that they chose that exit point because it
looked to be both the easiest and safest. He said, from his point of view, it
was also the only way he could see to get down other than the cherry tree. It
was suggested to Owen in cross-examination that the boys were actually looking
for the route furthest away from the office in order to reduce the risk of
being caught. However, Owen insisted that ease and safety were his primary
concerns. This is inconsistent with Owen’s evidence given on examination for discovery.

[16]        
I find that when exiting the roof, Owen was motivated primarily, if not
exclusively, by the desire not to get caught and thus into trouble. The boys
had a strong incentive to put as much distance between themselves and Mr.
Helland because they knew what they were doing was wrong and would get them
into trouble. Owen admitted to running after he heard Mr. Helland’s yell. These
events must have been unfolding very quickly. In my mind it is probably that 12
year old boys who are up to mischief would want to try and get away with it. Indeed,
there might be something unusual if I was being urged to find the boys were not
worried at all about getting caught but that was not Owen’s evidence.

C.       The fall

[17]        
At this point, Jordan hung down from the edge of the roof, presumably
placed his feet on the top of the wire fence, and safely jumped to the ground.
Unfortunately Owen lost his grip on the roof. He slipped and then fell all the
way onto a cement surface at the bottom of the stairwell, a total distance of
about 20 or 21 feet. Because the gate was locked and no key could be found in
time to open it, firefighters attending the scene had to break open the lock to
get access to him. An ambulance was called and he was taken to Peace Arch
Hospital where he was treated for his injuries and was admitted for at least
two weeks.

[18]        
Mr. Helland testified that about the time he was questioning Dean,
Jordan appeared. Jordan was white as a ghost and told them Owen had fallen. They
went to the stairwell and saw Owen at the bottom in obvious pain and distress. Another
teacher was already at the scene and calling 911 on a cell phone. Mr. Helland did
not have the key to the gate on his key chain so he ran to the office to look
for it, and also to get someone to contact Owen’s mother, Nancy Paquette. She
was contacted and she then contacted her partner and Owen’s stepfather, Tony
Delavalle. They both made their way to the hospital to see Owen.

[19]        
Mr. Helland filled out an incident report and that evening went to the
hospital to check on Owen’s condition. He had a conversation with both Ms. Paquette
and Mr. Delavalle. All agree that Mr. Helland was apologetic and concerned
about Owen’s condition. Mr. Helland testified this accident was the worst he
has had to deal with in his teaching career.

D.       March 26 and 27, 2008

[20]        
Ms. Paquette and Mr. Delavalle went to the school on March 26 hoping to
run into either the principal or Mr. Helland because their efforts until then
to have a meeting about the accident had not been successful. I note that
between March 4 and March 26 there were two weeks of Spring Break.

[21]        
The evidence regarding what happened on March 26 differs somewhat, but
by all accounts Ms. Paquette and Mr. Delavalle ran into Mr. Helland, who showed
them both the cherry tree and the cement stairwell where Owen fell. Mr. Helland
says that he specifically showed them the “door jam” access point which he only
learned about when interviewing Dean the day after the accident.

[22]        
Mr. Delavalle testified that Mr. Helland gave them a complete tour of
the school and pointed out numerous possible access points to the roof. Mr.
Helland denies this and insists he only showed them the tree, stairwell and
door jam. As Ms. Paquette’s evidence is inconsistent with Mr. Helland’s
evidence, I prefer Mr. Helland’s evidence on this point.

[23]        
That being said, it matters little because Mr. Delavalle returned to the
school the next day and took photographs depicting a number of points where
someone could attempt to climb onto the roof. These photographs were entered
into evidence by consent and there was no dispute about what they depicted.

E.       Mr. Hurd’s evidence

[24]        
Mr. Hurd was the principal of Peace Arch Elementary School from 1999
until 2009. He testified about numerous occasions where he believed people had
been on the roof, based either on what he saw or what he was told.

[25]        
On one occasion, students reported to him that youth were partying on
the school roof over the weekend. He also recalls either the former principal
or a teacher telling him the school had a problem with kids going on the roof. This
explained why when he first arrived at the school as principal, a board was
placed perpendicular to the roof at one potential access point, in an attempt
to block access to the roof. Mr. Hurd felt that the board was insufficient
to prevent access and he got it widened. On another occasion students at the
school told him their older brother had been on the roof. He then called and
spoke with the boys’ mother, telling her that being on the roof was unsafe. He
also told the court about occasions when the school would be colder than normal
on a Monday morning. Upon inspecting the furnaces, which were located on the
roof, maintenance workers told him the gas had been shut off. The only way to
shut off the gas was to go up onto the roof.

[26]        
 Mr. Hurd could not know how the roof was accessed where he was simply
told that someone had been on the roof.

[27]        
On two occasions Mr. Hurd witnessed people on the roof. In neither case were
they students at the school. Mr. Hurd estimated them to be older teenagers. On
one of these occasions he saw a youth in a coniferous tree close to the school
and another youth on the roof. He told them to get down and the one on the roof
jumped back onto the tree and climbed down. After this incident he asked for two
trees to be removed, the one he had seen the youths in and another in a
different area but that was similarly proximate to the school. In the other
incident he witnessed a teenager on the roof who was the older brother of a
student at the school. That boy’s father was at the school and told him to get
down, which he did by jumping directly to the courtyard below.

IV.      Issues

[28]        
There is one issue in this case:  did the defendant discharge its duties
under s. 3(1) of the OLA, which states:

3(1)      An occupier of
premises owes a duty to take that care that in all the circumstances of the
case is reasonable to see that a person, and the person’s property, on the
premises, and property on the premises of a person, whether or not that person
personally enters on the premises, will be reasonably safe in using the
premises.

[29]        
To decide that issue I need to answer two questions

1.  Was it reasonable in all the
circumstances for the defendant to allow the cherry tree to be in close
proximity to the school roof, and;

2.  Did Mr. Helland’s interaction with the
boys when they were on the roof contribute to Owen’s injuries?

V.       The Law

[30]        
There is no dispute about the guiding legal principles, which are
helpfully summarized in Bendzak v. Bohnet, 2013 BCSC 435 at paras. 41-48.
Paraphrasing those passages, the following points are pertinent to this case:

·       section
3(1) of the OLA is a comprehensive code and common law negligence cases
need not be considered in determining whether the duty of care has been met;

·      
an occupier is not held to a standard of perfection; an occupier
is not an insurer against any possible risk of harm;

·      
the test is whether the defendant’s actions were reasonable in
all the circumstances; the test is not whether anything at all could
have been done to prevent injury but whether the defendant’s actions were
reasonable in all the circumstances;

·      
the general class or nature of the harm suffered in the
circumstances must have been reasonably foreseeable, although the exact type of
injury suffered need not have been foreseen;

[31]        
It is also undisputed that decisions made under s. 3(1) of the OLA
are fact‑intensive and require a contextual analysis. As such, the degree
to which a previous case will be helpful depends, perhaps to a greater extent
than in some other areas of the law, on the similarity of facts to the case
before the court.

VI.      Discussion

A.       Liability

The Cherry Tree

[32]        
The defendant contends that it met the duty of care owed under s.3(1) of
the OLA and raises a number of arguments in support of this position.

[33]        
First, the defendant says there was no way for it to anticipate that
Owen would use the cherry tree to access the roof because there was no evidence
that the cherry tree had actually been used for that purpose in the past. Rather,
there was only evidence that it was rumoured that the tree had been used in
that way. Second, in its written submission, the defendant says that “it satisfied
its standard of care by regular monitoring the conditions at Peace Arch
Elementary” and taking reasonable steps to remove ALL access points of which
they were aware keep students and others reasonably safe. As such, the
defendant says it could not have reasonably foreseen Owen’s injuries and is therefore
not liable.

[34]        
I am not persuaded by the defendant’s submissions on this point. I note
first that the defendant’s written submissions overstate the evidence somewhat
in suggesting monitoring was regular and that all access points of which it was
aware were removed.

[35]        
First, most of the time the defendant knew people had been on the school
roof, the defendant did not know how they got there. The lack of evidence about
people having previously used the cherry tree to access the roof is, therefore,
unsurprising. On one occasion the defendant did know that someone climbed a
tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a
tree close to the school will tempt kids to climb it and get onto the roof. I
conclude it was foreseeable that trees close to the school might be used to access
the roof. It is simple common sense that if a child can get onto a roof, it is reasonably
foreseeable that the child might fall off that roof and get badly injured.

[36]        
Second, there was no evidence of “regular monitoring” of potential
access points to the school roof. If there was at any time either a schedule of
routine inspection or an assessment of trees proximate to the school that could
potentially provide access to the roof, I would have expected that to be put
into evidence as it would have clearly been material to this case.

[37]        
Instead, the evidence demonstrates that if the defendant took any action
in response to knowing youth had been on the roof, it was only reactive and ad
hoc. This was despite the fact that there were numerous possible access points to
the roof, as depicted in Mr. Delavalle’s photographs.

[38]        
Mr. Hurd’s evidence establishes that this school had a problem with
youth getting onto its roof. The numerous incidents he recalls confirm that
this problem was known to the principal, teachers, maintenance workers,
students and their families and others. Despite this, there is no evidence that
the defendant required anyone to turn their mind to whether any trees were
growing too close to the school roof and providing the access that allowed for
this problem to persist.

[39]        
In making these findings, I am mindful that the defendant is not
expected to be perfect and that it would be impossible to completely prevent
anyone getting on the school roof other than in an authorized fashion. However,
taking into account all the circumstances of this case, it was unreasonable
that the defendant allowed the cherry tree to grow so close to the school’s
roof.

[40]        
The defendant also argues it should not be held liable because most, if
not all, other instances of people being on the roof occurred on the weekend
and probably involved teenagers. The problem with that submission is the issue
in this case is not about when the roof was accessed. Rather, the issue is
whether the defendant’s actions in relation to possible roof access points were
reasonable. The school is a permanent structure and its grounds are open to the
public. When the roof was accessed is immaterial to the determination of
whether the defendant acted reasonably in allowing the cherry tree to grow so
close to the roof.

[41]        
The same reasoning can be applied to the defendant’s argument that it
was likely only older, non-students who had been on the roof previously. I note
the evidence about the age of the people on the roof on weekends was obviously
speculative, except for the two instances Mr. Hurd witnessed. It would be
imprudent to place significant weight on this point when the evidence is not
conclusive. But even if it was proven that all prior incidents involved
teenagers, I do not find that that fact would support a conclusion that this
accident was not foreseeable. If there are numerous instances of teenagers
being on the roof, the elementary school students would know about it. This inference
is confirmed by Mr. Hurd’s evidence that he received reports from his students
about people on the roof during weekends. It is common sense that if students
know that older youth have been on the roof, they may be tempted to do the same.
More than one witness agreed that tree climbing is a normal part of childhood.

[42]        
Mr. Hurd testified he was surprised that was how the boys got on the
roof because he thought the tree was flimsy. As noted above, I have found the cherry
tree had a study branch close to the roof. More importantly, in my view a
reasonable person understands that a child might try climbing any tree close to
the roof, flimsy or not. Owen was a 12 year old boy. Children act impulsively,
with little forethought about the consequences of their actions and with
limited insight. Put more simply, reasonable people foresee that children can and
often do stupid things that are dangerous even when they know they shouldn’t.

[43]        
I am not suggesting that the inherent nature of childhood means an
occupier is liable for anything that a child might do. As always, each case
must be assessed in context, reviewing all the circumstances.

[44]        
Given the circumstances at this particular school, a reasonable person
would foresee that the cherry tree (or any other tree in similar proximity to
the school roof) might be used by kids to climb onto the roof. As such, the
defendant is liable for not taking reasonable actions to prevent children
accessing the school roof via the cherry tree.

Mr. Helland’s Actions

[45]        
I am satisfied the defendant is liable based on the above finding alone.
However, the plaintiff also argues that Mr. Helland’s conduct contributed to Owen’s
injuries and Mr. Helland ought to have known that injury could result when he
reacted as he did. Although it is unnecessary to do so, I will consider the argument
about Mr. Helland’s conduct.

[46]        
The plaintiff argues that by yelling in an angry voice and telling the
kids to get off rather than calmly telling them to wait for instructions for a
safe exit, Mr. Helland acted unreasonably and contributed to Owen’s injuries. I
do not agree. Children doing something wrong and at risk of being discovered
but not yet caught are likely to flee regardless of what a teacher says. For that
reason alone, I do not find that Mr. Helland’s conduct contributed to
Owen’s injuries. Thus the defendant is not liable on this basis.

B.       Apportionment

[47]        
The plaintiff accepts that he must bear some responsibility for his
injuries because he climbed the roof knowing he should not. The plaintiff
submits the defendant is between 60-75% liable.

[48]        
The approach to determining apportionment is set out in Cempel v.
Harrison Hot Springs Hotel Ltd.(1997), 43 B.C.L.R. (3d) 219, 1997 CanLII
2374 (C.A.) at paras. 18-19. Speaking for the majority, Lambert J.A. states:

[18] I believe the trial judge’s choice of words and the
syntax of the last two sentences indicate that the reason that the plaintiff
was required to pay 75% of her own loss was that she was "primarily the
author of her own misfortune". I consider that the trial judge reached his
conclusion on apportionment by deciding that the apportionment should be based
on an assessment of relative degrees of causation as between the plaintiff as
an active causative force at the moment of the injury and the defendant as a
passive causative force at the moment of the injury.

[19] I think that such an
approach to apportionment is wrong in law. The Negligence Act requires
that the apportionment must be made on the basis of "the degree to
which each person was at fault". It does not say that the
apportionment should be on the basis of the degree to which each person’s fault
caused the damage. So we are not assessing degrees of causation, we are
assessing degrees of fault. In this context, "fault" means
blameworthiness. So it is a gauge of the amount by which each proximate and
effective causative agent fell short of the standard of care that was required
of that person in all the circumstances.

[49]        
The critical factor to consider is “fault” or blameworthiness, rather
than assessing the degree to which a plaintiff is the author of his or her own
misfortune.

[50]        
I understand the defendant to argue that because Mr. Helland’s conduct
did not contribute to Owen’s injuries, liability can be avoided. I agree that
Mr. Helland’s conduct did not contribute to Owen’s injuries, however I stated
earlier that I find the defendant liable irrespective of Mr. Helland’s conduct.

[51]        
As such, I am assessing the defendant’s blameworthiness for failing to
take action to prevent children accessing the roof via the cherry tree, or any
other tree in similar proximity to the school roof. For the defendant’s fault
in this regard I find the defendant 75% liable.

“Sharma J.”