2013 QCCQ 15840, 2013 QCCQ 15840

Séguin c. Laurier MacDonald High School 2013 QCCQ 15840 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-128491-117 DATE: December 12, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RICHARD SÉGUIN -and- ELIZABETH TURNBULL Personally and in their capacity as Tutor of their minor child Bruce Séguin […] , Montréal, QC, […] Plaintiffs v.

LAURIER MACDONALD HIGH SCHOOL English Montreal School Board 7355 Viau, St-Leonard, QC, H1S 3C2 Defendant -and- GREATER MONTREAL ATHELETIC ASSOCIATION address Impleaded party JUDGMENT [ 1 ] The Plaintiffs, Richard Séguin and Elizabeth Turnbull, are the parents of Bruce Séguin, who was injured during a soccer game on October 20, 2010.

Bruce, then a secondary III student at Laurier MacDonald High School, was playing for his school’s team against Laurenhill Academy in a league administered by the Greater Montreal Athletic Association (“GMAA”). [ 2 ] Séguin and Turnbull sue their son’s school, Laurier MacDonald, alleging that his injuries, consisting in a broken nose, two chipped teeth and a concussion, were caused by fault imputable to the school. They sue for $ 2,639.75.

The amount was amended at trial to the maximum of $ 7,000 permitted in the Small-Claims Division, in view of possible future damages. [ 3 ] The English Montreal School Board (“English Montreal”) was added to the proceedings by amendment. This was necessary because the school does not have legal personality. The school board does have legal personality: it is a legal person established in the public interest according to the Education Act RSQ ch. I-13.3,

section 113. [ 4 ] The school is an educational institution as defined in the Education Act,

section 36 . When allegations of fault are made in respect of the operation of an educational institution, it is the school board under which the school operates that responds to the claim and is ultimately responsible if liability is established. [ 5 ] English Montreal was represented at the hearing by Jean-Claude Goulet. Mr Goulet informed the Court that English Montreal is part of a liability self-insurance scheme known by its abbreviated name “Régime de gestion des risques” of which Mr Goulet is an employee.

This régime takes up the defence of the School Board, which explains why Mr Goulet was present at the hearing as the representative of English Montreal. [ 6 ] English Montreal impleaded the GMAA as a third party, because GMAA is the body under the auspices of which the league carries out its activities, under the banner “Sport Étudiant”. The procedure of impleading third parties makes GMAA a defendant in warranty and/or an additional defendant, as the case may require. [ 7 ] The GMAA adopted a “Soccer Handbook” (D-3) which, among other things, adopts the rules as established by the Federation

international de Football Association (F.I.F.A.), with certain modifications. [ 8 ] The incident occurred late in the game when Bruce, playing as goal tender for Laurier MacDonald, jumped to reach the dropping ball with this head. Michael Zois, a player on Laurenhill Academy, the opposing team, also jumped to reach the ball with his head at the same time. Both players were concentrating on the ball, not on each other. [ 9 ] The Court was informed that the situation is known as a “50-50 ball”. That is to say a ball in the air where two players have an equal chance to get it.

Bruce, as goalie, would have been authorised to take the ball with this hands provided he was within the crease. He testified that the crease line was not well marked, and he was not sure if he was inside or outside the crease. He believed he was probably outside the crease and acted accordingly. He doesn’t remember anything else until he woke up in the hospital. [ 10 ] The heads of the two boys collided and Bruce fell to the field with a broken nose, his two front teeth (#11 and #21) chipped and a concussion. Michael Zois was not injured at all. [ 11 ] Michael Zois describes the events with more detail.

Laurier MacDonald’s defence passed the ball back to Bruce, who was tending goal. As goaltender receiving an intentional pass, Bruce was not allowed to take the ball with his hands. He kicked the ball but missed his mark. The ball went up rather than out. Michael was playing attack, running toward the falling ball. He is not aware whether or not Bruce was in the crease, because the white lines were quite faded. [ 12 ] The ball was falling. Laurenhill were losing the game, in the second half, in a season where they were not doing well. The game didn’t matter. He had no intention to play rough.

It was a friendly game. This was not a very competitive league, although both players have triple A calibre and play on more serious teams. This was nevertheless a division I game, with elite players. [ 13 ] Not trying to be aggressive, both players simply went for the ball, not intending to hit each other. There was no point in being aggressive. [ 14 ] Michael thinks his forehead hit Bruce’s face. [ 15 ] Michael saw Bruce on the ground, shivering. Bruce was not responding.

Once the ambulance arrived, Michael volunteered Bruce’s information to the paramedics because the people from Laurier MacDonald didn’t know his birth date and address. [ 16 ] Michael Zois has been a close friend of Bruce since childhood. The two boys were teammates in another league. Michael accompanied Bruce to the hospital in the ambulance that was called to the scene, called Bruce’s mother on his cell phone and remained at the hospital until later that evening. [ 17 ] Michael MacKenzie was at the game as the supervisor of the group representing Laurier MacDonald as required by the GMAA rules.

He was not there as a coach. He saw the collision, which he describes as rather violent. The ball came off the defenseman, Bruce played it with his foot. The ball went up and came down. Both players went for the ball, as the rules require, with their heads. He confirms that the lines were not visible. [ 18 ] As soon as the referee let him on the field, he immobilised Bruce, called for the first-aid kit, stayed with him, working on stopping the bleeding, talking to him until he was taken under the care of the Urgence Santé paramedics who took over.

Bruce was dazed, going in and out of consciousness during the time up until he left to be taken by the ambulance to the Montreal Children’s Hospital. [ 19 ] The ambulance gave them a choice of two hospitals. The mother was called. He thinks it was clear to the mother that Michael Zois would go with the ambulance. Mr MacKenzie knew that the two boys were friends [ 20 ] When he was back at school, Mr MacKenzie observed his condition.

He is aware of the headaches and of Bruce’s difficulty in returning to organised competitive sports. [ 21 ] In fifth year he was back into elite sports. [ 22 ] Bruce’s medical condition required certain treatments, some of which required payment. [ 23 ] The Court noted the following (P-1): - ambulance $ 126.75; - dental $ 897; - Total $ 1,023.75. [ 24 ] He may require some additional treatment if tooth #21 becomes symptomatic and requires extraction and replacement with an implant and crown.

The forecast for these treatments amounts to $ 4,825. [ 25 ] As well, Bruce’s father, Richard Séguin, asserts a claim for $ 1,616 resulting from lost consulting fees because of the time spent going to medical appointments. [ 26 ] The symptoms of the concussion included headaches, a burning sensation in the eyes, and a lack of concentration. The broken nose was painful at first, but healed without the need of surgery. [ 27 ] Bruce missed a week of school. When he returned, he had trouble taking notes for a while because of headaches. He does not

believe that his overall academic performance was affected. [ 28 ] He had to suspend his participation in sports for a fairly long period of time. He got back into sports late in the 2010-2011 winter term taking up basketball.

He started playing with the soccer team toward the end of the school year but had to stop because of symptoms of the concussion that were reoccurring. [ 29 ] In terms of his sporting abilities, Bruce believes that at the time of the hearing he had recovered 80% of his athletic abilities. [ 30 ] He was not fit to play for six months to one year after the events. [ 31 ] He was ranked in division I soccer. He currently plays triple A. [ 32 ] There was some concern during the hearing about the quality of the lines marking the field.

In this league, the lines are traced once in the year with lime, but are not re-traced. The goal crease was partly marked, but not sufficiently to show the outer boundary of the gaol box. [ 33 ] Mr Loricella, the volunteer coach for the Laurier MacDonald team for eight years at the time, testified that the lines were very light. He saw the ball in the air, the two players going for it with their heads and the collision. This type of collision can happen anywhere on the field. [ 34 ] It was a standard move. [ 35 ] The referee called him onto the field with Mr MacKenzie.

They kept him on the field, tried to talk to him, and waited for the approximately 20 minutes that it took for the ambulance to arrive. He knew Bruce’s name and age, but not his address.

Mr Loricella says he spoke to the mother on the phone and mentioned that a player from the other team who declared to be his friend would accompany him to the hospital. [ 36 ] Mrs Turnbull denies knowing that Michael Zois would accompany her son. [ 37 ] As a coach, Mr Loricella reported to the staff member in charge at the school and to Mr MacKenzie. [ 38 ] He confirms that Bruce only came back to the team in the secondary V year. He was playing defence. [ 39 ] He confirms that the game was played with the usual number of players.

There was a girls’ GMAA match prior to this one, with the same referee. [ 40 ] The two players were looking up at the ball, preparing to jump. [ 41 ] There was no other option for Bruce than to go for the ball with his head. He would not have retreated back into the crease, assuming he was outside. Whether he was in or not, his only true option was to go for the ball with his head. [ 42 ] There was no discussion before the game about the quality of the field with the officials. [ 43 ] Mr MacKenzie spoke of his role as the responsible person.

He must accompany the students when they leave the school to go to the event. That is why he did not go to the hospital. Analysis [ 44 ] The written proceedings do not allege a specific fault on the part of the employees representing the school. [ 45 ] The claim is brought on the assumption that the school is responsible for the consequences of the accident because of its responsibility for the team. [ 46 ] On the facts, there is no fault in the cause of the event. The presence or absence of lines of the field is a red herring.

The 50-50 move was a standard feature of the game, and to be expected in these circumstances. Bruce acted the way he did because he believed he was probably outside the box. He really did not have the option of using his hands, and made the right decision. [ 47 ] The inherent risk in two players jumping toward the ball is that they may collide, hopefully without injury. It is a risk of the game, accepted by the parents in this case. [ 48 ] There was no intention on the part of the players to injure each other.

They both played according to the rules, and there was therefore no question that the officials or coaches did not enforce the rules or encouraged activity contrary to the rules. [ 49 ] The players were both elite experienced players able to assess the situation and play according to the normal practices of the sport. [ 50 ] Even the parents admit that there was nothing faulty about the way in which the game was conducted and played. They know enough about the game to realise that the 50-50 move is standard. They know that their child is engaged in a sport where two players can go head to head to control a ball.

They know that their son teaches house league where he instructs younger players to do this. [ 51 ] Mrs Turnbull is very upset that no one from the school accompanied her son to the hospital and nor could they give the vital information about him to the paramedics. She feels that an adult from the school should have accompanied him, in a sort of transfer of parental duty. One of the coaches should have done this. [ 52 ] In the Court’s respectful view, this is not negligence on the part of the school or the two individuals who were representing the

school. These individuals had to do their duty in accompanying the players. They could not leave the scene. Their duty was to make sure that everything possible was done to permit Bruce to obtain medical attention. They carried this out well. Their duty ended when the paramedics took the patient under their care. The paramedics were in charge: the presence of an adult would have been possible, but not necessary. [ 53 ] She is also upset about the response of the school after the events, especially on the part of the principal. Why was there no initiative to contact her, no concern, no reaction by the school?

Her emotional response is understandable, and should perhaps be a concern for the school, but it does not establish fault. [ 54 ] Mr Séguin feels that the organisers of the event should have provided insurance so that the family would not be left with the financial burden that was the aftermath of the event.

In other situations he is aware of, the organisers of sports leagues put in place health insurance for the benefit of the group. [ 55 ] So he feels that the school should be responsible for the costs, because it did not provide for insurance. [ 56 ] Respectfully, the Court does not agree with this assessment of the situation. It has not been demonstrated that the school was at fault in this accident.

In a situation such as this one where there is no civil liability on the part of the school, it is possible to have insurance, either individually, as a family, or as a group for the risk of accidents. [ 57 ] The impetus to insure against the risks and hazards that flow from a situation where there is no civil liability is with the individual or, in this case, because he is a minor child, the child’s parents. The school does not have the parental role in this case. It is an educational institution, responsible for learning.

It is also responsible for the security of the children placed in its care, and the board can have civil liability if commits a fault by not doing something it ought to do, or by doing something that it ought not to do, and that fault causes the damage.

It does not have a duty to insure others against risks of accidents occurring for which it is not liable. [ 58 ] If there are situations where an association adopts as its policy to offer the service of putting in place group insurance, it must do so diligently, but in this case, no case could be made that the school board or the GMAA had adopted such a policy, has it been imposed on them by law to do so. [ 59 ] The parents were not entitled to insurance, though they had the option of getting some themselves, and they did not have any reason to believe that the school or the athletic association had provided it. [ 60 ] Therefore the Court is of the view that the Defendant and the Impleaded party are not responsible for the damages claimed. [ 61 ] There should be no award of costs, because of the inequality of resources between the family and the institutions involved in the case and because the parents brought the matter to the Court for adjudication in good faith, and because of their genuine concern.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiffs’ demand; WITHOUT costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 3, 2013