2012 QCCQ 9254, 2012 QCCQ 9254

Skalkogiannis c. Commission scolaire des Trois-Lacs 2012 QCCQ 9254 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-121653-101 DATE : October 30, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ GREGORY SKALKOGIANNIS and JENNIFER AITKEN Plaintiffs v.

COMMISSION SCOLAIRE DES TROIS-LACS and AVIVA COMPAGNIE D'ASSURANCE DU CANADA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS plaintiffs are suing defendants, in damages, following an injury sustained by their son, on school grounds; [ 3 ] WHEREAS plaintiffs' 11-year-old son injured his front teeth, while playing in the gymnasium, during an after-school activity; [ 4 ] WHEREAS plaintiffs allege that the accident occurred due to a lack of supervision and due to insufficient lighting in the gymnasium; [ 5 ] WHEREAS there were two childcare staff members, namely Audrey Ménard-Lavergne ("Audrey") and Johanie Ménard- Lavergne, in the gymnasium, at all times, during the activity; [ 6 ] WHEREAS Audrey credibly denied plaintiffs' allegations; [ 7 ] WHEREAS , according to Audrey, although the lights were off in the gymnasium, the premises were not dark; [ 8 ] WHEREAS the doors were open and there was natural light coming in, as well as light from an adjacent office window and a strobe-light; [ 9 ] WHEREAS , at all times, one could see where one was going; [ 10 ] WHEREAS both childcare staff members circulated in the gymnasium, throughout the activity, and had good visibility; [ 11 ] WHEREAS , furthermore, before the activity began, both childcare staff members instructed the children to play quietly and not to run; [ 12 ] WHEREAS , a few minutes into the activity, four children, including plaintiffs' son, were seen doing "des roulades"; [ 13 ] WHEREAS staff immediately stopped the music; instructed the children to stop doing what they were doing; repeated their initial instructions; and advised the children that, if they didn't behave, staff would put an end to the activity; [ 14 ] WHEREAS it is shortly thereafter, that plaintiffs' son ran into a wall and injured his front teeth; [ 15 ] WHEREAS plaintiffs' son admitted that he was running at the time of the accident; [ 16 ] WHEREAS , after the accident, Audrey and colleague Nathalie Duperron proceeded to attend to plaintiffs' son, to apply ice to the injury, to call for medical assistance and to notify plaintiffs;

[ 17 ] WHEREAS , according to the evidence, there was sufficient supervisory staff in the gymnasium, at the time of the accident, to respect the ratio of one staff member per twenty (20) children [1] ; [ 18 ] WHEREAS , according to the evidence, school and childcare staff acted in a professional, responsible and competent manner, throughout the activity and afterwards, while plaintiffs' son was in their care; [ 19 ] WHEREAS plaintiffs had the burden of proof (arts. 2803 and 2804 of the Civil Code of Quebec ); [ 20 ] WHEREAS plaintiffs did not prove that school staff committed a fault; [ 21 ] WHEREAS the activity, in itself, was not dangerous; [ 22 ] WHEREAS the occurrence of an unfortunate accident does not, in itself, prove fault; [ 23 ] WHEREAS , furthermore, plaintiffs did not produce preponderant evidence with regards to the nature of the injury, both in terms of diagnosis and prognosis, the costs incurred (save and except for an amount of $571.00) and future costs, if any; [ 24 ] WHEREAS plaintiffs did not meet their burden of proof; WHEREFORE THE COURT HEREBY: DISMISSES plaintiffs' application, without costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing : September 25, 2012