2016 QCCQ 4844, 2016 QCCQ 4844

Masityyajurima c. Commission scolaire Marguerite Bourgeois 2016 QCCQ 4844 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146699-154 DATE: May 17, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ CAROLINE MASITYYAKURIMA for the minor child Phillip Matombo and CAROLINE MASITYYAKURIMA Plaintiff v.

COMMISSION SCOLAIRE MARGUERITE BOURGEOIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing the defendant school commission, in damages, on behalf of her son Phillip, who is a minor, and on her own behalf. [ 2 ] In her amended motion, plaintiff alleges and concludes as follows: "1.

The 3 rd of November 2011, the Plaintiff's eleven (11) year old boy Phillip Matomabo participated in a soccer outing with his school Bois Franc Aquarelle part of the Marguerite Bourgeois School Board; 2. During the soccer break, Phillip Matomabo was pushed and shoved by ten of his pears until he fell to the ground, as reported in the Rapport préliminaire d'événement submitted as exhibit P-1; 3. Phillip Matomabo hit his head on the ground, was severely injured, and suffered from a concussion; 4. The people supervising the soccer game were negligent in their intervention during this event; 5.

If the people supervising the soccer game had intervened in due time, the minor child Phillip Matomabo would not have suffered from a concussion; 6. The minor child Phillip Matomabo still suffers from the impact of this concussion; 7. In this regard, the minor child Phillip Matomabo has symptoms, including severe headaches, nausea, lack of concentration, etc.; 8. The minor child Phillip Matomabo is being followed by a medical doctor, who has documented the impact of the concussion on the minor child. 9. The plaintiff also suffered from stress and depression following this event.

FOR THESE REASONS MAY IT PLEASE THE COURT TO: ORDER the defendant to pay the plaintiff the amount of 14,500 $ with interest at the legal rate, plus additional indemnity provided by law to accrue from the date of the notice sent by the defendant, refusing to recognize their responsibility on October 6 th , 2014; […]" [ 3 ] The Court heard several witnesses: plaintiff, her son, Denis Lafortune, Jean-Claude Goulet, Brahim Saci and Natascha Bacher. Plaintiff filed exhibits P-1 to P-10, and defendant filed exhibits D-1 to D-4.

[ 4 ] According to the preponderance of evidence, it does not appear that, on November 30, 2011, Phillip "was pushed and shoved by ten of his peers until he fell to the ground". [ 5 ] The witnesses who were present, including Phillip, clearly stated, at trial, that he fell as a result of his friend "Jesus" grabbing his arm in a celebratory fashion, as he had just scored a goal. It was then that Phillip apparently lost his balance and fell to the ground.

According to Phillip, another of his friends fell on top of him, and somewhere in this mêlée of excitement, he hit his head on the ground. [ 6 ] This was clearly an accident, which took place within the confines of a soccer match and in no way resembles the allegations set out in plaintiff's application. [ 7 ] Of course, school staff had an obligation to adequately supervise the students during the recess period, which is when the match and the subsequent accident occurred.

Article 1460 of the Civil Code of Quebec creates a presumption of liability on the school's part. The onus was therefore on defendant to prove that school staff acted as prudent and diligent persons would, in order to rebut this presumption. [ 8 ] The supervision schedule, which was filed as exhibit D-1, was followed at this time. [ 9 ] Saci, the physical education teacher, was present at the time, and was supervising the game. [ 10 ] When Phillip, a good soccer player, fell, Saci went right over to him and the two above-mentioned friends. Phillip seemed fine. He got up and walked to class on his own.

Once in class, he started to feel unwell, and was immediately taken to the infirmary. Within minutes, assistant principal Bacher came to see how Phillip was feeling and doing, called an ambulance and stayed with him until he was taken to the hospital. [ 11 ] Both Saci and Bacher explained to the Court that the students are rigorously and systematically informed and reminded of the rules they must follow at school ("Code de Vie" exhibit D-2 and "Règles de sécurité au soccer et au basketball" exhibit D-4).

These rules are also posted in various locations throughout the school. [ 12 ] The day after the accident, Bacher met with all the students who were present when Phillip fell. She was able to ascertain that he was not pushed down to the ground. He fell, as above stated, as a result of a hearty congratulatory gesture by his friend Jesus. Bacher took the opportunity to "les sensibiliser à ce genre de célébration". [ 13 ] Bacher also informed the Court that, after the accident, Phillip was able to gradually resume his physical and cognitive activities.

In fact, in grade 6, Phillip did better than he had ever done in the past and he passed his final exams ("épreuves du ministère") brilliantly. [ 14 ] As stated in Laperrière c. Commission scolaire des Premières Seigneuries (École La Passerelle) : [1] " [88] Toute activité comporte des risques et les activités sportives ont les leurs.

Le dommage est dû à un accident provoqué par un instant d’inattention de la part de la victime à un très mauvais moment dans le temps, soit celui de l’élan de sa consoeur." [ 15 ] As in the above case, this is a case where there was adequate and reasonable supervision, and where the school enforced the existing rules of safety to protect the children. [ 16 ] In the present matter, based on the preponderance of evidence, the Court is unable to conclude that the school and its staff acted in a negligent fashion.

On the contrary, the evidence shows that school staff acted as "un parent prévoyant et prudent", [2] during the recess period when this soccer game was taking place, at the time of Phillip's fall and thereafter, until such time as he was taken to hospital. [ 17 ] The Court also wishes to reiterate the following principles: "[32] En substance, l’enseignant qui surveille des élèves doit les protéger contre les dangers normalement prévisibles en exerçant une surveillance adéquate.

Il n’est pas tenu de leur éviter le moindre risque possible ni de prévenir les comportements insolites ou inattendus. [33] Quant à l’encadrement adéquat des activités sportives, les auteurs Baudouin et Deslauriers précisent: Pour les sports, la preuve que des instructions ont été données sur la façon de jouer et que des mesures de sécurité adéquates ont été prises pour éviter les accidents suffit à valoir une exonération (références omises.) (…) [34] Tout est affaire de circonstances. […] [44] Cela dit, en se situant au moment où l’accident est survenu, force est de conclure qu’il n’était pas juridiquement « prévisible », c’est-à-dire qu’il n’entrait pas dans la sphère de ce qu’une personne raisonnable aurait normalement dû prévoir et prévenir grâce à des précautions additionnelles. […] [48] Les enseignants n’étaient pas tenus d’empêcher cette activité en raison d’un risque « envisageable » de blessure à la tête, car ils n’étaient pas tenus d’assurer aux élèves une sécurité parfaite, mais uniquement une sécurité « adéquate » eu égard aux circonstances. [49] Somme toute, l’accident malheureux dont le demandeur a été victime constituait un risque inhérent à la pratique de l’activité. [50] En effet, ses blessures sont imputables à la conduite « envisageable » d'un élève ne respectant pas une consigne de sécurité adéquate

alors que l’activité était convenablement supervisée causant un préjudice « envisageable », mais improbable." [3] [ 18 ] Again, Phillip's fall was the result of an unfortunate and unforeseeable accident, and was not the result of negligence, be it inadequate enforcement of safety rules, inadequate supervision during recess and the game or inadequate care after the fall. [4] [ 19 ] Given the absence of fault, there is no need to address the issue of damages. [ 20 ] Nonetheless, the Court wishes to add that the alleged damages were not proven, given, inter alia , the absence of a medical expertise with regards thereto. [ 21 ] The Court also wishes to mention that there may have been other explanations for some of Phillip's symptoms (social work referral, exhibit P-2, pages 48-49), other than the fall which occurred on November 30, 2011. [ 22 ] Given the evidence and absence of fault or omission; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application, without costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: March 22, 2016