Boustany v. Singh, 2021 ONSC 3140 (CanLII)

Guest Author: Daniel Berman, Roger Foisy PC

Full Endorsement

The elements of the law of negligence are the foundation for any tort claim. In a recent Ontario Superior Court decision, Boustany v. Singh, Justice Gibson explored the initial duty of care element in the law of negligence within the context of a Rule 21.01(1) motion.

The primary issue in this decision was whether the accepted duty of care between a caregiver/loco parentis could be extended to an injured third party as a result of that care, even if the caregiver was not physically present during the incident in question.

The facts of this case are noteworthy: The Defendant caregiver was the grandmother of a severely autistic 17-year-old grandson who required constant supervision. In addition to being his primary caregiver, the grandmother was her grandson’s sole contact with his School Board and was responsible for administering his medication. On the day of the subject incident, the grandson was at a public pool during a school trip when he ran across the public pool floor and pushed the Plaintiff who sustained injuries.

Although the Plaintiffs did not initially issue a claim against the grandmother, the Statement of Claim was amended when the Plaintiffs received previously undisclosed information from the School Board, suggesting that the grandmother had reduced the dosages of her grandson’s prescribed medication and did not communicate this change to the School Board in or around the time of the incident. 

The Defendant caregiver sought to strike the claim against her under Rule 21.01(1).

Position of the Defendant
The Defendant argued that because the law does not explicitly recognize a duty of care between caregivers and the injured third party Plaintiff, it is necessary to conduct an Anns/Cooper test. Under stage 1 of the test, the Defendant argued that the relationship between the caregiver and her grandson was not proximate because she was not physically present and supervising her grandson during the time of the incident. Further, the Defendant submitted that the caregiver could not have reasonably foreseen that the care for her grandson would result in all the adults responsible for his care to lose control of him and lead to the incident.

Alternatively, the Defendant submitted that under stage 2 of the test, public policy discourages caregivers being liable for the actions of those under care when the caregiver is not physically present, because doing so would impose an unfair burden and disincentive on caregivers from assuming such a role.

Position of the Plaintiffs
The Plaintiffs submitted that motions to strike under Rule 21.01(1) are decided upon the ‘plain and obvious’ test. The SCC in Hunt v. Carey Canada Inc. set out the rationale for this test:

…assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?…if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat“.

Further, citing the ONCA in Law Society of Upper Canada v. Ernst & Young, the Plaintiffs submitted that “matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of proceedings.”

Based on the factors outlined by the SCC in Chartier v. Chartier, the Plaintiffs argued that the Defendant was not only a caregiver to her grandson, but acted in ‘loco parentis’. In doing so, the Plaintiffs cited additional case law supporting the already recognized duty upon parents to supervise and control the activities of their children and prevent foreseeable damage to others.

Referencing the SCC in Childs v. Desormeaux, the Plaintiffs noted that the parent-child duty of care of supervision and control rests on the vulnerability of the child, and in certain circumstances a parent may owe a duty of care to injured third parties. Within this context, the SCC in Childs concluded that it is “defendant’s material implication in the creation of risk or his or her control of a risk to which others have been invited” that can impose a positive duty to act with respect to third parties. For example, a duty of care might appear in the case of a parent who has assumed control of a vulnerable person and creates a situation where the parent has an enhanced responsibility to safeguard against risk.

Lastly, the Plaintiffs cited the recent SCC decision of Rankin’s Garage & Sales v. JJ where the Court supported the proposition that a parent may owe a duty of care to third parties injured by a minor even when not physically present. In Rankins, the mother was found liable for the negligence of her impaired and unlicensed son and friend who stole a vehicle from a commercial garage and injured a third party.

Therefore, the Plaintiffs submitted that because the grandmother was acting as the caregiver/loco parentis of a very vulnerable plaintiff, she had a duty to prevent foreseeable damage to others. By allegedly changing the prescribed medication dosages to her grandson and not informing the School Board of those changes, the caregiver may have created a risk to which others were invited.

Justice Gibson dismissed the Defendant’s motion to strike under Rule 21.01(1) and agreed with the Plaintiffs’ assertion that the Defendant caregiver had a duty to ensure that her grandson did not pose a risk to the public.

Since the caregiver was the primary contact for her grandson with the School Board and had an obligation to provide any updates or changes to his medication, Justice Gibson found that she had a duty to inform the School Board of that change, particularly when she knew he was attending a public swimming recreational activity.

Under stage 1 of the Anns/Cooper test, Justice Gibson held that there was an “apparent connection of the failure to take care to the type of harm caused to persons in the plaintiff’s situation.” On its facts, the SCC in Rankin’s and Childs “support the proposition that parents or caregivers may owe a duty of care to injured third parties for the negligent conduct of a vulnerable child, in appropriate circumstances.”

Justice Gibson also did not accept the argument advanced by the Defendant under stage 2 of the Anns/Cooper test that extending her duty of care to the Plaintiffs would set a dangerous precedent and create unlimited vicarious liability for a caregiver of a person under a disability. Justice Gibson held that the facts will be different for each case, and the case at hand included specific circumstances that “do not lend themselves to extrapolation on such an indiscriminate and unbounded basis as asserted by the defendant.”

The decision in Boustany affirms that striking an action under Rule 21.01(1) is a high threshold to reach. For Rule 21.01(1)(a) motions with a duty of care analysis, the ‘plain and obvious’ test discourages actions from being dismissed at an interlocutory stage unless there is clearly settled case law demonstrating that no duty of care can arise in the appropriate circumstances.

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