The solar eclipse of April 8 is fast approaching and several schools in Quebec have decided to close their doors that day, saying they fear being able to guarantee “the safety of the students.” What is the extent of schools’ obligation to ensure their safety? And if they remain open, are they at risk of prosecution if a child’s eyes are damaged during school hours? The duty asked these questions to two lawyers.
Mariève Lacroix, a specialist in civil liability and full professor in the Civil Law Section of the Faculty of Law at the University of Ottawa, points out that actions for damages against schools are not frequent, but that there are some “punctually”, especially in cases where a child has been injured during a sporting activity.
When children are at school, their care and supervision are temporarily entrusted to teachers and supervisors, explains Me Simon Paransky. If a child is injured while in their care, a school can be held liable and forced to pay damages if it was negligent, for example in its duty to provide a safe environment, adds the litigation lawyer at McMillan LLP.
“Can”, because it is not automatic, he explains, while recalling that: “each case is a specific case” and depends on the facts and circumstances.
To win a case against an educational establishment, you must first prove that it committed a fault.
Generally speaking, a school can prove that this is not the case by demonstrating that it gave appropriate safety instructions to students about the activity in question, that it adequately supervised them, and that it provided secure facilities (for example, fences around the schoolyard).
This goes for observing a solar eclipse. The school can, for example, prove that it provided students with protective glasses, that adequate safety instructions were given to them, and that there were sufficient staff to supervise them.
The Ministry of Education initially recommended “avoid holding outdoor activities […] from 2:11 p.m. to 4:45 p.m. But on Monday, Minister Bernard Drainville corrected the situation and invited schools to remain open and maintain their outdoor activities during the solar eclipse of April 8, provided “they place safety above all else.”
Monitor students
If a parent alleges that their child damaged their eyes while watching the eclipse and that supervision was not sufficient, the latter will be closely scrutinized. A court could assess the supervisor-to-student ratio and how educators supervised the students, given the circumstances.
Surveillance is a legal obligation “of means and not of results”, however explains Professor Lacroix, which means that the school must demonstrate that it has acted as a “prudent and diligent” school. In short, she is not required to ensure compliance with the instructions by each of the students every second during an eclipse observation activity, she adds.
Obviously, a child can have an unpredictable reaction and escape supervision. The school could still avoid a monetary fine by demonstrating that it took “all reasonable measures” in the circumstances, underlines M.e Paransky.
The parent who wants to sue a school must also prove that the child’s vision was damaged by watching the eclipse — and not by any other reckless activity before or after April 8, says Mariève Lacroix. And this can be difficult, because eye damage from an eclipse doesn’t appear immediately. The cause and effect relationship is obviously easier to demonstrate when a child breaks his arm when the stands at a school stadium collapse, for example.
Fear of prosecution
“There is always the fear of prosecution,” notes Professor Lacroix. “It often explains decisions that are made. » It is possible that schools decided to close that day after realizing that they perhaps did not have the staff in place to monitor students, she comments.
The risk of legal action is “never zero”, declares for his part Me Paransky. Schools and school boards “have a bit of this analysis. [Elles] see a certain risk that at least one child will not listen to instructions” and damage their eyes. If the school closes, then the risk is “zero”.
Without forgetting this reality: a person, even if he or she does not have a case, can take legal action. And even if the school is released from all liability at the end of a trial, it will still have a lawyer’s bill to pay, underlines Me Paransky.