A wake-up call has been served to organizations that supervise groups of children following a closely-watched ruling by the Quebec Court of Appeal that appears to have set a higher standard of care while emphasizing that non-pecuniary losses should be evaluated subjectively, without using a pre-established method of calculation or holding judges to be “prisoners of past findings.”

In a 30-page judgment that examined in depth the principles of contractual civil liability, the Quebec Court of Appeal upheld a lower court ruling that awarded the parents of a nine-year old boy who developed a serious neurological disorder following a ski accident $2.4 million in their capacity as tutors for their child’s future losses of income, non-pecuniary losses and management fees as well as $340,000 to the parents in their personal capacity.

“This is an important case because it sets forth principles governing not only ski hills but other types of organizations to whom parents entrust their children,” noted Robert Kugler of Kugler Kandestin, L.L.P. in Montreal who successfully represented the plaintiffs. “The Court confirmed that these organizations have a responsibility to take reasonable measures to ensure that the children are supervised while in their care and ensure as much as possible the safety of the children.”

Nearly eight years ago the plaintiffs enrolled their nine-year old son in a group ski lesson with seven other children at Mont Olympia, north of Montreal, managed by Mont Saint-Sauveur International Inc.(MSSI). On the last run of the ski lesson, one of the children began to cry and refused to continue skiing with the other children. The ski instructor, a 17-year old experienced skier who never supervised a group of more than four pupils, tried to cajole the frightened child down the hill but to no avail. The ski instructor told the other students to ski down the remainder of the run on their own in order to meet their parents, as arranged, at the base of the trail. The nine-year old boy, while skiing down, lost control and was found lying on the ground, without any skis, semi-conscious, and seriously hurt. He had sustained a broken jaw, punctured lungs, a cranial fracture, injuries to four lobes of his brain, and his heart had stopped for 18 minutes. After he underwent cranial and neurological surgery, the boy lapsed into a coma for nearly 13 days.

The trial judge held that both the ski school, Les Stations de la Vallée de Saint-Sauveur Inc. (Stations) and its parent company MSSI were responsible for the accident, having committed a fault under s. 1457 of the Civil Code of Quebec, which states that every “citizen who commits a fault which results in the injury to another person is liable to reparation for those injuries, whether they be physical, moral or material.” The judge of first instance also found  that there was a causal link between the wrongful behavior and the harm suffered by the boy, and held Stations and MSSI solidarily liable.

The appeal court confirmed the ruling, by first pointing out that the fault must be analyzed on a contractual basis — and not extracontractual. When the parents enrolled their child at the ski school, they entered into a contract for ski instruction with Stations, said Justice Nicholas Kasirer. Though the “principal obligation” undertaken by the ski school was to teach the boy to ski, the contract also “included an accessory obligation, by implication, to provide him with safe supervision” during the time the boy was under the care of the ski instructor, added Justice Kasirer.

“It is in the nature of the contract in respect of this potentially dangerous activity that the parties recognize that the teacher cannot be held to guarantee the safety of the pupil,” said Justice Kasirer. “Yet it is also inherent in the nature of the contract to provide lessons that the ski school is bound to take reasonable precautions to ensure that the lessons would be safe.”

Though the ski instructor was giving a group lesson, which does not call for the same degree of individual attention devoted to each student’s instruction or to each student’s safety, Justice Kasirer pointed out that “it is also fair to assume” that the contract concluded between the boy’s parents and the ski school “even in the absence of an explicit undertaking” included an obligation that the ski instructor would not abandon her pupils as she did and direct them to ski to the bottom of the hill unsupervised. “To say otherwise falls outside the reasonable expectations of both contracting parties for group ski lessons, especially in respect of children who are novice skiers,” said Justice Kasirer.

While describing the ruling as “well-reasoned” penned by a “very strong bench,” and concurring that it “makes sense” that the Court held that sport organizations have a duty of care “to make sure that all necessary precautions are taken” to ensure the safety of children, insurance lawyer André Legrand wonders nonetheless if the appeal court may have gone too far.

“The part that is somewhat surprising is that the Court holds that the expectations of the pupils and the parents are such that there must be constant supervision of all children,” said Legrand, a partner with Ogilvy Renault, who is a member of the editorial board of the Canadian Journal of Insurance Law. “The argument could have been made that because it is a group lesson, you get your money’s worth in the sense that you are not going to get the same attention —  and that these are sports where there is an inherent risk of bodily injury. But the Court stays away from that.”

Also of note is that the appeal court held that “great care” must be taken when evaluating non-pecuniary losses by comparing the severity of the injuries suffered by different victims, observed Jonathan Lacoste-Jobin, a Montreal lawyer who practices primarily in the areas of insurance law, commercial litigation and professional liability.

The appellants, while recognizing that the boy suffered a loss of enjoyment of life, objected “vigorously” to the amount of $250,000 that was awarded as disproportionate and out of step with the standards set for the award of non-pecuniary loss by the Supreme Court of Canada in Andrews v. Grand and Toy Alberta Inc. [1978 2 S.C.R. 229, Thornton v. Prince George School District No 57 [`978] 2 S.C.R. 267 and Arnold v. Teno [1978] 2 S.C.R. 287.

But the appeal court noted that one of the defining characteristics of non-pecuniary loss is that it is largely measured subjectively, and the “existence of a judicially-created scale” would wrongly suggest that the measure can be made objectively. Informed by the SCC’s ruling in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand [1996] 3 S.C.R. 211, the appeal court said that it is important to give “some consideration” to the conceptual approach to measuring loss based on an “appreciation of the objective seriousness” of the injury as part of the evaluation of non-pecuniary losses in Quebec civil law. The personal approach (stressing individualized sensibilities to pain and suffering) and the functional approach (emphasizing solace in awards) apply too.

“This balanced method advanced by the Supreme Court allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s situation,” said Justice Kasirer.

According to Lacoste-Jobin, this finding will make the assessment of non-pecuniary losses more challenging as it will render the “test more subjective.”

Legrand believes that this ruling, though based on civil law principles, will have an impact across the country. “My reading is that lawyers acting for plaintiffs across the country could refer to this case as being quite relevant to claims, particularly those with similar type of fact patterns,” said Legrand.

Originally published in The Lawyers Weekly.