“…Bees’ll buzz, kids’ll blow dandelion fuzz. And I’ll be doing whatever snow does in summer.
A drink in my hand, my snow up against the burning sand. Probably getting gorgeously tanned in summer” Gad, J. (2013) “In Summer” on Frozen [Original Motion Picture Soundtrack], Los Angeles, CA: Walt Disney Records.
It goes without saying that most parents would prefer to live out Olaf’s fantasy and sit and relax with a nice cold ‘frozen’ drink in their hand on a beautiful beach someplace watching their kids splash around in the water on a hot summer’s day. Unfortunately, the reality is most Ontario parents work during the summer and don’t have weeks on end of down time with their families. For many, summertime means signing up the kiddies for various sleep-away camps, day camps or other daytime activity programs often delivered through their municipality.
The first Ontario summer camp was founded in 1900. Today, there are over 400 accredited residential summer camps and a plethora of children’s day camps and programming available to children whether they live in Timmins or Toronto. Money is also not as great an obstacle as it once was either, since the Liberal Government introduced the Children’s Activity Tax Credit in 2010. Thanks to this tax credit, Ontario families [who meet the relatively lax criteria] can currently claim up to $541 in eligible expenses and get up to $53.50 back for each child under 16. You can also get up to $108.20 back for a child with a disability who is under 18. These amounts are adjusted each year for inflation.
Predictably, the majority of camps [day or residential; urban or rural] are designed for the same purpose or share a similar mandate when it comes to core values being taught. According to research, camps help children develop leadership skills and independence, but they balance that with an emphasis on creating friendships and an understanding of group dynamics. Specialty camps operate along the same lines, except they may focus on a particular religion or learning a specific skill, while some just encourage a healthy appreciation of the great outdoors.
Needless to say, liability is an issue when it comes to summer camps. Just like with daycares or schools, parents experience a certain amount of trepidation whenever they find themselves weighing the pros and cons of picking a particular camp or program over another, especially when it comes to sending their kids to residential camps hours away from them. Any experienced personal injury lawyer knows that parents can spend hours talking to their kids or camp coordinators about safety, and [yet] things can still go awry. That is why, legal professionals always advise parents to do their due diligence and make proper enquiries about the camps, programs or facilities they are entrusting their children to before registering them.
It is also wise for parents to carefully examine the ubiquitous recreational liability waivers camps and city programs often issue before signing them. According to Jardine Lloyd Thompson Canada Inc. [one of the nation’s largest public sector risk managers and private sector claims consultants], municipalities and camp programs prudently wish to limit their associated liability. To that end, they rely on waivers to shield them from any liability for a child’s injury.
Despite their standard use, not all waivers are legally effective and there are strict requirements that must be followed before they can be fully relied on. For a waiver of liability to have some teeth, it must release the municipality or camp from liability arising from the participant’s [i.e. your child] own actions and, [more importantly], from any negligent conduct on their part. Because courts have consistently held that participant’s rarely “willingly assume the risk” for someone else’s negligence, the liability waiver must specifically refer to ‘releasing’ the relevant parties from acts of its own negligence. The more inherent the risk in the activities which the waiver covers, the clearer the language must be to absolve said parties from acts of their own negligence. This is what’s referred to by legal professionals and insurance brokers as good “risk management practices.”
At the level of camp grounds or program facilities, there are a number of things a municipality or private camp could and should do to make the place safe for children, including regular inspections and proper maintenance of play structures, playing fields, water splash pads, sporting equipment, materials or any structure dealing with sanitation or waste disposal. It should also remove any immediate hazardous conditions or appropriately mark any unsafe conditions until proper repairs can be made. As far as human resources go, organisations should follow an established protocol when it comes to conducting the necessary reference or criminal background checks needed to vet staff that will be working with children.
That said, liability waivers aren’t ironclad, thus negligence claims can still be filed both under statute and at common law. Statute-wise, a case can be made for breaching Ontario’s Occupier’s Liability Act, 1990, especially if we’re talking facility safety. Under the Act, participating children hold the same status as contractual entrants, since their parents have paid so they can avail themselves of the promised services and supervision. A shoddy risk management policy which lacks proper procedures for ensuring the facility’s safety or the appropriate hiring practices required for recruiting teaching and supervisory staff can be grounds for a negligence claim. As per section 3 (1) of the Act “an occupier of premises owes a duty to take such care as in all circumstances of the case is reasonable to see that the persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” Subsection (2) of the Act is particularly germane for it clarifies that “the duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises [italics mine] or [italics mine] by an activity carried on the premises.”
Please note that the Wynne Government’s recently re-introduced Childcare Modernization Act, 2014 [whose passage is still pending] aka Bill 10 would not provide a statutory basis for a negligence suit. Despite the bill’s misleading title and the Minister of Education’s desire for [quote] “more responsive, high quality and accessible child care and early years system, which serves Ontario’s children and families”, subsection (9) of section 4 of the Act provides an exemption for nannies, babysitters, unlicensed daycares with five children under the age of 10, day camps, residential camps and other types recreational programs.
Also noteworthy is the inability of Ontario parents to sue under Bill 13 or the Accepting Schools Act, 2012. According to the bill’s provisions, the Act only covers publicly-funded public schools and denominational separate schools. So, even though a municipal program may be focussed on educating children on a particular subject or teach them a certain skill, they are not considered educational institutions under the terms set out in the Act. What’s more the Act doesn’t cover private schools which are run either as businesses or as non-profits, same as day camps or residential camps. As such, this makes Bill 13 a non-starter for any litigation.
Fortunately, the same cannot be said at common law. Thanks to the wealth of case law and precedents on the matter, any knowledgeable personal injury attorney can build a solid case for negligence should your child be grievously injured on a camp or city program’s watch. Consequently, the burden of proof for a negligence suit against a private day camp, residential camp or municipality resembles that required against a school. In order for the plaintiff to succeed, they must prove the following: that the camp or municipality owed the participating child a prima facie duty of care, that the applicable ‘reasonable’ standard of care was breached, the damage resulting from the breach and if the damage or loss was ‘foreseeable’.
In Ontario, contractual entrants like paying participants are owed a ‘duty of care’ by occupiers at common law as per the precedent set by the Supreme Court of Canada in Waldick v. Malcolm (1991), 83 D.L.R. (4th) 114 (S.C.C.). If counsel can show the injury sustained by the child resulted from the misconduct of the ‘occupant’ i.e. the owner of the camp grounds or the municipality running a facility and that the ‘occupant’ did not exercise ‘reasonable’ care to ensure that the child would be safe while on the property, than [depending on the nature and gravity of the child’s injury] the ‘occupant’ may be liable for general or special damages. Combine the standard established in Waldick with the 2-step Anns-Cooper test and you can prove ‘duty of care’.
As previously explained in our discussion about bullying and the tort liability of schools [ see” Sticks and Stones: Bullying and What Parents Should Know about the Duty of Care and Liability of Ontario Schools”, June 16, 2014] our common law recognises that educational institutions or facilities, schools officials and boards, as well as teaching or supervisory staff all owe a duty of care to children and must protect them from harm. As such, the teaching and supervisory staff of day camps, residential camps or municipal children’s programs are required to meet the ‘standard of care’ set by the Supreme Court of Canada in Myers v. Peel County Board of Education, (1981), 123 D.L.R. (3d) 1 (S.C.C). Like with the tort liability of schools, the plaintiff parents must show that the authority in question was responsible for their child’s health and safety while in their care and that the law can hold them accountable if they were negligent in maintaining the requisite ‘standard of care’ and the child suffers some kind of preventable or ‘foreseeable’ injury. As per the precedent set by the Supreme Court of Canada in Childs v. Desormeaux, (2006), 1 S.C.R 643, 2006 S.C.C. 18 “a positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and defendant establish a special link or proximity.” Once that link has been confirmed, the standard of care kicks in, dictating the degree of action the defendant must take to prevent the child from being harmed.
In Blondeau (Litigation Guardian of) v. Peterborough (City) (1998), 82 ACWS (3d) 207 (Ont. Ct. J.( Gen. Div.) the Ontario Court of Justice found the Peterborough Figure Skating Club liable for the injuries sustained by one of its young skaters. In its decision, the Court focussed on the ‘standard of care’ breached regarding the condition of certain areas of the skating rink and the ‘foreseeability’ of the girl’s fractured hip. They emphasized that when a municipal organization becomes aware of a potential problem that could cause the students to injure themselves, they must turn their minds to solving it and make a “good faith effort” to implement a system that will make potential injury preventable.
As previously stated, recreational waivers of liability aren’t bullet proof and the Courts have not been keen on allowing defendants to hide behind a volenti defence. The notion that any harm that befalls a minor at a summer camp comes as result of “risks willingly assumed” is not particularly popular with the Canadian judiciary. Waivers are an onerous contract which attempts to force a participant to voluntarily assume specific legal risks and courts continue to be understandably reluctant to ask minors to waive their basic legal rights. In Isildar v. Kanata Diving Supply,  OJ No 2406,  WDFL 2790, the Ontario courts devised a three- part test to determine the validity of a recreational waiver of liability: 1) did the plaintiff know what they were signing? 2) does the scope of the waiver cover the defendant’s conduct and finally: is the waiver unconscionable and [therefore] unenforceable? But, even in cases where the waiver was signed by a parent on behalf of the minor participant, the waiver may be declared invalid like it was in Wong v. Lok’s Martial Arts Centre Inc.,2009BCSC 1385
Not surprisingly, judges feel the same way about imputing injured minors with contributory negligence as per the test set out in Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 3 S.C.R. 1210, as they do about absolving summer camp owners and municipalities of any liability for injuries suffered by their young charges under volenti. At the end of the day, kids may be kids, but its adults who oversee and who are ultimately responsible for the health and well-being of the children under their care.
There is no doubt that working Ontario families rely heavily on all kinds of summer camps and municipal programs to get them through the summer months their children are out of school. Arguably, children benefit greatly from the friendships formed and skills developed under the watchful eye of the qualified teaching and supervisory staff hired and depended on. Unfortunately, camp isn’t always fun and games and young campers do get hurt. The last thing any parent wants is for their child to suffer. If your child has been injured at camp or while participating in some city program, the best course of action is to inform yourself on the risk-management policy and procedures in place at the organization in question. Please don’t be fooled by the teflon-like appearance of any recreational waiver of liability you signed and let a seasoned personal injury lawyer test its validity before giving up on seeking the compensation you and your child are lawfully entitled to.