Parental Liability For Schoolyard Bullying – Don’t Count on Your Insurance to Bail You Out

Historically, parents were not legally responsible for restitution for damages caused by their children. Accordingly, as recently as 1978, the Ontario Superior Court held that “[t]here is no liability upon parents resulting from a child’s torts based solely on the parent and child relationship unless negligence is established on the part of the parents.” Floyd et al. v. Bowers et al., 1978 CanLii 1465 (ON SC). Nonetheless, the Court in Floyd had no difficulty finding Bower’s parents responsible when Bowers shot Floyd with an air rifle, which Bower’s parents had left unlocked and accessible, along with ammunition. That holding was further supported by the fact that Bower’s parents had failed to train Bower in the safe handling of weapons.

In 2000, parental liability was expanded by the Parental Responsibility Act, 2000, SO 2000, c 4. Significantly, section 2 of that Act holds parents responsible for theft and vandalism done by their children, for amounts up to $25,000.00, unless parents can satisfy the court that they were exercising reasonable supervision over their children at the time and that they made reasonable efforts to prevent or discourage their child from engaging in such activities. A further defence is available when the activity that caused the damage was accidental. For an example of where parents have discharged their burden, see Shannon v. T.W. (Litigation guardian of), [2002] O.J. No. 2339. Additionally, section 10 of the Act creates a rebuttable presumption that parents are financially responsible for injuries and property damage (torts) caused by their children, unless they can show that they were exercising reasonable supervision and control over their child. Significantly, this section does not place financial limits upon parental liability.

The full impact of the changes brought about by the Parental Responsibility Act, are likely to be felt in the context of bullying and cyber bullying cases, following the recent court decisions in Unifund Assurance Company v. D.E., 2015 ONCA 423 (CanLII) and its companion case C.S. v. TD Home and Auto Insurance Company, 2015 ONCA 424 (CanLII). Those cases addressed when homeowner’s insurance provides coverage in the context of bullying lawsuits.

The Unifund and C.S. cases arose as the result of alleged schoolyard bullying at the Toronto Catholic District School Board. Evidently, when the Board failed to stop the bullying, K.S. and her mother N.R. brought suit, naming the Board, its employees, the children allegedly responsible along with the parents of a number of those children. The underlying lawsuit alleged that a number of children bullied, threatened and assaulted K.S., and that the parents of the students responsible knew of the bullying and failed to investigate or take steps to remedy or prevent the bullying, such as disciplining their children.

On being sued, two sets of parents forwarded the claims to their insurers, expecting their insurers to provide them with a defence (and to pay any claims) under their homeowner’s policy. In each case, the insurers declined, relying upon two exclusions in the homeowners policy, namely:

We do not insure claims arising from:

6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:

a) any person insured by this policy; or
b) any other person at the direction of any person insured by this policy;

7.

a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or
b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.

While the insurance companies were initially ordered to defend, those holdings were overturned on appeal. In Unifund, the Court found that exclusion 7(b) above was clear on its face, and applied to the claims made in the underlying lawsuit, such that no coverage was provided under the homeowner’s policy. In C.S. the Court went further, and held that insurance coverage was further excluded by the intentional injury exclusion at 6(a) above.

The above cases, together with the Parental Responsibility Act serve as a warning to parents that they may face serious financial consequences for their children’s bullying, whether done at school or elsewhere. Specifically, parents may be on the hook financially for bullying done by their children, especially where such bullying is continuous.

The above Unifund and C.S. cases further illustrate how important it is for plaintiff lawyers to give consideration to how causes of action are plead, lest insurance coverage prove unavailable. For instance, insurance coverage is much more likely available when injury results from an unintended accident, rather than an intentional act, which is in accord with general principals of insurance law.

Please review our School Injuries law page for more information.

If you have a question about schoolyard bullying or whether insurance coverage may be available for your claim, call Michael’s Law Firm at 647-495-8995 for a free consultation today. You can also contact our Ontario lawyers online.

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