The case of Boustany v. Singh, 2021 ONSC 3140, involves an accident at a pubic swimming pool. The defendant is the grandmother and caregiver of a child with significant autism. The child was at the swimming pool for a public swim and was under the care of the Halton District School Board. The plaintiff was also at the pool. The defendant was not at the pool.
The child made contact with the plaintiff, allegedly causing injury. The injured plaintiff and her spouse sued the grandmother. There was information to suggest that the grandmother modified the child’s prescribed medication dosage. This allegedly caused behavioural changes which were not communicated to the school board.
On a motion to determine a question of law, the grandmother sought a dismissal of the claim based on the argument that the law does not recognize a duty of care between her and the plaintiffs. Justice Gibson dismissed the motion.
A paternalistic relationship of supervision and control involving a vulnerable person can give rise to a duty of care to third parties. Justice Gibson held that the defendant and her grandson have a special relationship with a vulnerability aspect.
If the grandmother changed the prescribed medication dosage, she had a duty to inform the school board, especially when she knew that her grandson would be attending a public swimming pool.
Justice Gibson found merit to the argument that the defendant should have foreseen the risk to people at the swimming pool if the child was not properly medicated.
Justice Gibson held that it is not plain and obvious that the plaintiffs’ claim will fail. Therefore, the plaintiffs’ claim is permitted to continue.