Q.B. A.D. 1994 No.354 J.C.P.A. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: DARRYL WILLOUGHBY, Litigation Guardian for ANGELA WILLOUGHBY, An Infant and EDITH LARSEN, HAROLD LARSEN, and THE BOARD OF EDUCATION OF THE PARKLAND SCHOOL DIVISION NO. 63 OF SASKATCHEWAN, ROBERT EARL KRAFT and MORGAN DRIVE AWAY INC. DEFENDANTS R. J. Lane for the plaintiff (applicant) J. A. Bailey for the defendants, Edith Larsen and Harold Larsen R. J. Rath for the defendant, The Board of Education of the Parkland School Division No. 63 of Saskatchewan FIAT ROTHERY J. February 18, 1998 This is an application pursuant to Rule 188 of TheQueen's Bench Rules of Court for a determination of thesepoints of law: 1. Whether the defendant, Edith Larsen is liablepursuant to s. 86(1) of The Highway Traffic Act,R.S.S. 1978, c. H - 3.1, for the personal injuriessustained by the infant plaintiff, AngelaWilloughby, or whether Edith Larsen is immune fromsuch liability by virtue of s. 228 [now s. 232] ofThe Education Act, R.S.S. 1978 (Supp.), c. E - 0.1[now The Education Act, 1995, SS. 1995, c. E - 0.2]. 2. In the event Edith Larsen is immune fromliability by virtue of s. 228 of The Education Act,whether the co-defendant, Harold Larsen, is liablepursuant to s. 86(1) of The Highway Traffic Act forthe infant plaintiff's personal injuries. The parties proceeded on the following agreed statement of facts: 1. The infant plaintiff, Angela Willoughby, was student at Canwood School, school operated by the defendant, the Board of Education of the Parkland School Division, No. 63 of Saskatchewan. 2. On or about May 20, 1993, the infant plaintiff was passenger in an automobile driven by the defendant, Edith Larsen, owned by the co-defendant, Harold Larsen. At all material times, the automobile was not stolen or otherwise wrongfully taken out of the possession of Harold Larsen, nor out of the possession of any person entrusted by him with his care. 3. The said automobile was involved in collision with another vehicle owned by the defendant, Morgan Drive Away Inc., and operated by the defendant, Robert Earl Kraft, at or near Saskatoon, Saskatchewan, resulting in the infant plaintiff's bodily injury, loss and damage. 4. The aforesaid collision and the infant plaintiff's bodily injury and resulting loss and damage was caused by the negligence of the defendant, Edith Larsen. 5. The aforesaid motor vehicle accident occurred while the infant plaintiff was being transported to recreation area on field trip, approved by the defendant School Board, and Edith Larsen was the teacher within the meaning of the provisions of The Education Act, S.S. 1988 89, c. 0.1. The plaintiff discontinued its action against both Robert Earl Kraft and Morgan Drive Away Inc. Counsel for the plaintiff supports the position enunciated by counsel for the Board of Education. The Board argues that Edith Larsen is liable for the plaintiff's personal injuries. If she is not liable, Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, is liable for the plaintiff's injuries. cannot find in favour of the Board. Edith Larsen is immune from liability byoperation of The Education Act. Harold Larsen, as theowner of the motor vehicle, is only liable to the sameextent as the driver. That is, Edith Larsen's immunity extends to Harold Larsen. STATUTORY PROVISIONS Section 86(1) of The Highway Traffic Act states: When any loss, damage or injury is caused to person by motor vehicle, the person driving it at the time is liable for the loss, damage or injury if it was caused by his negligence or improper conduct, and the owner of the motor vehicle is also liable to the same extent as the driver, unless at that time the motor vehicle had been stolen from the owner or otherwise wrongfully taken out of his possession or out of the possession of person entrusted by him with its care. Section 228(1) of The Education Act (basically the same as the present s. 232(1)) states: Where board of education, principal or teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of pupils shall be liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities. Section 91 (bb) [now s. 85(1)(bb)] of The Education Act requires the board of education to: keep in force policy of insurance for the purpose of indemnifying: (i) the board and its employees in respect of any claim for damages to property or for personal injury or death arising from any program, activity or service authorized or provided by the board, or from any approved activity mentioned in section 228, and the board may, in its discretion, also indemnify parents and citizen volunteers; (ii) the board and teachers employed by the board in respect of any claim for damages arising from the performance of duties and functions of teachers under this Act that are required or approved by the board; (iii) the division in respect of any claim for damages arising out of arrangements of the board for the transportation of pupils to and from school or to and from other places for the purpose of engaging in activities authorized by ANALYSIS Counsel for the school board argues that s. 86(1) of The Highway Traffic Act and s. 228(1) of The Education Act are in conflict. The Highway Traffic Act imposes liability on negligent driver, but The Education Act grants teacher immunity from liability. Counsel for the school board submits that the conflict may be avoided by applying the statutory interpretation principle of generali specialibus non derogant. This principle of statutory interpretation explained in Sullivan's text, Driedger on the Construction of Statutes (3d) (Butterworths Toronto) at pp. 186-187 refers to R. v. Greenwood (1992), 1992 CanLII 7750 (ON CA), O.R. (3d) (Ont. C.A.) at p. 7: The maxim generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of general statute must yield to those of special one Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but as providing an exception to the general By treating the special statute as creating an exception to the general, the two statutes are then brought into harmony. Counsel for the School Board argues that, in thiscase, The Education Act is the general statute dealingwith teacher's liability and immunity in a general way. Oppositely, The Highway Traffic Act is specifically directed to liability arising from motor vehicle negligence. Therefore, counsel submits the specific creates an exception to the general, and negligent teacher/driver, even acting within the scope of s. 228 of The Education Act, is liable for the injury to the plaintiff pupil. I cannot agree with this analysis. First, there isno apparent conflict between the statutes. When they are read together, the legislation provides that negligent teacher/driver is granted immunity from liability if the teacher has acted within the scope of s. 228 of The Education Act. Even if there were an apparent conflict between the two statutes, careful analysis would lead one to conclude that The Highway Traffic Act is the general statute, governing liability of all drivers of motor vehicles. The Education Act specifically provides an immunity toteacher's liability when acting within the scope of s.228 of The Education Act. The immunity only applies toteachers and principals. (See Thompson v. The Board of Education of the Eston-Elrose School Division No. 33 et al (1997), 1997 CanLII 11450 (SK QB), 154 Sask.R. 182 (Q.B.). Section 91(bb) [now s.85(1)(bb)] of The Education Act requires that the school board maintain insurance to indemnify the board and its teachers acting within the scope of their duties. This further illustrates that the teacher's immunity is an exception to the general liability provisions of The Highway Traffic Act. TheEducation Act ensures that the school board is liable forany negligence of its teachers and principals and thatplaintiffs have recourse for negligence against theschool board and its insurer. The injured plaintiff isnot denied a party to sue for negligent operation of avehicle. The party is the school board, not the teacher. On the basis of this analysis and the agreed facts,I find that Edith Larsen was acting within the scope ofher duties under s. 228 [now s. 232] of The EducationAct. She is therefore immune from liability in thisaction commenced by the plaintiff pupil. Secondly, find Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, to be immune from liability as well. This conclusion is based on the wording of s. 86(1) of The Highway Traffic Act itself. Counsel for Harold Larsen submits that the case of Neault v. Pollard (1996), 1996 CanLII 6967 (SK QB), 140 Sask. R. 26 (Q.B.) is on point and ought to be followed. Neault is authority for the principle that because The Workers' Compensation Act restricts the right of action that worker might have against co-worker for injuries sustained while acting in course of employment, the wording of s. 86(1) of The Highway Traffic Act extends that restriction to the owner of the motor vehicle involved in the accident. Counsel for the school board argues that the Neault case is distinguishable on its facts, because the parties to that Rule 188 application agreed that the plaintiff and driver were both "workers" as defined by The Workers' Compensation Act. That distinction is illusory. The parties to the Neault case agreed The Workers' Compensation Act applied. The parties to this application agree that Edith Larsen falls squarely within the provisions of s. 228 of The Education Act. That being so, because s. 86(1) of The Highway Traffic Act provides that the "owner of the motor vehicle is liable to the same extent as the driver", the teacher's immunity extends to the owner. Counsel for the School Board asked me to consider the Thompson case, supra, and McKay and McKay v. Board of Govan School and Molesky (1967), 1967 CanLII 430 (SK CA), 60 W.W.R. 513 (Sask. C.A.) as authority for maintaining liability against the owner of the motor vehicle. Those two cases are of no assistance. They deal solely with the interpretation of The Education Act and the extent to which the school board remains liable, even though the teacher might be immune from liability. find the reasoning in Neault to be directly on point. Just as The Workers' Compensation Act and The Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, The Education Act extends the same immunity to the owner as it does to the driver by operation of the same s. 86(1) of The Highway Traffic Act. For the reasons stated, find Edith Larsen's immunity under The Education Act extends to the owner of the motor vehicle, Harold Larsen. Because Edith Larsen is not liable to the plaintiff pupil, neither is Harold
FIAT. An application pursuant to Rule 188 for a determination of whether the defendant was liable pursuant to s86(1) of the Highway Traffic Act for the personal injuries of the infant plaintiff or was immune from liability by virtue of s228 [now s232] of the Education Act. The second point of law to be determined was whether the co-defendant as car owner was liable if the driver was found to be immune from liability. The motor vehicle accident occurred while the infant plaintiff was being transported during a field trip, approved by the defendant school board, and the defendant was the teacher. HELD: 1)The teacher/driver was acting within the scope of her duties and was immune from liability by virtue of the Education Act. 2)The owner was only liable to the same extent as the driver. The reasoning in Neault was directly on point. Just as the Workers' Compensation Act and the Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, the Education Act extends the same immunity to the owner as it does to the driver by operation of s86(1) of the Highway Traffic Act. 3)There was no apparent conflict between the statutes. When read together, the legislation provides that a negligent teacher is granted immunity from liability if the teacher has acted within the scope of the Education Act. The Traffic Act is the general statute, governing liability of all drivers. The Court did not agree with the School Board's analysis that the Education Act was the general statute. 4)The injured plaintiff was not denied a party to sue for negligent operation of a vehicle as he had recourse against the school board and its insurer. The immunity under the Education Act only applies to teachers and principals.