Bill 39, Concussions – Is it Everything It’s Cracked Up to Be?

Nadya Tymochenko, Toronto

On March 6, 2012, the Ontario Liberal Government introduced legislation amending Ontario's Education Act to add provisions regarding concussions.

Concussions have received increasing media attention due to significant issues with former hockey and football players in Canada and the United States.  There has also been research suggesting that concussions sustained by children can have more significant impacts than those sustained by adults.  Certainly, it is known that concussions sustained by children may have impacts on their brain health later in their life.

Given this background, it might be presumed that the amendments to the Education Act would be beneficial, but as with many legal issues the answer appears to be “it depends”.

The proposed legislation amends the Education Act to provide the Minister with powers to establish and require school boards to comply with polices and guidelines regarding head injuries and concussions. 

The policies and guidelines can address issues such as when a student who is suspected of having sustained a concussion is to be removed or prevented from further physical activity.  Most school boards do not currently have staff with such expertise, but rather retain such expertise on a limited and as needed basis for specific inter-scholastic sports. 

Significant liability issues may arise if school board staff members are mandated by legislation to have the expertise to identify a concussion and respond.  Also, school boards might find it difficult to encourage staff to volunteer, if they must commit to additional training and responsibilities.

The legislation also allows the Ministry of Education to issue policies and guidelines to address the return of students following a concussion.  It is likely that a doctor’s certificate will be required before students will be permitted to re-join their teammates and classmates in physical activities.  However, many students cannot afford the expense of such a certificate.  Moreover, such certificates may be difficult for parents to obtain, if they must take time off work to do so. 

Perhaps more significantly, the legislation provides that the policies and guidelines may address

the responsibilities of board employees, classes of board employees, or other persons who are involved in intramural or inter-school athletics or any part of the health and physical education curriculum in relation to the prevention of head injuries, the identification of symptoms of concussions and the management of concussions.

This provision suggests that administrators, teachers and perhaps volunteers may be responsible for the prevention, symptom identification and management of concussions.  The training required to ensure that such responsibilities are fulfilled could be significant.  Without appropriate training, liability issues for school boards could be significant, and may be significant even with appropriate training.

The final provision of interest is the one that limits the personal liability of school board employees and volunteers acting in good faith “and in accordance with the Act, regulations and with any policies and guidelines made under this section”.

Generally, employees who have acted negligently in a student matter are protected from personal liability by the school board’s insurance and as a result of the legal principle of vicarious liability, even when they fail to follow policies and guidelines, provided that they have acted in good faith and in the course of their employment and provided that their actions are not wilful or grossly negligent.  Does this provision change the application of vicarious liability?   Could it impact whether or not insurance providers will cover employees?

We will be following this legislation and the significant issues it raises that are important to educators, and we invite you to continue to follow the progress of Bill 39 with us, as we report on it in our Education Law Blog.

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