On February 7, 2011, the Ontario Superior Court released a decision on a motion that was made for a summary judgment in a claim by the family of a deceased student, Jordan Gallant, and Thames Valley District School Board (the 'Board'). The decision in this motion has left the door open for family members of students who have committed suicide to seek to hold school boards and teachers personally responsible for the deaths of students.

The Court heard a motion by the Board and individual teacher to have the action for damages brought against them by the parents of a student who committed suicide dismissed. For this motion, the Board’s main argument was that public policy did not permit survivors of a person who has committed suicide to benefit from the death.

The original action had been started by the parents of Jordan Gallant following his suicide. The parents’ action alleged that Jordan’s teacher had notice of his state of mind prior to his suicide, but did not act.

Jordan had emailed his teacher a writing assignment in which he stated: “I just want to kill myself; I want it to be painless (*the ink from the pen bleeds into the lined paper*). I don’t have access to a gun so the next best way would seem to be to hang myself.” His assignment went on to express the strong feelings he was experiencing as a result of a failed attempt at a relationship with a girl four years his senior.

A handwritten draft of this essay, which apparently did not contain the same level of detail as the final version sent to his teacher, was discovered on May 13, 2008 by Jordan’s mother, who decided to discuss this essay with her son, but accepted his explanation that it was for a school project and apparently resolved to revisit the matter the following day. This however, would unfortunately be too late, as the following day Jordan committed suicide.

Jordan’s mother, after seeing the final version of the essay as received by Jordan’s teacher, alleged that if she had been made aware of this final version, she and her husband would have engaged their son in a serious discussion, which would have prevented his suicide.

The same day as Jordan’s suicide, the Director of Education for the Board advised the Trustees via a memorandum that Jordan’s school had a special sensitivity to the issue of suicide following the suicides of two students of that school the previous year and that the Board and the community had been involved together in suicide awareness seminars held at the school.

The Board’s website contained information for employees about the prevention of suicide. In a bulletin called “Helping a Suicide Student” it particularly stated that “[i]t is important for every teacher and counsellor to be able to: a) recognize warning signs b) make a tentative assessment of risk; and c) know where to refer the student for help”. The bulletin identified expressions of suicidal thoughts and hints of destructive thinking as warning signs of suicidal risk. Staff were also advised to contact a student’s parent if the student showed any level of risk,

Jordan’s parents alleged that upon reading the short story, Jordan’s teacher should have complied with the bulletin by notifying either them or anyone else of its contents. The Board argued that the short story that Jordan submitted to his teacher was simply a work of fiction and that there was nothing in the contents of the story that would have alerted her to the possibility that Jordan was contemplating suicide. The Board also took the position that it was a rule of public policy that survivors of a person who commits suicide are not entitled to benefit from the suicide.

In order to succeed on their motion for summary judgment, the Board had to meet the test that there was no genuine issue of material fact requiring trial. After considering the facts, however, the Court held that the Board had not met this burden, as neither of the Board’s representatives, nor the teacher had filed an affidavit in support of the motion, thus failing to put ‘their best foot forward”. Because the Court had no evidence with respect to how the teacher discharged her duty of care to Jordan upon reading his essay, the Court held that the issue of whether she had or had not discharged her duty of care owed to Jordan must be determined on a complete evidentiary record.

With respect to the Board’s argument that the parent’s claim could not proceed because public policy prohibits survivors of a person who commits suicide to benefit from the suicide, the Court held that the scope and application of the public policy rule would also be best determined on a complete evidentiary record, as opposed to a summary judgment motion. The Court indicated that the public policy supporting the rule prohibiting survivors to profit from suicide may have evolved.

The issue of whether the teacher knew or ought to have known that Jordan was contemplating suicide will be determined on a full consideration of all the evidence. Should the matter proceed to trial, it is possible that the Board may be found liable for the teacher’s failure to try to prevent Jordan’s suicide.