Playground push leads to five years of litigation

SURREY – A playground shove during recess at a private school in South Surrey in 2008 set in motion an epic civil court battle involving a small army of lawyers and complicated legal issues that were still being sorted out in B.C. Supreme Court as recently as last month.

The lawsuit, Gu v. Friesen, dealt with a roughhousing incident involving three Grade 6 students at Southridge School on Nov. 21, 2008. The plaintiff, Jacqueline Gu, was 11 at the time.

She had been carrying her friend Elizabeth Tichelman piggyback when another student, Liam Friesen, also 11, pushed Elizabeth from behind. Jacqueline lost her balance, she and Elizabeth fell, and Jacqueline’s elbow was fractured.

Jacqueline’s litigation guardian, Bei Xin Gu, launched a lawsuit on her behalf, seeing as children can’t sue.

The lawsuit claimed Liam was negligent for causing the injury. Southridge was also sued for allegedly failing to provide adequate recess supervision and ensure the school ground was safe for the plaintiff, as required by Section 37 of the Occupiers Liability Act.

Liam’s parents, Leighton and Colleen Friesen, were also sued for allegedly failing to instruct their son in “proper behaviour.”

This in turned triggered third party claims by Liam and his parents and by Southridge, against each other.

It gets more complicated. For their part, the Friesens filed thirdparty notice against Elizabeth and her mom Tracy Tichelman, claiming Elizabeth knew, or ought to have known, that the activity she participated in – namely, piggybacking – was likely to cause injury to her fellow student.

Elizabeth’s mom, it was alleged, “failed to instruct her daughter to avoid such behaviour.”

The children testified three years after the fact, at a four-day-long trial in Vancouver in 2011, with Justice Terry Schultes presiding.

Schultes found Liam liable but found no basis to find his parents liable.

“Here the evidence was of appropriate efforts by Mr. and Mrs. Friesen to discipline Liam when required for any misbehaviour at home,” the judge noted. “There was no previous conduct by him at home or school that would have enabled them to foresee and act to prevent his negligent pushing of Jacqueline.”

Schultes also dismissed Jaqueline’s claims against Southridge, as well as the third-party claims. He didn’t mention any monetary amount or award in his reasons for decision.

Last May, the case was before Schultes once again. This time, the Tichelmans applied for an order of special costs against the Friesens, or an order giving effect to

their formal order to settle, by an award of double costs. Generally, the loser pays for the winner’s court costs.

The Friesens had offered to drop their claim against Tracy Tichelman in August 2011 providing she didn’t pursue costs against them but their lawyer stipulated that if Mr. and Mrs. Friesen were found liable, he’d argue that all of the parents should be. The Tichelmans declined the offer.

“In the same email the Friesens’ counsel advised that he was not inclined to discontinue against Elizabeth in view of her apology to the school principal for her conduct,” Schultes noted, in his Feb. 7 reasons for judgement on costs.

The Tichelmans had made an offer to settle with the Friesens in September 2011. They offered to waive costs in return for discontinuances against both mother and daughter, granted that the offer was accepted within seven days. Otherwise they wouldn’t waive their costs but rather would seek special costs at trial.

The Friesens eventually discontinued their third-party claim against Tracy Tichelman and didn’t pursue their thirdparty claim against Elizabeth Tichelman. Schultes declined to order double costs. Tracy Tichelman received party and party costs until the date the notice of discontinuance was filed. Elizabeth Tichelman received party and party costs for the whole proceeding.

“The Friesens have had substantial success in this application and are entitled to their costs with respect to it,” he added.

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