'Outrageous disregard for safety'; Saskatoon parents launch lawsuit over autistic 5-year-old's drowning death

The parents of a five-year-old autistic boy who died after falling into a pond on his first full day of school are suing the Saskatoon school board and the city.

Saskatchewan's Advocate for Children and Youth issues report Tuesday calling death 'preventable'

Ahmedsadiq Hussein Elmmi is shown in this undated family handout photo. The parents of a five-year-old autistic boy who died after falling into a pond on his first full day of school are suing the Saskatoon school board and the city. Kindergarten student Ahmedsadiq Hussein Elmmi was found in a pond near Ecole Dundonald School on Sept. 11 after the morning recess. (Handout photo/The Canadian Press)

The parents of a five-year-old autistic boy who died after falling into a pond on his first full day of school are suing Saskatoon's public school board and the city.

Kindergarten student Ahmedsadiq Hussein Elmmi was found in a pond near Ecole Dundonald School on Sept. 11, 2017 after morning recess.

"We are having a very hard time. We've been grieving, really devastated," the boy's father, Hussein Elmmi, told CBC News Tuesday.

As long as those who neglected our son are still working there, I don't think they're doing the right thing. They must be serious.- Hussein Elmmi, the boy's father

Elmmi called for the firing of some staff, such as the educational assistant who lost track of their son in the minutes before he died.

"As long as those who neglected our son are still working there, I don't think they're doing the right thing. They must be serious," he said.

The coroner's office said last week the death was accidental and no inquest will be held. Saskatchewan's Advocate for Children and Youth issued a report Tuesday calling the death "preventable."

Teddy bears were set up at the pond where Ahmedsadiq Elmmi died, with the family now alleging that negligence played a role in his death. (Bridget Yard/CBC)

Allegations of negligence

A statement of claim filed on behalf of the boy's parents alleges his death was preventable and the school board was negligent.

The lawsuit also alleges negligence on the part of the city of Saskatoon for not properly fencing off the pond.

"The defendants, and Saskatoon Public Schools in particular, have shown outrageous disregard for safety and, in particular, the safety of Ahmed, special-needs children like Ahmed, and children in general," the statement of claim reads.

"Ahmed's behaviour of wandering/running is common in autistic children. But it is foreseeable that any child facing stress from attending a new school may decide to leave an unfenced playground and come to harm."

No statement of defence has been filed and the claims have not been proven in court.

The City of Saskatoon emailed a statement from City Solicitor Patricia Warwick. 

"The city extends its condolences to the Elmmi family. We are aware of the statement of claim filed today at the Court of Queen's Bench. We will carefully review and consider the statement of claim and respond in due course."

A report by Saskatoon Public Schools released last week said Ahmedsadiq was fascinated by water and the school worked hard in the months leading up to his arrival to ensure his safety.

"The school felt confident that they had a solid safety plan in place for Ahmed's arrival at school," the report said. "Unfortunately, in the end the plan was not executed to perfection."

An education assistant assigned to the boy held his hand at recess, the report said. Twice, Ahmedsadiq tried to free himself. On the third try, the report said, he lined up for the slide and recess supervisors lost track of him.

It all happened within five minutes, the report estimated.

The lawsuit launched by Ahmedsadiq Elmmi's family alleges negligence from the city, saying they did not fence off the pond properly. (Bridget Yard/CBC)

"The possibility of children with behavioural problems like autism being 'runners' is a known phenomenon within the education system," the lawsuit alleges on behalf of Hussein Elmmi and Fathiya Nour, the boy's parents.

"Saskatoon Public Schools takes on a duty of care when students are registered to be under its tutelage and it was foreseeable that Ahmed would come to harm if allowed to be outside without an adult holding his hand and closely monitoring him."

An imam who knows the boy's family told The Canadian Press his parents were upset that the coroner ruled Ahmedsadiq's death accidental.

"They (the family) are not prepared to accept what was given as an explanation by the coroner," Imam Ilyas Sidyot said.

The coroner's office recommended increased water safety training and that ponds be located away from schools in the future. It also suggested additional barriers for ponds near schools.

Earlier this month, a city committee proposed a wrought-iron fence be built to separate Ecole Dundonald School from the park where the pond is located. City council is to consider the recommendation next month.

Death was preventable, says advocate

The boy's death was "preventable," says Saskatchewan's Advocate for Children and Youth.

"This tragedy is multi-faceted," Advocate Corey O'Soup said Tuesday.

O'Soup released a 28-page report into the death, which refers to the boy by the pseudonym Angel.

O'Soup agreed the boy fled shortly after the EA let go of his hand, but several other things went wrong.

O'Soup said there were safety measures in place, but not all of them were followed. The boy was not wearing his red safety vest, which caused confusion once the search began.

The EA was not given all relevant information about the plan, and the safety plan wasn't properly communicated to all recess staff, the report said.

The school division "effectively placed the EA in a position of sole responsibility for (the boy) at recess, which contravened its own best practices," stated the report.

O'Soup termed the death preventable, but said the goal of his investigation is not to place blame. The goal is to prevent similar deaths in the future.

Ecole Dundonald School is not the only one with "external" safety issues such as ponds, O'Soup said. He encouraged a provincewide audit of any issues.

The report also focuses on "cumulative records." They chronicle a student's academic progress, diagnostic and other assessments, medical information, attendance and other information, according to the report.

These records need to follow a student from year to year, especially if the student changes schools. There isn't enough communication at the moment and no clear policy, especially for pre-kindergarten students, said the report.

"We are just asking them to be consistent," O'Soup said.

Saskatoon Public School officials said they will try to learn from O'Soup's report, and will do everything they can to improve safety.

"We will never forget what we have lost, and are committed to doing better," said Saskatoon Public School Board chair Ray Morrison.

Neither Morrison nor director of education Barry MacDougall would comment on the lawsuit, saying they have not yet received a copy.

with files from CBC's Jason Warick