By Marcel Strigberger | April 16, 2026

911. No, not a distress call. Just the age of the parties in a recent Alberta Court of Justice case, Robinson v. Fellin, 2026 ABCJ 2.

Nine-year-old Dominic Robinson sued Xavier Fellin, age 11, who struck him with a small toy dinosaur during an argument at a Grande Prairie, AB, summer daycare program. Dominic required surgery for a severe finger injury.

Of interest, this case lacked many of the accoutrements common in personal injury actions. There were no lawyers, no medical reports or records, and judge Brian Hougestal did not bother find out whether the litigation guardians were the players’ parents or not. Bizarre?

At the end of the day, His Honour found there was no evidence that the defendant’s parents encouraged their son to use Dino as a weapon. Nor was there evidence that they came up short in their child-rearing or that they failed to properly supervise their son.

The judge dismissed the action. He noted, “Children in these situations are within the expected scope of a difficult to foresee risk.” I don’t see the risk as being difficult to foresee. To me, it was obvious. This was a melee waiting to happen. When a dinosaur comes between two kids at a daycare, there’s trouble on the horizon.

There is no indication what they were arguing about. Presumably, one kid said the raptor was a Brontosaurus while the other maintained it was a Tyrannosaurus Rex. I can readily see this type of argument leading to a confrontation dwarfing that in West Side Story. Some kids take their dinosaurs seriously.

Justice Hougestal called the incident “an unfortunate fluke”.

I must disagree with His Honour. Has the court created a new defence to a claim in negligence? Unfortunate fluke? Is it like an act of God? Similar outcome. Except with this latter defence, you don’t dare sue the perpetrator — lest a lightning bolt strikes you.

Are defendant lawyers now going to make a mad dash to amend statements of defence, as follows:

14. The defendant pleads that the incident, if it happened, which is not admitted, was not his fault. He pleads and relies on the defence of unfortunate fluke.

Has His Honour opened a Pandora’s box of litigation? What legal concept will grace the law next? A fortunate fluke?

Is the outcome an affirmation similar to the concept of scienter, where dogs get one free bite with impunity? Hey, if you’re a kid who has a dinosaur toy in your hands and some other kids come along and a struggle ensues over the overgrown lizard, and you want to swat the other kid with it, go for it. No problem.

The judge assessed general damages for pain and suffering at $10,000. Fortunately, the plaintiff made a decent recovery.

Incidentally, is anyone wondering what happened to the daycare centre? It went bankrupt. Gone — like the dinosaur.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe, is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X: @MarcelsHumour.