Case: Rizzuto v. Hamilton-Wentworth Catholic District School Board, 2025 ONCA 773 (CanLII)
Keywords: schoolyard bullying; negligence; Clements v. Clements, 2012 SCC 32
Synopsis:
The Appellants bring a negligence action against Respondents Hamilton-Wentworth Catholic District School Board and the Principal and Vice-Principal of Holy Name of Mary elementary school. The action alleges that the Respondents breached the standard of care by failing to protect the 10-year-old Appellant from bullying in the schoolyard. (See para. 1). The two students accused of bullying settle with the Appellants. (See para. 2).
The Trial Judge (Bordin J.) finds the Respondents breached the standard of care by “failing to investigate [an earlier] incident, losing the student accident report pertaining to that incident, and allowing logbooks to be destroyed”. Importantly, however, the Trial Judge also finds:
- the incident was “sudden, unexpected, and impulsive”; and
- that none of the Respondents’ breaches “caused” the incident. (See paras. 8-10)
The Trial Judge dismisses the Appellant’s claim. (See para. 3). The Court of Appeal (Copeland, Wilson, and Pomerance JJ.A.) dismisses the appeal. For the Court of Appeal, there was “no error” in the Trial Judge’s analysis, including the conclusion that “more supervision or disciplinary measures would [not] have deterred or prevented the…incident”. (See paras. 6-8).
Importance:
The reasons of the Court of Appeal highlight two very practical issues for negligence matters:
- the onus is on the plaintiff to prove, on a balance of probabilities, that but for the negligence of the defendant, the injuries would not have been sustained; and
- it is not the role of an appellate court to revisit factual determinations absent demonstration of palpable and overriding error. (See paras. 9, 11).
Regarding the first point, the Court of Appeal noted there was “no obligation” for the Trial Judge to “advise counsel” on the need to prove the causal link (e.g., in accordance with the Supreme Court of Canada’s decision in Clements v. Clements, 2012 SCC 32 (CanLii)). (See para. 9). As to the second point (i.e., the scope of appellate review), the Court of Appeal was not persuaded by arguments which sought to “revisit the findings made by the trial judge” in the absence of a demonstrable error. (See paras. 10-11).
Of further interest for bullying-related matters, the Court of Appeal observed that the Trial Judge’s conclusions appropriately reflected “what might have happened” if the Respondents had investigated an earlier incident of alleged bullying. For the Court of Appeal, the nature of the incident herein was such that non-compliance with Board policies was not its cause. (See para. 10). Ultimately, the Court of Appeal is signalling that, where a trial judge conducts a “careful assessment of the evidence” and articulates “logical bases” for their findings, the scope of appellate intervention narrows. It is litigants, rather than trial judges, who bear the obligation to establish the material elements of negligence (i.e., to satisfy each of the ‘pre-conditions to recovery’). (See paras. 9, 11).
Counsel for the Appellants: Jeffrey Strype and Chris Van Delft (Strype Injury Lawyers, Toronto)
Counsel for the Respondents: James Greve and Cindy Leung (Intact Insurance Company, Mississauga)