Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200120 DOCKET: C65465

Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)

BETWEEN

Roksana Hajrizi, Ismet Hajrizi, and Celina Urbanowicz Plaintiffs (Appellants)

and

Ottawa-Carleton District Schoolboard, Mark A. Harris and Noah Raahemi Defendants (Respondents)

Counsel: William N. Fuhgeh, for the appellants Craig O’Brien, for the respondents

Heard and released orally: January 16, 2020

On appeal from the judgment of Justice Martin S. James of the Superior Court of Justice, dated May 9, 2018, and from the order of Justice Martin S. James, dated November 13, 2018, with reasons reported at 2018 ONSC 6644.

Reasons for Decision

[1] Following an incident between Roksana Hajrizi and Noah Raahemi in September 2009, when they were in the tenth grade at Glebe Collegiate Institute in Ottawa, Ms. Hajrizi was charged with uttering threats, arrested, and on the same day, released. She transferred to another school.

[2] In 2011, Ms. Hajrizi and her parents commenced an action against the respondents, Ottawa-Carleton District School Board and Mark Harris, a vice-principal at the time, and Mr. Raahemi for, among other things, misfeasance in public office, intentional infliction of mental suffering, negligence, defamation, and conspiracy. Ms. Hajrizi sought damages of $3.7 million from the School Board, and each of her parents sought damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the “FLA”), in the amount of $200,000.

[3] The School Board and Mr. Harris filed a jury notice and the trial began in 2018 as a jury trial, scheduled to last 18 days. After eight days, the trial judge was persuaded that justice to the parties would be better served by discharging the jury and the trial proceeded as a judge-alone trial.

[4] The trial was essentially a credibility dispute between two narratives, and the trial judge found that key aspects of Ms. Hajrizi’s testimony were not credible. The trial judge dismissed Ms. Hajrizi and her parents’ claims and awarded costs, on a substantial indemnity scale, in the amount of $201,155.36 against the parents, on a joint and several basis. He ordered that Ms. Hajrizi, who was a minor at the time that the litigation was commenced, is liable to the School Board for $100,000 of the costs ordered.

[5] Ms. Hajrizi and her parents appeal the dismissal of their action against the School Board and Mr. Harris and seek leave to appeal the costs ordered.

[6] The appellants argue that the trial was unfair, and that the trial judge misapprehended the evidence, failed to address relevant factors in concluding that there was no breach of the standard of care, and provided inadequate reasons for his decision. They challenge his credibility findings. They also argue that the costs ordered were unreasonable, and that the trial judge erred in ordering costs against Ms. Hajrizi’s parents who only made derivative claims under s. 61 of the FLA. They do not challenge the award of costs on a substantial indemnity scale.

[7] We see no basis for this court to interfere with the trial judge’s judgment dismissing the appellants’ action or to grant leave to appeal his order awarding costs against the appellants.

[8] The appellants do not identify anything that, in our view, made the trial unfair. The trial judge did not misapprehend the evidence. He simply did not accept Ms. Hajrizi’s version of events. As to the failure to address relevant factors in concluding that there was no breach of the standard of care and the adequacy of the trial judge’s reasons, as we have stated, the trial was essentially a credibility contest. There is no basis to interfere with the trial judge’s credibility findings. The reasons why the trial judge found that key aspects of Ms. Hajrizi’s testimony were not credible are clear, and all the causes of action advanced depended on the acceptance of Ms. Hajrizi’s testimony.

[9] As to costs, the trial judge explained why he ordered costs against Ms. Hajrizi’s parents. He inferred, in our view reasonably, that they played a pivotal role in initiating and prosecuting the litigation. The trial judge’s award of costs on a substantial indemnity scale was fully warranted and, as we have stated, is not challenged. The trial judge considered the quantum of the costs sought by the respondents, reduced them somewhat, and concluded that the reduced amount was proportional in relation to the complexity of the case and the amount involved. On a substantial indemnity scale, the costs are entirely reasonable.

[10] Accordingly, the appeal is dismissed and leave to appeal costs is denied. The respondents are entitled to their costs of the appeal, fixed in the amount of $12,000, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.” “Doherty J.A.” “Marrocco A.C.J.S.C.”