Court of Appeal for Ontario

Date: 2025-11-12

Docket: COA-23-CV-0866

Judges: Copeland, Wilson and Pomerance JJ.A.

Between

Anthony Rizzuto, an infant under the age of 18 years by his Litigation Guardian, Nadia Rizzuto, the said Nadia Rizzuto and Anthony Rizzuto Sr.

Plaintiffs (Appellants)

and

Hamilton-Wentworth Catholic District School Board, Brenda Hamilton and James Vandenbosch

Defendants (Respondents)

Counsel

Jeffrey Strype and Chris Van Delft, for the appellants

James Greve and Cindy Leung, for the respondents

Heard

November 5, 2025

Appeal

On appeal from the judgment of Justice Michael Bordin of the Superior Court of Justice, dated July 7, 2023, with reasons reported at 2023 ONSC 3829.

Reasons for Decision

[1] The appellants, Anthony Rizzuto, Nadia Rizzuto and Anthony Rizzuto Sr. brought an action against the respondents, Hamilton-Wentworth Catholic District School Board; Brenda Hamilton, principal of the Holy Name of Mary elementary school; and James Vandenbosch, vice principal of the school. The action was framed in negligence, alleging that the respondents had breached the standard of care by failing to protect Anthony Rizzuto ("Anthony") from bullying in the schoolyard. Anthony, 10 years old at the time of the events, was injured by two other students during an incident on November 23, 2009. There had been earlier incidents of bullying, but only one incident, that of September 18, 2009, was reported to school officials.

[2] Originally, the two students responsible for the bullying were also named as defendants, but they settled with the appellants.

[3] The trial judge found that the respondents breached the standard of care by, among other things, failing to investigate the September 18th incident, losing the student accident report pertaining to that incident, and allowing logbooks to be destroyed. However, he found that none of the breaches caused the November 23rd incident and therefore dismissed the claim.

[4] The appellants challenge the findings and conclusions of the trial judge. At the close of the hearing, we dismissed the appeal with reasons to follow. These are those reasons.

The Appellants' Main Argument

[5] The appellants' main argument is focussed on the September 18th incident. The appellants contend that the respondents' failure to investigate that incident, and the misplacement of the student accident report, was a cause in fact of the November incident.

[6] The trial judge concluded otherwise, and we see no error in his analysis.

Analysis

[7] First, while the trial judge found that the September 18th incident should have been investigated, it was not reported to school officials as a bullying incident, or even as an incident of intentional violence. As found by the trial judge, the report to school officials conveyed that Anthony's knee was injured when another student fell on him during a football game. As the trial judge found, at para. 263: "The knee incident on September 18, 2009, was known to the school but was reported in a manner that suggested the injury occurred during a football game and was reasonably interpreted as having occurred during a football game."

[8] Second, having considered the whole of the evidence, the trial judge determined that the November 23rd incident was "sudden, unexpected, and impulsive". He concluded, at para. 280, that "the plaintiffs have not established that any breaches of the standard of care by the defendants caused the November 23, 2009, incident." He was "also unable to conclude more supervision or disciplinary measures would have deterred or prevented the November 23, 2009, incident".

Burden of Proof and Causation

[9] The appellants complain that the trial judge did not put them on notice that he was concerned about causation. However, the trial judge was not obliged to tell the appellants – plaintiffs in the action – what they had to prove. The appellants had the onus to prove on a balance of probabilities that but for the negligence of the respondents, the injuries would not have been sustained: Clements v. Clements, 2012 SCC 32. Proving the causal link was a pre-condition to recovery and there was no obligation on the trial judge to advise counsel on what had to be proved.

[10] The appellants further argue that they did prove cause in fact. Here the appellants point to the Board policies on bullying behaviour, and the fact that bullying did stop after school officials conducted a full investigation of the November 23rd incident. This argument, like others advanced by the appellants, seeks to revisit the findings made by the trial judge. The trial judge quoted from the Board policies, and expressly considered what might have happened had the respondents investigated the September 18th incident. He was not persuaded that such investigation would have prevented the November incident, or that any other breach caused the incident of November 23rd where the infant suffered injuries.

Standard of Appellate Review

[11] It is not the role of this court to revisit factual determinations absent demonstration of palpable and overriding error. We see no such error in this case. The trial judge heard from several witnesses who offered differing accounts of the relevant events. He conducted a careful assessment of the evidence and articulated logical bases for his findings. We see no basis for appellate intervention.

Disposition

[12] Accordingly, the appeal is dismissed. In accordance with the parties' agreement, costs are ordered against the appellants in the amount of $15,000 all inclusive.

"J. Copeland J.A."

"D.A. Wilson J.A."

"R. Pomerance J.A."