Lee v. Toronto District School Board, 2013 ONSC 12635

COURT FILE NO.: 100792/99

DATE: 20130314

Corrigenda: 2013-03-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Kin Hang Lee aka Cliff Lee and Sui Yan Lee aka Susanne Lee, minors by their Litigation Guardian Chiu Lee aka Charles Lee et al

Daniel J. Balena and Howard Smith, for the Plaintiffs

• and -

Toronto District School Board, City of Toronto, George Brown Jr., Trisha Babits, Heather MacDonald, and Tevin McNeil

Boyd Critoph, for the Defendants other than Tevin McNeil

HEARD: May 22-25, 28-30, June 4-5, 2012

REASONS FOR JUDGMENT

LAUWERS J.:

[1] On November 26, 1998, the plaintiff Cliff Lee was a seven year-old Grade 2 student at Cresthaven Public School in Toronto. He experienced a brain bleed during afternoon recess. He claims that it was caused by a punch to the head thrown by the defendant Tevin McNeil, who was also a seven year-old Grade 2 student at the school.

[2] The brain bleed devastated Cliff Lee. He now suffers from a number of physical, mental and emotional impairments that have drastically affected his activities of daily living and diminished his future prospects. Even though he has shown remarkable and admirable perseverance and has accomplished much, Cliff will need considerable assistance in the future in order to accommodate his disabilities and to live a decent life, and will need commensurate financial resources.

[3] Cliff Lee is joined in this action by his father Charles Lee, his mother Hannah Chan and his sister Susanne Lee as Family Law Act[^1] claimants.

[4] The Toronto District School Board operated Cresthaven Public School. George Brown Jr. was the principal. Trisha Babits and Heather MacDonald were teachers responsible for schoolyard supervision that afternoon. Tevin McNeil was represented by the Office of the Children’s Lawyer until he became an adult. He cannot be located and was not represented at trial.

[5] In our system of justice, the personal losses arising from unfortunate events lie where they fall unless there is a legal basis for transferring responsibility for those losses to another person. The plaintiffs say that the defendant school board is liable for negligently failing to prevent Tevin McNeil’s assault and Cliff Lee’s consequent injuries.

[6] While I find that Tevin McNeil’s assault was the immediate cause of Cliff Lee’s brain bleed, I also find that the School Board and its staff members were not negligent in failing to prevent the assault. For the reasons set out below, I dismiss the action.

The Basic Facts

[7] Cliff Lee alleges that Tevin McNeil struck him on the right side of his head on November 26, 1998, between 2:20 p.m. and 2:30 p.m. during recess. He then experienced what Dr. Richard G. Perrin, a neurological surgeon, described as “an intracranial catastrophe.” Cliff was carried into the school by one of the two teachers who were on yard duty, and was transported by ambulance to the North York General Hospital, arriving at about 3:07 p.m. A CAT scan of his head showed that he had a large right temporal parietal intracerebral hematoma; he was transferred to the Hospital for Sick Children for an emergency craniotomy to remove a blood clot, which is described as having been the size of an adult fist. Cliff now suffers from a number of disabilities that resulted from this injury.

[8] On February 15, 1999, Cliff Lee was re-admitted to the Hospital for Sick Children. Following a procedure known as “superselective angiography”, the doctors concluded that he had a previously undiagnosed arteriovenous malformation (“AVM”) which was deeply seated at the terminal anterior choroidal artery on the right side. It was treated surgically in 2000. He is no longer at risk for a brain bleed.

The Issues

[9] The plaintiffs claim that the School Board and its staff were negligent in failing to prevent Tevin McNeil’s assault on Cliff Lee, both at common law and under the Occupiers Liability Act[^2]. They seek damages.

[10] The defendants deny liability, asserting that Tevin McNeil did not punch Cliff Lee, and that the punch did not cause the bleed. Assuming that Tevin punched Cliff and caused the bleed, the defence asserts that there is no legal basis for holding that the School Board and its staff are responsible for the punch and the injury. They also dispute the quantum of damages.

[11] In the first part of these reasons I address the liability issues, and, in the second part, the damages issues.

Part One: Liability

[12] It is settled law that a school board and its staff owe a duty of care to students: Myers v. Peel County Board of Education.[^3] In cases against school boards the issues engaged are often the standard of care and causation.[^4] Both are in issue in this case. The plaintiffs cite ordinary negligence law and also rely on the Occupiers Liability Act.

[13] The plaintiffs assert that the Occupiers Liability Act imposes a positive duty on the School Board that goes beyond those set out in the Education Act[^5] and rely on Kennedy v. Waterloo County Board of Education[^6]. But this case is largely about the adequate supervision of students, not site safety, as in Kennedy, where the presence of physical hazards lent itself more naturally to analysis under the Occupiers Liability Act. In my view that Act adds nothing substantive in the circumstances of this case.[^7]

[14] The defence asserts that Cliff Lee’s brain bleed was purely coincidental with the events on the soccer field. They assert that Tevin McNeil did not punch Cliff, or, if he did, that the punch did not cause the bleed, so they are not liable.

The Facts about the Injury

[15] The school site aligns in a north-south direction. The main body of the school also aligns in that direction and has the shape of a reverse letter “L”. The tarmac area is in the crook. There are two play structures on the edge of the tarmac. Ms. Babits testified that the northerly play structure is the smaller primary climber for children in Grades 1 and 2. The older children were expected to play on the larger junior climber to the south. The exhibited photographs establish that one can see through the structures. From certain angles they obscure but do not completely obstruct a view through them to the playing field beyond.

[16] On the day of the incident, Cliff Lee and the other boys from the Grade 2 class arrived late. They brought a soccer ball and began playing on the tarmac. Ms. Babits was there and decided to send them into the playfield. She did this because, for some reason that she cannot recall, the Grade 5’s and 6’s who would normally be on the playfield were not there. Since there were other games such as four-square, hopscotch, and basketball places taking place on the tarmac, using the tarmac as a soccer field would have interfered with other children. She also anticipated that more children would come on to the tarmac shortly. The boys went out to the playfield and were playing a game that took them between the north goalpost and about the mid-field point. She was able to observe them during her patrol of the schoolyard.

[17] When the bell rang at the end of recess a child came up to Ms. Babits and told her that Cliff Lee was hurt. She ran to him in the field just beyond the primary climber. She spoke to him and he told her that Tevin McNeil had hit him. She observed his distress.

[18] Ms. MacDonald noticed Cliff Lee on the field and first thought that he was one of her students. As she approached, she realized that he was not but continued on and met Ms. Babits. Seeing Cliff’s distress, Ms. MacDonald scooped him up and put him in Ms. Babits arms and she took him to the office. She knew from his behaviour on the field and in the office that he was in considerable difficulty and had emergency services contacted.

[19] Cliff Lee testified that his classmate Tevin McNeil approached him on the soccer field near the north goal posts and asked him for the soccer ball that he was carrying. Cliff refused to give it to him and Tevin then punched him on the right temple. Cliff admits that he has only a vague recollection, but he felt intense pain, “as if something had burst inside my head,” and he then had a “numb feeling inside”. Cliff testified that he thought he could run it off and he ran for a minute or so. He felt the pain getting worse, and “feeling really dizzy, couldn’t take pain,” and then fell on his back.

[20] Cliff testified that a friend came over to see what was wrong, and he asked his friend to find a teacher. Ms. Babits came over, and Cliff recalls telling her that Tevin McNeil had hit him. She took him to the office.

[21] There is other evidence supporting Cliff’s allegation that Tevin McNeil struck him, most specifically Tevin’s admission to Principal Brown. This admission was corroborated by Tevin’s admission to one or more investigating police officers although it is difficult to follow the notes. The defence agreed that the police file could be admitted including hearsay content subject only to weight.

[22] I find as a fact that Tevin McNeil punched Cliff Lee in the head.

1. Cause-in-Fact of Cliff Lee’s Brain Bleed

[23] Did Tevin McNeil’s punch cause Cliff Lee’s brain bleed? This requires the consideration of expert evidence.

[24] The plaintiffs called Dr. Richard G. Perrin, a neurosurgeon working at St. Michael’s Hospital in Toronto. He is also an associate professor at the University of Toronto. Dr. Perrin’s first report explains:

No eyewitness accounts of what was apparently an intentional blow to the head and the intermediate sequelae are recorded. Nevertheless, given the reconstructed temporal sequence: emerging from class for recess at 2:20 p.m., commencing to play soccer thereafter, and then discovered on the ground holding his head by the end of recess, less than 10 minutes later and by 2:30 p.m., it appears more likely than not that the blow(s) to the head and the intracranial catastrophe are casually related.

In this event, one would postulate that the head blow(s) resulted in commotion of the brain suspended in cerebrospinal fluid and causing disruption of delicate AVM vessel(s). The blow would not need to be of sufficient force to render the patient unconscious. Rather, an abrupt blow (punch to the head) strategically applied at the frontotemporal area could be responsible for such intracranial commotion and vascular disruption.

[25] Dr. Perrin’s second report provided his responding opinion to the contrary report secured by the School Board from Dr. M.C. Wallace, a neurosurgeon at the Toronto Western Hospital. Dr. Perrin has great respect for Dr. Wallace and they appear to be personal friends.

[26] Dr. Perrin’s second report elaborated on the mechanism for the rupture that he explained briefly in the last paragraph of the report quoted above. He stated: “I stand by the conclusion in my report dated September 23, 2011 that ‘an abrupt blow (punch to the head) strategically applied at the frontotemporal area could be responsible for such intracranial commotion and vascular disruption.’”

[27] Dr. Perrin went on to comment that his conclusion was supported by a scholarly article in Surg Neurol 1987; 28: 451-7 authored by Nishi, et al, entitled “Ruptures of Arteriovenous Malformations in Children Associated with Trivial Head Trauma”. There were no external signs of bruising in each of the three cases analyzed. The authors note at page 455: “The tendency to develop haemorrhage after trivial head trauma appears to be more prominent at a younger age.” The reasons for this are described in the conclusions at page 456:

Additionally, the child’s brain can be rotated easily because of the relative flatness of their cranial base. When their brain rotates, a larger shearing force can be produced in a child’s brain than in adults, in that the child’s brain is much softer than the adults. These peculiarities tend to be more conspicuous in younger children. Thus, in a younger child’s brain, a relatively trivial external force could be the cause of haemorrhage from an AVM due to the production of a shearing force in the child’s brain.

…Granted that each AVM has its own structural fragility; from the factors stated above, we postulate that the intracerebral shearing force due to acceleration of the head in the PA direction may have an important role in the rupture of AVM associated with trivial head trauma.

[28] In his second report, Dr. Perrin stated:

It has been clearly demonstrated, and is generally accepted, that blunt trauma to the head causes commotion of the brain (suspended in cerebral spinal fluid within the rigid bony skull) thus causing shearing stress affecting the corpus callosum (which connects the two cerebral hemisphere) and as well the long tracts within the hemisphere themselves. This, in turn, results in disruption of brain substance – and which, in some cases, may be identified grossly as asymmetric rupture of the corpus callosum and microscopically in sections of the hemispheres themselves as “retraction ball” which represent avulsed axons of the long tracts. It is reasonable to assume that the same shear forces would cause an avulsion and rupture delicate vessels that are part of an AVM.

[29] The defence called Dr. Wallace, a neurosurgeon who has specialized in AVMs and aneurysms. By his estimate, about 50 to 60 per cent of his time has been devoted to this focused subspecialty. In 1989 he established the Toronto Brain Vascular Malformation Study Group because of the rarity of research in the area. The study is now among the largest in the world and covers a 20-year time span. It does not focus on children and does not single out trauma in the questionnaire it uses.

[30] Dr. Wallace’s evidence is that brain AVMs are unusual conditions. The incidence is about 1 in 100,000. They were once thought to be congenital but current thinking is that they develop in early childhood between four and 12 years of age. His report notes:

Having hemorrhagic presentations are the most common forms of presentation in childhood, whereas seizures represent a more common presentation in adults. The nature history is estimated to be anywhere between 1-4% per year of bleeding from an arteriovenous malformation. There are no known factors that precipitate hemorrhage. Once an AVM has bled, its risk increases.

[31] Dr. Wallace was cross-examined at length. He testified that the 1-4% annual risk is a number that emerges from the studies, but was calculated for patients who have diagnosed AVMs. He said that it is not possible to comment on the risk for individuals who have AVMs but who are not diagnosed such as Cliff Lee because they are unknown and are not part of the study. Dr. Wallace said that the science would not permit him to provide an estimate of the risk of a bleed for person with an undiagnosed AVM. In Cliff’s case, the fact that his AVM was later treated means that he is no longer at risk of a bleed. In relation to the population of his study, Cliff would only have been a member at particular risk after diagnosis and before treatment.

[32] On the central question of whether Tevin McNeil’s punch caused the rupture, Dr. Wallace wrote the following:

Is it possible that the trauma is associated with the subsequent hemorrhage then one would have to say that it is possible because of the temporal sequence of events. However, it is not probable given the above statements regarding the natural history and behaviour of these lesions.(Sic)

[33] Dr. Wallace was closely questioned on the issue of trauma causing AVM bleeds. He agreed that his study did not assess trauma and the questionnaire completed in respect of study participants did not refer to trauma.

[34] Dr. Wallace was dismissive of the Japanese study relied on by Dr. Perrin, which relates bleeds to seemingly innocuous trauma. He notes that the conclusion in the article reporting on the study remains nothing more than a postulation, as the article expressly states. The study, he notes, has not been followed up and has not influenced the management of individual cases by doctors.

[35] In his report Dr. Wallace was able to identify only one incident in which trauma induced haemorrhage among the more than 850 AVM malformations that his group treated. Dr. Wallace’s evidence is that he consistently advises patients not to adjust their lifestyle to account for the fact that they have AVMs. He wrote:

Because of the vast array of environments where hemorrhages have occurred, there is no specific aetiology known for why these lesions bleed. Patients are generally told to avoid hypertension in the adult years. Those individuals with AVMs that are chosen not to be treated are not provided with any restrictions. They exercise regularly. Lifestyle restrictions are not imposed.

[36] In Dr. Wallace’s view, the punch was no more related to the bleed than the fact that Cliff Lee was playing soccer that day.

[37] In terms of risk assessment, Dr. Wallace was taken to the statistics in Table 1 of the Study Group’s webpage which provides:

Table 1. Risk of Bleeding from an AVM
Life Expectancy	Risk of Bleeding
10 years	33.5%
20 years	55.8%
30 years	70.6%
40 years	80.3%
50 years	86.8%

[38] Dr. Wallace was cross-examined on the proper way to understand these statistics. The example following the table notes that an individual with a life expectancy of 40 years has chance of bleeding of 80.3%. Plainly then, the younger the person with an AVN, the more likely that he or she will eventually experience a brain bleed.

[39] The webpage also states the following:

4. Bleeding: This is the most serious complication of an AVM. It is the main reason for recommending treatment. Bleeding from an AVM will occur in about 4 out of 100 people with a brain AVM every year. Sometimes, a bleed may be small and produce no noticeable symptoms. Approximately 50 % of the bleeds are significant with permanent disability in half of these cases and death in the other half.

[40] In Dr. Wallace’s view, 50 per cent of those who bleed experience a significant bleed; of that 50 per cent group who have significant bleeds, half go on to die and the rest develop permanent disabilities. The disabilities range from relatively mild to severe, as in the case of Cliff Lee.

[41] The webpage seems to be based in part on an article that Dr. Wallace co-authored entitled: “The Natural History and Predictive Features of Hemorrhage From Brain Arteriovenous Malformations,” Stroke 2009, 40:100-105. The article notes at p. 101 that in his Group’s study “35% had significant functional impairment” following a bleed in people diagnosed with an AVM. The article notes, at p. 104, that the risk of a second bleed is “highest in the first years after diagnosis.”

[42] Dr. Wallace wanted to stick as closely to the science as possible, as set out in his study, and was reluctant to make definitive pronouncements that were not rooted in the science. He refused to give an opinion on Cliff Lee’s chances of a bleed on the day before the incident. He said that the science would not permit him to make a prediction.

Discussion on Whether the Punch Caused the Bleed

[43] It is the court’s task to determine whether, on the balance of probabilities, the evidence demonstrates a causal relationship between the punch and the bleed.

[44] The defence urged me to take Ducharme J.’s approach in Rollins, where the issue was whether a blow to the head in a schoolyard incident caused the plaintiff to go one to develop Rasmussen’s encephalitis, described as: “a rare disease of unknown etiology”[^8]. The physician who testified for the plaintiff “theorized” a mechanism[^9] and, in an odd parallel, relied on a small Japanese study. The defence expert took the view that “the Japanese researchers may be right,”[^10] but the science had not progressed to the point that it yielded reliable evidence or proof on the balance of probabilities[^11]. Ducharme J. found that there was a “coincidental connection,” but “no more than a tenuous possibility,”[^12] concluding that the plaintiffs had not proven on the balance of probabilities that the trauma and the injury[^13].

[45] In this case, the School Board took a parallel position: “These defendants submit that there is an insufficiency of scientific evidence to support the causal connection between Tevin’s hit and the AVM rupture despite the close temporal connection.”

[46] Dr. Perrin criticized Dr. Wallace’s report on two grounds. First, he said that Dr. Wallace’s report was based on an erroneous assumption about the timing of the injury in relation to the blow. The report states: “This gentleman’s blow to the head occurred anywhere from 15 minutes to half-an-hour before he slumped.” The evidence is, however, that Cliff slumped within a couple of minutes of the blow. The bleed was therefore related much more closely in a temporal sense to the blow than Dr. Wallace thought, making the inference of causation much stronger. Second, the sample patient group that Dr. Wallace considered is made up of adults and, for the reasons of brain and skull architecture mentioned in the journal article, Dr. Perrin considered that children are different.

[47] While Dr. Perrin referred to the “commotion” caused by the punch and the shearing effect on the AVM, Dr. Wallace stated that the adult brain would be in more danger because it shrinks, although he admitted that the brain pan of a child was flatter and permits more rotation. Dr. Wallace then backed off in cross-examination, however, and said that a trauma specialist would need to be consulted for an opinion.

[48] It appears that the timing sequence in Dr. Wallace’s report was in error; the time between the blow and Cliff Lee’s slump, which evidenced the bleed, was much shorter than he was told. Despite this fact and the openness expressed by Dr. Wallace in his report to the possibility that trauma caused the bleed, in testifying he stuck with the opinion that the trauma and the bleed were not related. In his view, the blow, to be causative, would need to be strong enough to have rendered Cliff unconscious and it was not. Dr. Perrin disagreed and said that a glancing blow, as this one was, could be lighter and still have devastating results because of Cliff’s brain, his skull architecture, and the weakness of his neck muscles.

[49] I found Dr. Wallace to be somewhat defensive of the opinion in his report. Having admitted the possibility of a relationship between the trauma and the bleed because of the temporal sequence, it seems logical that, when it was shown to him that the sequence was even closer than he originally thought, he could have admitted that there was a higher possibility of a relationship, but he stubbornly did not. This logical inconsistency causes me to doubt the reliability of his opinion on this point. The Japanese study demonstrates that it is possible that trivial trauma could be the cause of a bleed as a result of the shearing force of the blow on the child’s brain. This was precisely the mechanism suggested by Dr. Perrin in his first report even before he found the Japanese report.

[50] On a pragmatic, robust and common sense review of the evidence, I am satisfied on the balance of probabilities that Tevin McNeil’s punch caused Cliff Lee’s bleed. I base this on the fact that Cliff experienced immediate pain, and that his slump followed so closely after the punch, coupled with Dr. Perrin’s biomechanical explanation that is corroborated by the Japanese study and acknowledged at least as a possibility by Dr. Wallace. I recognize, in making this finding, that the record of such incidents is small and the occurrences themselves are very rare. That said, I note the words of McLachlin C.J. in Clements v Clements[^14]: “The law of negligence has never required scientific proof of causation; to repeat yet again, common sense inferences from the facts may suffice.” I find that in this case the inferences do suffice.

[51] Cliff Lee was, in short, the proverbial “thin-skull” plaintiff. From the perspective of cause-in-fact, but for Tevin’s punch, the brain bleed would not have occurred when it did. But Cliff was at risk of a brain bleed even without the punch, making him also a “crumbling skull” plaintiff.[^15] I address this issue below in the part on damages

2. Cause-in-Law of the Brain Bleed

[52] The conclusion that Tevin McNeil’s punch caused Cliff Lee’s brain bleed, however, gets the plaintiffs only partway down the road to defence liability. The plaintiffs must prove on the balance of probabilities that the defendants breached the standard of care and that the breach caused the injury. The plaintiffs argue that inadequate supervision in the schoolyard enabled Tevin’s punch.

[53] Mr. Balena asserted in argument for the plaintiffs: “The primary test of causation in cases of negligence is the “but for” test. However, in special circumstances, where it is impossible to apply that test, courts apply the “material contribution” test to determine causation.” He referred to Resurfice Corp. v. Hanke[^16] and Athey v. Leonati[^17]. The “material contribution” test has generally been seen as less rigorous than the “but for” test, because the plaintiff need only prove that a defendant’s negligent act materially contributed to the risk that an injury would occur[^18].

[54] The status of the “material contribution” test, in the light of the Supreme Court’s insistence in forceful terms on the “but for” test in Hanke, has led to some uncertainty in the cases, with plaintiffs pushing for the former test and defendants the latter. The Supreme Court’s decision in Clements has clarified the situation again, stating that the “but for test” is the general rule, and adding:

Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or ”but for” cause of her injury, because each can point to one another as the possible ”but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone[^19].

[55] This is a two-step analysis. The first step is for the plaintiff to establish that his loss “would not have occurred “but for” the negligence of two or more tortfeasors,” and the second step is to assess whether an individual “defendant's conduct materially contributed to risk of the plaintiff’s injury” as one of a group of possible tortfeasors, following Clements.

3. What is the Applicable Standard of Care?

[56] The parties agree on the general standard of care applicable to school boards and staff members. I adopt the statement of Ducharme J. in Rollins[^20]: “[At] common law, and under the Education Act, the standard of care to be exercised by school authorities in providing for the supervision and protection of students is that of the careful or prudent parent.”

[57] These words apply with necessary modifications in these circumstances, where the alleged negligence is in the failure to provide adequate supervision, a duty that is referred to in legislation. Under section 265(1)(a) of the Education Act, the principal has the duty to: “to maintain proper order and discipline in the school.” Section 11(e) of regulation 298 requires the principal: “to provide for the supervision of pupils during the period of time during each school day when the school buildings and playgrounds are open to pupils.” Teachers have the correlative duty, under section 264(1)(e) of the Education Act: “to maintain, under the direction of the principal, proper order and discipline in the teacher’s classroom and while on duty in the school and on the school ground.” Section 20(b) of regulation 298 requires a teacher to: “carry out the supervisory duties and instructional program assigned to the teacher by the principal and supply such information related thereto as the principal may require.”

[58] These general supervision duties are context-specific, as the Supreme Court noted in Myers:

[The prudent parent standard] is not, however, a standard which can be applied in the same manner and to the same extent in every case. Its application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.[^21]

[59] I now turn to consider that context more closely.

The School Site

[60] As noted, the school site aligns in a north-south direction. The main body of the school also aligns in that direction in the shape of a reverse letter “L”. The tarmac area is in the crook. There are two play structures on the edge of the tarmac. The northerly smaller structure is the primary climber meant for children in Grades 1 and 2. The older children were expected to play on the larger junior climber to the south. One can see through the structures. From certain angles they screen but do not completely obstruct a view through them to the playing field beyond.

[61] The plaintiffs called Gordon Jenish, who is a professional engineer and an accident re-constructionist. He investigated and depicted the sight lines from the tarmac adjacent to the school building where the yard duty teachers were located to the play field where the boys were playing with the ball. His evidence was that the two play areas on the western edge of the tarmac obscured the playing field somewhat, depending on the teacher’s position. The distance from the north edge of the tarmac to the north goalposts where Tevin threw the punch is about 34 metres. The distance from the north edge of the south play structure at the edge of the tarmac is about 64 metres.

[62] The plaintiffs called Dr. Marc Green, a psychologist who specializes in human factors. In his report and his evidence, he referred to phenomena that would affect the perception of a teacher on the tarmac looking through the play structure towards the field at the north goalposts. There is the natural human tendency to focus on foreground objects rather than on further-away objects, and motion captures attention. His conclusion amounts to common sense:

A viewer looking through the play structure toward the north goalpost would have perception limited by obstructing surfaces, which would also create camouflage. Moreover, the play structure and the children playing on it would draw attention away from the background area of the goalpost.

The Plaintiffs’ Evidence on the Standard of Care

[63] The plaintiffs called Dr. Nancy J. Cohen as an expert witness on the issue of the standard of care applicable to the School Board and to staff members. She has a doctoral degree in developmental psychopathology from McGill University in Montreal. She works with the Hincks-Dellcrest Centre/Institute in Toronto as the Director of Research. She is a professor in the Department of Psychiatry at the University of Toronto and associate member of the Department of Human Development and Applied Psychology in the School of Graduate Studies of the Ontario Institute for Studies in Education. Dr. Cohen carries on a private assessment practice in relation to cognitive, learning, language, child psychopathology and personality, and provides treatment and individual psychotherapy to children.

[64] I qualified Dr. Cohen as an expert witness in the area of psychology respecting child behaviour, adolescent disorders, child supervision and language and learning disabilities.

[65] Dr. Cohen entitled her report, dated February 2010: “File and Research Literature Review: Opinion in Relation to Specific Questions Arising from an Incident that occurred on November 26, 1998”. In preparing this report, and for her testimony, she reviewed the academic history of Cliff Lee and Tevin McNeil. She did not meet either of them. Ms. Cohen had access to all of the material that has been made part of the exhibits at this trial except for medical reports created after the date of her report in February 2010. That includes the discovery transcripts and police notes of the investigation.

[66] Dr. Cohen was manifestly sympathetic to Cliff Lee’s plight. About three full pages of her report was devoted to the Cliff Lee’s medical condition under the titles of “Pre-morbid history,” “Short-term outcomes” and “Long-term outcomes,” which was irrelevant to her task.

[67] In my view, the plaintiffs’ case depends on Dr. Cohen’s evidence, so I will spend some time on it. I begin with two cautions.

[68] First, whereas most expert witnesses are somewhat diffident about offering their opinion on the ultimate questions to be determined by the court, Dr. Cohen did not hesitate to do so. It is sometimes said that the expert is not entitled to give an opinion on the very issue that the trier of fact is to decide. R. v. Mohan[^22] exemplifies that no such rule exists. Alan W. Mewett and Peter J. Sankoff call this the “ultimate issue myth.”[^23] But “special scrutiny” of reliability is called for when the witness purports to testify on the ultimate issue,[^24] and the requirement of necessity should be “strictly enforced.”[^25] In my view the expert evidence is admissible on the standard of care in this case.

[69] The second caution is this: the court relies on the intellectual neutrality of expert witnesses. The School Board submits that Dr. Cohen’s evidence did not comply in spirit with rule 4.1.01, the amendments to rule 53.03, and Form 53 of the Rules of Civil Procedure, that she was an advocate for the plaintiffs, and that she was not impartial. The defence did not argue that Dr. Cohen should be disqualified, but submitted that her evidence should be given little weight as against the defence witnesses.

[70] The problem of “expert bias” was addressed in the Osborne Report.[^26] The new provisions in the Rules were intended to establish firmly that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or payment.[^27] An expert’s opinion must be and must be seen to be detached and independent. [^28] Further, the expert must disclose what he or she has been given and the assumptions that he or she has been asked to accept as the foundation for the opinion.

[71] Disqualification of an expert can be devastating to a party’s case so it is a conclusion that trial judges naturally lean away from.[^29] As the Court of Appeal observed in Alfano:

In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.[^30]

[72] Where an expert’s neutrality is questionable, so is the reliability of the expert’s evidence. Indeed, cross-examination of experts is often addressed both to the substance of the opinion and to the witness’s impartiality. As Mewett and Sankoff observe, it is difficult for experts to be angels.[^31] Dr. Cohen’s impartiality was a live issue throughout.

[73] The roadmap to the plaintiffs’ case is set out on Dr. Cohen’s report. It had two basic thrusts. The first is her general finding that the number of supervising teachers and their placement in the schoolyard on the day of the incident was inadequate. The second is her more particular finding that Tevin McNeil posed a greater than normal risk of aggression towards other children and should have been more closely supervised than other children. Dr. Cohen does not keep her analysis of each issue distinct, but logically they are distinct, and I address them that way below.

[74] The plaintiffs submit that having only two teachers on yard duty was insufficient supervision, and that Tevin McNeil posed a special risk warranting closer supervision.

Issue One: Was the number of teachers on yard supervision sufficient?

[75] The evidence is that two teachers were on supervising yard duty for afternoon recess on the day of the incident. This staffing had been in place for years and continued after the incident. For clarity I call this the general supervision issue.

The Evidence of School Staff Members

[76] George Brown Jr. was the principal of Cresthaven Public School at the time of the incident. He began at the school in September of 1998. It was his first assignment as a principal although he had been a vice-principal at another school.

[77] The principal and the teachers are professionally responsible for supervising the children. Mr. Brown acknowledged that the purpose for supervision was to ensure the safety of the children. It was his responsibility to assign teachers to yard duty during recess. When he arrived a schedule had already been established by his predecessor and he simply adopted it. He saw no reason, having supervised the yard himself on many occasions, to increase the number of teachers beyond two for afternoon recess.

[78] Mr. Brown testified that neither the School Board nor the school issued written guidelines on yard supervision. He saw it as a matter of common sense. The teachers and the principal spoke about yard supervision from time-to-time at staff meetings. As principal he expected the teachers to work out a plan of supervision among themselves but it was not to be a formal plan or one that was in writing. The basic rules are rules of common sense. The children were not to be allowed outside unless there were supervisors present. Supervisors were to arrive promptly. They were expected to “float,” that is, to circulate and not to stand together. Their role was to keep their eyes and ears open and watch. As he testified: “It’s always important to, to, to glance, keep glancing around at all areas.” He added: “you must also be able to float enough to keep being – having the sight line to check out onto the field if there were a few children there.” If the students were congregating or particularly boisterous the teachers were to attend and deal with any behavioural issues they found in accordance with the school’s Code of Behaviour.[^32]

[79] Ms. MacDonald and Ms. Babits were the two experienced teachers on yard duty on the day of the incident. They established a supervision pattern that put them in close proximity to most of the students most of the time but also permitted them to maintain oversight on the playing field. They had a student teacher shadowing them.

[80] Mr. Brown and the two teachers agreed that proper supervision meant that the teachers had to be reasonably proximate to the children. Mr. Brown admitted that if a teacher is a significant distance away there was a greater likelihood that a child will act out. Children need to know that they are supervised and must be able to see the teacher. There must be a line of sight between the teacher and the student from time to time.

[81] Ms. Babits was responsible for the north end of the tarmac and the primary climber. Her pattern was to walk around the primary climber at the same time keeping an eye on the tarmac and the field as she walked. She readily acknowledged that while she was walking along the tarmac her line of sight into the field would be momentarily screened by the play structure and the children on it. Ms. Babits was wearing a bright purple tracksuit that day so she believes that she was plainly visible to the students. I accept her trial evidence that she clearly recalled looping around the climber on her walk pattern even though it is not consistent with her discovery evidence.

[82] A complementary pattern was adopted by Ms. MacDonald who was responsible for the south end. She walked in a pattern that took her south of the junior play structure onto the south tarmac and back again. She had a line of sight on the field when she was at the west end of her loop and on the tarmac as she was walking to the east. Ms. Babits agreed that supervision patterns might change depending on the location of the children. On some days there would, for example, be no children to monitor on the playing field.

[83] At one point the two teachers found themselves at the edge of the field and Ms. Babits asked Ms. MacDonald whether she should recall the children because the field seemed to be wet. Ms. MacDonald recalled responding that they should be allowed to stay on the field since they so rarely had it, with the Grade 5’s and 6’s absent that day. Ms. Babits testified that she could properly supervise the children on the field from her position at the east end of the field. She noted that if she actually went on to the field herself that she would have been interfering with the game.

[84] Mr. Brown considered Cresthaven to be a peaceful school. In his time at the school he never saw a child make a fist and punch another. This evidence was also given by Ms. MacDonald and Ms. Babits. Ms. MacDonald in particular has spent some time at a school in the Jane-Finch area where schoolyard altercations were more common.

[85] Mr. Brown was questioned closely about whether there were enough teachers supervising children given the layout of the school site and the fact that there were normally about 160 children there. He testified that he thought two teachers supervising were adequate. He was himself on the schedule and was frequently outside even if he was not on the schedule. He was experienced in supervision. If he had thought that another teacher was needed, he had authority to make the assignment, subject, however, to the Collective Agreement and possibly to direction from the School Board on which there was essentially no evidence. Later in Cresthaven’s history when it was amalgamated with another school and the number of students increased the number of teachers supervising them did as well.

[86] In cross-examination Mr. Brown testified that he expected teachers to watch all of the children but to concentrate on most of them. This, I take it, is subject to the obvious point that if an incident arises then a teacher will go to the “hot spot” wherever it happens to be.

[87] During the course of recess the janitor appeared on the roof and tossed down balls that had been “roofed” by the children over the previous week. The task of tossing down the balls took only a few minutes. As part of her supervising responsibility Ms. MacDonald kept order and this did not interfere with her ability to observe what was happening on the tarmac and on the field.

Dr. Cohen’s Evidence for the Plaintiffs on the General Supervision Issue

[88] Dr. Cohen posed the question on the adequacy of supervision in the schoolyard this way:

Question 4: Regarding the Incident, could or would it likely have been avoidable with careful and prudent supervision based on authoritative studies which reasonably conclude that on the balance of probability such Incidents and, in particular, this Incident would likely not have occurred had there been what constitutes supervision, including close proximity of students to teacher, largely unobstructed sightlines, adequate number of teachers in the teacher to student ratio, and greater awareness on the part of the supervising teachers with respect to the conduct of those students who have a history of impulsive behaviours or fighting?

[89] Her answer was this:

Opinion: Safety promotion researchers have demonstrated that the modification of even a single determinant can be sufficient to reduce the probability of injury that is unintentional. Moreover, lapses in caregiver attention have been implicated in research on a variety of types of child injuries including playground injuries. Given the distance of the supervising teachers from the children, the indirect sightline, the fact that one teacher was engaging in an activity unrelated to supervision, and the minimization of Tevin’s history of impulsive and aggressive behaviour, there is little chance that the Incident could have been prevented.

[90] Dr. Cohen admitted in cross-examination that she had reformulated this question. Because she did not bring her file the original form of the question asked by plaintiffs’ counsel could not be put to her. In Alfano the court considered the expert’s report, e-mail communications between the party and the proffered expert, and the cross-examination. Regrettably, Mr. Balena, counsel for the plaintiffs did not volunteer to disclose either immediately or later a copy of his retainer letter to Dr. Cohen nor any other communications with her.

[91] The question as redrafted by Dr. Cohen is tendentious and result-selective. It is decidedly not neutral and shows Dr. Cohen’s partiality to the plaintiffs. It raises a serious issue about her reliability.

[92] Dr. Cohen based her opinion on general supervision standards on a review of the research literature on factors contributing to prevention of schoolyard injuries. She adopted a rather awkward definition of “supervision” authored by an academic in an article written in 2005: “Supervision refers to behaviours that index attention (watching and listening) in interaction with those that reflect state of readiness to intervene (touching/within arm’s reach/beyond arm’s reach) with both types of behaviours judged over time to index continuity in attention and proximity (constant/intermittent/not at all).”

[93] Dr. Cohen explained the different mechanisms by which schoolyard supervision may prevent injuries in a series of common sense, albeit somewhat repetitive, propositions: Supervisors repetitively teach and review playground rules with children; they prevent children from behaving impulsively; the presence of a supervisor causes children, especially impulsive and disinhibited children, to behave more cautiously since children, especially the more uninhibited and impulsive children, behave more cautiously when parents were standing next to them; supervisors change children’s attribution of risk; they have influence as modellers and persuaders of safe behaviour; supervisors recognize danger of an activity and restrain children from acting in a dangerous manner; and supervisors verbally or physically restrain children from behaving impulsively.

[94] Dr. Cohen was critical of the School Board, giving the opinion that:

The TDSB did not discharge the standard of care of a careful and prudent parent. Setting specific guidelines for supervision of children in the TDSB has a long history. The TDSB did not provide sufficient support to principals to carry out their supervisory duties by creating consistency in guidelines and training across schools and their jurisdiction.

[95] Dr. Cohen cited statistical information from the United States that “found the most common ratio [of adult supervisors to children] was one to 50” in 2002. Dr. Cohen retrieved information from the Toronto District School Board’s current website that refers to a ratio of one supervisor for every 50 to 100 students. In her view the appropriate ratio would have been 1 to 50 in line with the American statistic. Dr. Cohen asserted that this was the appropriate standard of care for student supervision at Cresthaven.

[96] Dr. Cohen noted that one of the two supervising teachers, Ms. MacDonald, was not actively supervising during the recess because she was assisting the janitor, who was tossing balls down from the roof of the school. This led Dr. Cohen to derive an actual supervision ratio at the time of the incident of one to 168 students, the number of students in the school. Dr. Cohen concluded:

At the time that the incident occurred the teachers on supervisory duty did not have close proximity to the students involved in the incident, sightlines were obstructed, and in effect, the ratio of supervising teachers to students was 168:1 (i.e., one teacher for approximately 168 children). In other words, the teachers did not provide good supervision. Because of this, there was virtually no chance that the incident could have been prevented by a supervising teacher.

[97] In respect of Ms. Babits and Ms. MacDonald, Dr. Cohen gave the following opinion:

Neither of the teachers discharged the standard of care of a careful and prudent parent. Specifically, the two teachers responsible for supervision were not in a physical position with regard to proximity to the children on the playing field or clear sight-line of the children to see or hear signs that they would need to intervene. Moreover, Heather MacDonald was occupied with an activity irrelevant to her main job of supervising children during recess. Based on even the simplest definition of supervision as “being present”, supervision was inadequate given that both Tricia Babits and Heather MacDonald were not close enough to the boys in the soccer field to be considered to be “present.” That is, they did not have a clear sightline or hear an altercation.

Discussion on the General Supervision Issue

[98] I qualified Dr. Cohen as an expert witness in the area of psychology in respect of child behaviour, adolescent disorders, child supervision and language and learning disabilities. That was a determination of threshold reliability. I must now consider whether to accept her opinion evidence on the general supervision issue that the number of teachers provided for supervision of the Cresthaven Public School yard was inadequate.

[99] On reflection, although I qualified Dr. Cohen as an expert in terms of threshold reliability in this area of supervision, I find that she was testifying outside of her real area of expertise and reject her conclusions on the applicable standard of care in supervision.

[100] On the supervision issue, and particularly on how school boards should organize and staff schoolyard supervision, I find Dr. Cohen’s evidence to be unpersuasive. Despite her formidable curriculum vitae, Dr. Cohen had not taught elementary school nor had she supervised elementary schoolchildren; she had not devised a system for supervision, nor had she written on the subject. Her research in the area was carried out solely for the purposes of providing an expert opinion to the court. In my view, a literature review coupled with statistical information from the United States from 2002 and information from the Toronto District School Board current website is simply not adequate. As Hourigan J. observed in Walker v. Hydro One Networks Inc. [^33]: “It is inappropriate to qualify an expert where that expert’s source of proposed expertise comes from reviewing literature in respect of a subject matter which is outside the field of the witness’ education and training.”

[101] Dr. Cohen posits a supervision standard of 1:50 staff student ratio based on U.S statistics. I am troubled by the absence of any empirical evidence drawn from practice in Ontario. She did not advise whether any schools in Ontario apply that standard. She did neither quantitative nor qualitative research on the subject. While Dr. Cohen was critical of the School Board for not having a written policy, among other things, she does not provide evidence on the practice of Ontario school boards in setting such policies. The plaintiffs called no other evidence on the issue from teachers, principals or supervisory officers experienced in the area of supervision.

[102] It is obvious that more teachers doing yard duty would increase the effectiveness of supervision. Dr. Cohen does not say, because she could not, that if the number of supervising teachers on yard duty had been increased by one or two, depending on how her proposed standard ratio is applied, Tevin McNeil’s punch would have been prevented. Her conclusion that with the existing ratio: “there was virtually no chance that the incident could have been prevented by a supervising teacher,” does not mean that the general supervision was inadequate.

[103] I find Dr. Cohen’s manipulation of the ratio number by removing Ms. MacDonald from the equation while she was monitoring the dropping of the balls from the roof to be inappropriate and result-selective. The point of supervision is for the teacher to detect and to be at a hotspot whenever it arises. When it does, on Dr. Cohen’s analysis, another teacher must immediately appear to keep the ratio intact or else there would be an immediate breach of the standard of supervision; this is nonsense in all but emergency circumstances involving a number of students when one would expect other teachers in the school to come out. That was not this case.

[104] I also find Dr. Cohen’s criticism of the pattern of supervision to be unpersuasive. In my view the pattern adopted by the teachers was responsive to the nature of the school site, the structures on it, and to the way that the students were playing on the day in question. Students on the playing field are always going to be many metres away from a supervising teacher. Visibility is important and was maintained on the facts. But short of a teacher being right on the field very close to Tevin McNeil, perhaps close enough to catch the punch, and interfering with the play by being there, I see no way that ordinary supervision supplemented by another teacher or even two would have prevented the punch except fortuitously. And I see no reason why 7 year-old boys should not be able to go on to a playing field with a soccer ball during recess.

[105] Cliff Lee was punched in the vanishing moment, suddenly and without warning. The punch would not likely have been prevented, even if one or two more teachers had been present in the schoolyard.[^34]

[106] While many of Dr. Cohen’s more common sense observations about supervision were echoed in the evidence of school staff, the plaintiffs have not established on the balance of probabilities that the School Board and staff breached the applicable standard of care by having an inadequate number of teachers on yard duty, by their manner of performing their yard supervision duties that day, or by their actions on the day of the incident. I prefer the evidence of Principal Brown and the teachers as to the adequacy and effectiveness of the yard supervision practices at the school.

[107] I find that the staff of the school met the applicable standard of care in relation to supervising the schoolyard. There is, accordingly no breach on which to found defence liability in relation to general supervision of the schoolyard.

Issue Two: Should Tevin McNeil have been more closely supervised than other children?

[108] The plaintiffs take the position that, quite apart from the issue of general supervision, Tevin McNeil posed a greater risk to his peers than other students and ought to have been more closely supervised; the failure to do so breached the standard of care. Implicit is the assertion that if Tevin had been properly supervised, he would not have punched Cliff Lee and caused the bleed.

[109] The plaintiffs rely particularly on Dr. Cohen’s expert evidence and on Principal Brown’s cross-examination in which, the plaintiffs submit, he made “fatal admissions.” I address each element in turn after first laying out the evidence of the school staff.

The Evidence About Tevin McNeil

[110] Tevin McNeil’s Ontario student record (“OSR”) from junior kindergarten to Grade 2 was made an exhibit, including its hearsay content, without objection. The OSR for junior kindergarten and senior kindergarten is nondescript. A number of the skills identified in the senior kindergarten report card are marked as “beginning to develop” and “developed”. His teacher Susan Onn noted that Tevin “accepts responsibility for own behaviour” as a “developed” skill, while the skill that he “works and plays cooperatively with others” was marked as “beginning to develop”. The teacher noted that she would continue to work with Tevin “to improve his comprehension of language and meaning”.

[111] In the notes for senior kindergarten, Ms. Onn noted:

Tevin has had a good year in senior kindergarten. It has been gratifying to work with him for two years and to see the progress that he has made. Tevin enjoys playing with the many friends that he has made. He likes their company and has learned to share and cooperate with them.

[112] Ms. Onn expressed concern about Tevin’s emotional well-being and indicated that he would need “some extra help” to succeed in Grade 1. She thought that his “cooperative manner” was a good sign.

[113] Between senior kindergarten and Grade 1, Tevin attended a summer learning program focusing on literacy and mathematics. According to the record, he was only “beginning” in all of the recorded skills.

[114] Tevin’s Grade 1 report portrayed him as being slightly behind his peers in virtually all categories. His teacher, Barbara Cooke, noted in the report that he needed some assistance in math and reading skills. His marks were largely D’s with some occasional C’s. On the behavioural side she noted on the report card: “he is a gentle, happy boy who really tries to do his best but can be easily distracted by other students.”

[115] Erin Sederoff was Tevin McNeil’s classroom teacher in 1998. Her name then was Erin Sigal. She testified that she found Tevin to be pleasant. He got along with other students and tried very hard. He was not a top student. She did not believe that he had learning difficulties and did not find him to be a slow learner. She thought that he needed to work harder and found that he had no real difficulty expressing himself. Tevin’s report card for November 27, 1998 in Grade 2 was much better than his report in Grade 1 had been. There was nothing negative stated about his behaviour.

[116] There were three behavioural incidents in Tevin McNeil’s record in Grade 2 before his assault on Cliff Lee. Some months earlier Mr. Brown came upon Tevin McNeil and another student having a “tug-of-war over a ball” on the tarmac and encouraged the two to sort out their issue more sensibly. On his discovery Mr. Brown stated: “I was outside and a group of boys I believe were fighting over possession of a ball...so I just in this case talked to Tevin and asked him to resolve things peacefully with words rather than just trying to, you know, be physical.” He described it as a “minor physical tug-of-war over a ball” and describing the incidents he said that Tevin was not “pushing the fellow student”, there was no “punching involved” and, “he was just being aggressive in trying to get the ball away.”

[117] The second incident is recorded on a form entitled “Classroom Rules” dated September 12, 1998 bearing the name “Ms. Sigal”. In the section entitled: “What did you do that was not allowed in our classroom?” Tevin McNeil printed: “I did tacle [sic] football”. In the next section entitled: “What should you have done instead?” he printed: “Not play the game.”

[118] The third incident occurred on November 25, 1998, the day before the assault on Cliff Lee. The “conference record” form, apparently signed by his custodial parent Ethline Bennett noted: “Fighting at lunch recess”. Ms. Sederoff testified that the form might not be hers because it lacked an animal figure stamp that she customarily put on forms, but she was his teacher then. A form entitled “Classroom Rules” dated November 25, 1997 bore Ms. Sederoff’s name at the time, Ms. Sigal, and had the animal figure on it. In the section entitled: “What did you do that was not allowed in our classroom?” Tevin McNeil printed: “I was fighting”. In the next section entitled: “What should you have done instead?” he printed: “Tell him to stop.” Ms. Sederoff noted that she was not Tevin McNeil’s teacher in 1997 and could not explain the genesis of the form; it seems to me to be probable that the form relates to the event on November 25, 1998 despite the 1997 date. Mr. Brown was not aware of the previous day’s incident on the day of Tevin’s assault on Cliff. There is no evidence of what Tevin actually did on November 25, 1998 to warrant discipline. It was plainly not a physical fight because Tevin was not sent to the office.

[119] Mr. Brown testified that in his post-incident investigation he spoke to Christine Wiley, a lunchroom supervisor, who said the following about Tevin McNeil, according to Mr. Brown’s notes:

• Gets himself in scrapes
• Doesn’t think sometimes
• A little shove sometimes
• Not little demon
• Hardly ever comes to supervisors
• Trouble verbalizing/communicating
• Minor stuff
• No serious violence
• Just complaining

[120] Post-incident, there is a “Classroom Rules” form dated December 3, 1998 and signed by Ms. Sigal in which the behaviour that “was not allowed in our classroom” was written by Tevin as “I was bending someone’s hand.”

[121] Ms. MacDonald testified that she had heard a couple of things about Tevin McNeil’s difficulties in terms of sharing and cooperation but was unable to be more specific.

Dr. Cohen’s Assessment of Tevin McNeil

[122] Dr. Cohen was qualified to assess Tevin McNeil by her expertise in developmental psychopathology and by her training and experience. That said, her assessment was largely a file review exercise.

[123] Dr. Cohen posed the following question and answer relating to Tevin’s personal supervision:

Question 3: In light of Tevin McNeill’s [sic] background of impulsive behaviour and fighting the day prior, did the school board, school and teachers exercise the appropriate standard of care in sending Tevin McNeill onto the soccer field with his fellow students given their ages at the time, developmental issues regarding 7-year-old boys, and risks related to Tevin McNeill’s background?

[Answer] Allowing seven-year-old boys to be left alone to play is a risk both because boys generally are at higher risk of injury and because the judgment of children at this age is inconsistent. Moreover, Tevin McNeill can be assumed to have been less mature in his judgment and behaviour given his history of impulsive and disinhibited behaviours, fighting, and difficulty communicating verbally. Further, he did not have the quality of family support that diminishes risks related to these factors. Generally, Tevin should have been regarded as a boy who required closer supervision than other children.

[124] As with her formulation of the earlier question, I find Dr. Cohen’s formulation of this question to be tendentious and result-selective, signalling her partiality towards the plaintiffs.

[125] Dr. Cohen relied on her review of his Ontario Student Record (“OSR”) and the discovery transcripts of the principal in assessing Tevin McNeil. She also examined the police investigation reports about the incident. Dr. Cohen picked forensically through the possible clues in Tevin’s record; in doing so, she did not pay due attention to what would have been known to school staff before the incident, nor did she adjust for the benefit of hindsight.

[126] Dr. Cohen acknowledged that Tevin’s teacher in senior kindergarten, Ms. Onn, noted that he “had many friends and was cooperative.” His Grade 1 teacher, Ms. Cooke, described him as a “gentle, happy boy.” In an interview Dr. Cohen noted: “There were no issues about Tevin’s behaviour. [Ms. Cooke] saw him as a gentle boy who wanted to please. He required extra attention for academic work and not behaviour.”

[127] Dr. Cohen reported:

Tevin’s Physical Health Education teacher noted that Tevin sometimes forgets to listen carefully to directions before beginning an activity. As in grade one, it was recorded that he needed to be reminded to follow all of the safety procedures related to physical activity, equipment, and facilities.

[128] Dr. Cohen noted that Tevin McNeil’s Grade 2 teacher, Ms. Sederoff, “did not regard Tevin as an especially aggressive student but he did get into scuffles involving a group of students.” More specifically, Mr. Brown reported that she “had one or two situations where she had to counsel Tevin about pushing and shoving or perhaps play fighting, nothing at a serious level but something that she spoke to Tevin about “to guide his behaviour, moderate his behaviour for future growth.”

[129] Dr. Cohen noted that one of the incidents she described as “scrapes” was when Mr. Brown came upon Tevin McNeil “as being “aggressive” in trying to get the ball away (but) there was no physical fighting involved.”

[130] Dr. Cohen also referred to the comments of the lunchroom supervisor, Christina Wiley, who saw Tevin daily:

[She] reported that Tevin was not a child to get into major situations, that is, he was not a violent child. She regarded him as a quiet child who did not verbalize a lot. At the same time, she reported that he did get into what she referred to as ‘minor scrapes’ and ‘would shove sometimes” and sometimes did not think before he acted. One of these “scrapes” occurred just the day before the Incident. There was a note in the file, signed by Tevin’s guardian, about his fighting at lunch and the goal of Tevin making better decisions.

[131] I observe, however, that Dr. Cohen did not go on to cite Ms. Wiley’s other relatively exculpatory comments, that Tevin is “not little demon,” that his misbehaviour is “minor stuff” and there was “no serious violence.” If he had been a “little demon”, one would think his reputation as such would be well-known.

[132] Dr. Cohen also cited a police report in which a student is reported to have said: “If you do something that Tevin thinks is wrong then Tevin gets angry and he pushes or punches you.” She did not, however, indicate that the police investigation followed the incident; there is no evidence that this was known by school staff before the incident.

[133] Dr. Cohen’s opinion was this:

Taken together, although not formally diagnosed as learning disabled, the OSR indicates that Tevin McNeill had learning difficulties, including low average intellectual ability and problems with expressive language and reading. Children with these characteristics and who do not do well in school are at risk for aggressive behaviour [citation omitted] and bullying…Language and cognitive weaknesses do not inevitably lead to impulsive or aggressive behaviour but do pose a risk.

[134] Dr. Cohen took the position that seven-year-old boys require closer supervision, especially children with language problems, which she inferred Tevin had from a review of his academic record. She gave the opinion that:

Tevin was likely functioning at a developmental level that was lower than his same-age peers with respect to social cognitive problem-solving skills. Moreover, he displayed language problems associated with immature social problem solving. While language and cognitive problems do not inevitably lead to impulsive or aggressive behaviour they do pose a risk.

[135] Dr. Cohen disputed the judgment of the principal and staff:

Teachers and Mr. Brown did not regard Tevin’s aggressive behaviour as serious. However, there were an accumulation of events (sic) including aggressive acts (“scrapes”, “pushing and shoving”) and impulsive behaviour in the gym that should have led to closer supervision of Tevin McNeill. Moreover, two children reported behaviour in Tevin that can be considered to be examples of bullying.

[136] I find this paragraph to be questionable in terms of its accuracy and fairness. There were plainly three incidents of misbehaviour known to staff collectively, but there was no evidence that these incidents were comparatively serious. There was no evidence that Tevin McNeil’s purported “aggressive behaviour” as a seven-year-old boy was appreciably different than the behaviour of his peers. I have difficulty accepting that a need to remind a seven year-old student about safety procedures in gym can fairly underpin a statement that Tevin engaged in “impulsive behaviour in the gym”. The reference to the “bullying” behaviour came from two post-incident sources, being police notes of the investigation of the incident, and post-incident teasing by Tevin. There is no evidence that bullying behaviour was known to school staff before the incident.

[137] Further, there was very little corroborative evidence to justify Dr. Cohen’s strong opinion about Tevin McNeil’s “learning difficulties” and the effects on his behaviour, and no real effort to get at this evidence in examining school staff. The picture of Tevin painted by Dr. Cohen does not comport with the evidence of his teachers which she minimized for practical purposes in her report.

[138] In rhetorical terms, Dr. Cohen’s pattern in her report was to repeat herself, perhaps for persuasive emphasis. She effectively restated the same points noted above in this excerpt:

Seven-year-old children, especially boys, require closer supervision. Children who have difficulty communicating to resolve social conflicts also require closer supervision. Therefore sending young boys, and especially Tevin McNeil to a location where active supervision was not possible shows lack of judgment… Tevin was more likely to show impulsive and disinhibited behaviours, such as in the gym, in the schoolyard, and in the lunchroom. These were observed by his teachers, the lunchroom supervisor, and the principal but considered to be minor events. His peers experienced these characteristics of Tevin’s more directly however.

[139] The pattern repeats in her opinion about the principal, Mr. Brown:

Mr. Brown did not discharge the standard of a careful and prudent parent. He had not undertaken the serious responsibility of ensuring the safety of students at his school. Furthermore, Mr. Brown had directly observed an aggressive interchange initiated by Tevin McNeil, who did not take responsibility for his actions and heard from teachers that Tevin got into “scrapes” but had not considered this history to pose a risk. Moreover, following the Incident, Mr. Brown did not take apparent action to work with Tevin or his family to prevent further incidents. Therefore, Mr. Brown did not act as a prudent parent.

[140] I find that Dr. Cohen was selective in picking out facts. She did not pay sufficient attention to the timeline, and used facts anachronistically to support her opinion. She used rhetorical devices to persuade. In my view, rather than assessing the evidence impartially, Dr. Cohen was intent on proving that her opinion was correct, as the questions she reformulated strongly suggest. I am troubled as to the reliability of her evidence on this issue. I find that the evidence of Tevin McNeil’s teachers as to his nature, character and behaviour is more reliable.

[141] Dr. Cohen’s critical opinion on the standard of care in supervising Tevin McNeil particularly was this:

Tevin McNeil required closer supervision than other boys his age. He had a history of incidents of impulsive, disinhibited and aggressive behaviour, which should have resulted in closer supervision than is the case for other boys of similar age.

[142] This is squarely the position taken by the plaintiffs.

Principal Brown’s Cross-examination

[143] Mr. Balena’s approach to the cross-examination of Principal Brown took the roadmap prepared by Dr. Cohen. Principal Brown was cross-examined over two days. I found him to be an honest witness with a real affection for the children. He was devastated by the incident, as emerges in his answers about how he questioned Tevin McNeil:

I was obviously very anxious because of the severity of the injury and I was fr’ – you know, I mean obviously [Cliff]’s [in] a very – difficult situation… because I mean I was very anxious about this obviously terrible situation.

[144] Mr. Brown disputed Dr. Cohen’s suggestion that seven-year-old boys needed more supervision than older children. In his experience older children have a “propensity… to have more serious problems with behaviour.”

[145] Mr. Brown was cross-examined on the school’s approach to discipline. He expected teachers to keep records of behavioural problems; these were produced in this litigation. If a troubling pattern emerged, then he expected the teacher to contact him so that he could determine whether the child needed his attention:

Q. Given the fact that Tevin McNeil had at least three violations of the code of conduct that we know of prior to the incident November 26, 1998, I put it to you sir, that this – at that point constituted a serious violation, would you agree with that?

A. No.

Q. Three is not enough?

A. I don't agree they were serious situations.

Q. Okay.

A. They were situations that we needed to teach children how to behave. We were teaching the children academically how to be good learners; we were teaching them how to be good citizens, and they had to learn to be good citizens through experience, through trial and error, through counseling, through explaining to children if they were playing tackle football the dangers of tackle football and why we don’t allow it. So, we had to use that as a teaching moment to teach children how to respond and how to grow so that they didn’t engage in anti-social – excuse me – behaviours.

[146] The teaching philosophy behind this systematic approach to discipline is set out in this excerpt from his cross-examination.

[147] After this exchange came the answers that the plaintiffs say amount to fatal admissions:

Q. Sir, you’ve already given evidence that fighting was a rare occurrence at your school.

A. Yes, sir.

Q. You gave that evidence to my friend.

A. Yes, sir.

Q. And we now know that Tevin McNeil had his behaviour characterized as fighting on at least two occasions and arguably three; would you agree that that is no longer a rare occurrence in the ca’ – in the case of Tevin McNeil prior to November 26, 1998?

A. It’s, it’s a – it’s certainly a concern that as a seven year old boy he needed counseling and guidance as to how to behave in certain situations and how to learn to handle situations, you know, in a different manner.

Q. Yes, we talked about earlier, Mr. Brown, the need for seven year old children perhaps requiring something of closer supervision; we discussed that.

A. Um hmm.

Q. Yes?

A. Yes, sir; yes, sir.

Q. And we talked about their propensity for acting out as opposed to verbalizing their situations.

A. Um hmm, yes, sir.

Q. Yes, and in the case of Tevin McNeil, given his history – three violations – would you not agree with me, sir, that Tevin McNeil as of November 26, 1998, was a child in need of at least closer supervision then others?

A. Yes, sir.

Q. Would you also agree with me, sir, that in carrying out that closer supervision, given what we talked about earlier – the two elements of supervision – would you agree with the proposition, sir, therefore that it’s important as of November 26, 1998, to keep t’ – for the supervising teachers to keep Tevin McNeil in closer proximity to them so they can keep an eye on him? Is that not a fair proposition?

A. I’ – i’ – it’s fair, sir, yeah.

Q. You don't want that boy way off in excess of 100 or 150 feet. You want to keep him close to the teachers within eyesight of the teacher.

A. Yes, we do.

Q. And you want Tevin McNeil to be able to see the teacher supervising him to know, so he knows that he’s being supervised which may impact on his behaviour.

A. Yes, sir.

Discussion on Whether Tevin McNeil Should have been more closely Supervised

[148] I agree with the plaintiffs that the standard of care requires more intense supervision for a student who shows signs sufficient to raise a reasonable concern that the student might behave violently. Principal Brown testified that if a particular child posed a danger to other children, his expectation was that the child would experience more intense supervision. For example, children who require closer supervision would be kept closer to the teacher and some might not be let outside. Ms. Babits agreed that if a child had a history of acting out by, for example, pushing and shoving, that child would require closer supervision. The plaintiffs plausibly submit that if Tevin had been recognized as posing such a danger, he should have been supervised differently, which would have prevented his assault on Cliff Lee.[^35]

[149] To succeed on this ground, the plaintiffs must prove on the balance of probabilities that:

i. the school’s discipline system should have been capable of identifying any student who showed signs sufficient to raise a reasonable concern that the student might behave violently; and

ii. Tevin McNeil showed such signs which the school staff negligently failed to detect.

[150] I address the issues in turn, but make two observations: first, the issues must be assessed without the benefit of hindsight, considering only the information about Tevin available to school staff before the assault on Cliff; and second, it would be unreasonable to impute to school staff Dr. Cohen’s professional knowledge of developmental psychopathology as applied to Tevin, or her retrospectively comprehensive look at Tevin in which she took into account information from before and after his assault on Cliff Lee.

1. The Design of the School’s Discipline System

[151] A prudent and reasonable parent, on whom the standard of care is built, would reasonably expect a school’s discipline system to require school staff to monitor children and identify any student who shows signs sufficient to raise a reasonable concern that the student might behave violently, in order to keep children safe.

[152] That said, a prudent and reasonable parent would also recognize that a discipline system is necessarily ancillary to and forms part of the school’s educational mission, which is to teach children and to socialize them in a way that takes account of their ages and needs, including the need of young children for play and physical activity in groups. A prudent and reasonable parent would understand that no system can be perfectly effective and risk-free.

[153] The school’s discipline system and its lines of communication were explained by Principal Brown. The Code of Conduct of the school prohibited fighting, but he pointed out that a wide range of conduct falls under the “umbrella of fighting,” going from arguing and yelling, to pushing and shoving, to physical fighting. It is therefore important not to overstate the significance of the use of the word “fighting” in describing an instance of misbehaviour.

[154] If a teacher saw an actual physical fight happening, Principal Brown’s expectation was that the teacher would send the children to the office for discipline. Teachers deal with situations as they arise and make the professional assessment of whether it is necessary to bring a student’s misbehaviour to the principal’s attention (apart from instances of swearing at the teacher or physical fighting which had to be brought to his attention). Teachers had discretion, to be exercised with professional judgment, as to how they would respond in a disciplinary sense to an incident or series of incidents. This discretion was illustrated in the incidents described above.

[155] The system was based on a teaching philosophy designed to socialize the children using teaching moments while reserving outright discipline for more serious misbehaviour or for an accumulation of instances that might signal a deeper problem with a child. Since Cresthaven was an elementary school, the children would naturally tend to be in the company of only a few teachers who would see them day to day and get a sense of the discipline profile of each child, much as Ms. Sederoff had responsibility for Tevin McNeil. As Principal Brown stated in cross-examination: “The system was in place as if there was a, a situation in which a child was acquiring too many incidents of concern or misbehaviour, I was to be brought in, sir.”

[156] The plaintiffs led no evidence on the design of discipline systems generally, nor evidence that the system in use at the school was defective in design, or somehow inconsistent with the system and the practice in other schools.

[157] I find the school’s discipline system to have been reasonably designed in the context of an elementary school. It relied reasonably on the professional judgment of the teachers and of the principal. It should not be necessary, nor would it be functional, for every disciplinary decision taken in the school under the broad umbrella of “fighting” to be brought to the principal’s attention.

2. Did Tevin McNeil show signs sufficient to raise a reasonable concern that he might behave violently?

[158] To succeed on this issue, the plaintiffs need not prove that Tevin actually had violent tendencies, only that his behaviour showed signs sufficient to raise a reasonable concern that he might behave violently. In considering whether the plaintiffs have proven that fact, I must ignore the information obtained from the police investigation of the incident in which one student said that: “If you do something that Tevin thinks is wrong then Tevin gets angry and he pushes or punches you.” There is no evidence that this was known to school staff. I must also ignore the discipline incident in December of the school year.

[159] Before the assault on Cliff, school staff did not think that Tevin showed signs sufficient to raise a reasonable concern that he might behave violently. This is not surprising because the school had three uneventful years of experience with him in junior and senior kindergarten and in Grade 1. There was nothing in the record of those years to suggest that he was different than his normally rambunctious seven-year-old peers.

[160] Tevin’s Grade 2 teacher, Ms. Sederoff, had the most contact with him and would have known him best. She found that he was pleasant and got along with other students. Christine Wiley was the lunchroom supervisor who would also have had daily exposure to Tevin. She told Principal Brown that he: “Gets himself in scrapes, not little demon, minor stuff, no serious violence.” There is no evidence on how his behaviour compared with his peers.

[161] As noted, there were three pre-incident instances of misbehaviour. The first was a “tug-of-war over a ball” in which Principal Brown described Tevin as “being aggressive in trying to get the ball away.” The second involved tackle football, which, Principal Brown acknowledged, showed “aggressive conduct” on Tevin’s part. The third was described as “fighting” in the lunchroom the day before the incident. Since the umbrella of behaviours that falls under “fighting” is so broad, it is difficult to know how to characterize the conduct; there was no evidence on what Tevin actually did or if he was even the aggressor, but it was not physical fighting. Principal Brown did not agree that these three were “serious situations”; he characterized them as “teaching moments.”

[162] Principal Brown knew of the “tug-of-war over a ball” that he witnessed but not the other two instances of Tevin’s misbehaviour. Had he known of all three instances on the day of Tevin’s assault on Cliff Lee, would he have required Tevin to be supervised differently? As noted, his initial position in cross-examination was straightforward: Principal Brown said that they were not serious situations but teaching moments requiring no additional action.

[163] Under rigorous and pressing cross-examination, however, Principal Brown went further and made statements that the plaintiffs submit are fatal admissions. The full text is set out above. The cross-examination was specifically linked to the three instances of Tevin’s misbehaviour. In response to a question suggesting that fighting was not a rare occurrence for Tevin McNeil, Mr. Brown acknowledged that it was an issue. He was led to admit that Tevin “was a child in need of at least closer supervision than others”, that it was important “as of November 26, 1998, …for the supervising teachers to keep Tevin McNeil in closer proximity to them so they can keep an eye on him,” not “way off in excess of 100 or 150 feet,” and that “you want Tevin McNeil to be able to see the teacher supervising him to know, so he knows that he’s being supervised which may impact on his behavior.”

[164] In my view, Principal Brown’s statements in cross-examination must be discounted for two reasons. First, I have found no fault in the design or operation of the school’s discipline system; notice of the two instances of Tevin McNeil’s misbehaviour were not sufficiently serious to warrant communication to Principal Brown. It would be incongruous to take them into account in assessing negligence.

[165] Second, Principal Brown’s statements in cross-examination must be put into context. When he testified at trial he had complete knowledge of Tevin’s misbehaviour before and after the assault on Cliff Lee. His knowledge went beyond the three instances of misbehaviour known to staff collectively before the incident. At trial he also knew of the terrible consequences for Cliff and was evidently deeply sympathetic to Cliff’s plight, quite what one would expect of a caring teacher. I found Principal Brown to be a biddable witness. His admissions were given with the benefit of hindsight, and must be considered in that light and discounted accordingly.

[166] School staff who knew Tevin McNeil best did not consider that he might behave violently. I find Principal Brown’s original assessment that the three instances of Tevin’s misbehaviour were not serious situations but teaching moments requiring no additional action to have been a fair and reasonable assessment of the situation given in the light of those three instances alone. This was also Teacher Sederoff’s assessment of two of the instances of Tevin’s misbehaviour. This collective assessment is supported by Tevin’s history.

[167] This case involves seven year old boys who, one hardly needs to take judicial notice, routinely yell, shout, argue with one another, jostle, push and shove, all of which falls under the school’s rubric of “fighting,” but would be quite normal and amenable to the school’s ordinary disciplinary system without a report to the principal. The fact that a child, on occasion, manifests one or more of these behaviours is not reason enough to label him as showing signs that he might behave violently and sequestering him. I find that none of the three instances of Tevin’s misbehaviour, taken separately or together, is sufficiently serious to amount to reasonable signs that he might behave violently.

[168] The plaintiffs have not proven on the balance of probabilities that the three instances, taken together, objectively showed signs sufficient to raise a reasonable concern that Tevin might behave violently. I am not satisfied on the balance of probabilities that school staff knew or ought to have known on the date of the incident that Tevin might behave violently so as to prevent the assault by supervising him differently. The defendants are not liable for failing to supervise Tevin McNeil more closely.

[169] I therefore dismiss the action. This is a hard and sad case, and I have reached this conclusion only after long and anxious consideration.[^36]

Part Two: Damages

[170] In this part of the reasons for judgment, I address the issue of compensation even though I have not found the School Board or members of its staff to be liable. If the defendants had been found liable to the plaintiffs, how much would each plaintiff be entitled to receive and why?

[171] In cases of personal injury, an injured plaintiff is entitled to compensation, known as damages, for two kinds of loss.

1. General Damages

[172] The first kind is sometimes referred to as “general” damages, or “non-pecuniary” damages because they are not attached to any particular expense. As the Supreme Court of Canada noted in Andrews v. Grand & Toy Alberta Ltd., these damages are intended to provide the injured person “with reasonable solace for his misfortune,”[^37] including “pain and suffering, loss of amenities and loss of expectation of life.”[^38] As the Supreme Court said in Lindal v. Lindal: “The purpose of making the award is to substitute other amenities for those that have been lost, not to compensate for something that has a money value.”[^39]

2. Pecuniary Damages

[173] A plaintiff can recover compensation for “pecuniary” loss, so-called because the components of it can be measured in terms of expense. The philosophy behind pecuniary damages is that the plaintiff is entitled to “full compensation” for the financial losses suffered being: “the amount with which may reasonably be expected to be expended and put in the injured party and the position he would have been if he had not sustained the injury.”[^40] The applicable principle is: “The plaintiff is entitled to full compensation for pecuniary loss past and future, subject, with respect to the loss of prospective earnings, to allowance for the contingencies of life and a discount for accelerated payment.”[^41]

[174] But the court recognizes that “a plaintiff who has been gravely and permanently injured can never be put in the position he would have been in if the tort had not been committed…money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve the mental or physical health of the injured person, it may properly form part of a claim.”[^42] Since there cannot be complete or perfect compensation, an award must be “moderate and fair” to both parties. There is tension between “full compensation,” which implies a certain degree of generosity to the plaintiff, and the standard of moderation and fairness, which limits the first impulse.

[175] The plaintiff parents claim damages under Section 61(1) of the Family Law Act for their “pecuniary loss resulting from the injury” to their son, Cliff. They did not, however, tender any evidence of such loss.

[176] Cliff Lee claims pecuniary damages for the costs of future care and for loss of future income. With respect to costs of future care, the onus is on the plaintiff to prove them on the balance of probabilities. For future loss of income, the onus is on the plaintiff but the burden is somewhat relaxed; he must prove that there is a “substantial possibility” of the particular loss based upon expert or cogent evidence.[^43] In Graham v. Rourke,[^44] which dealt with future economic loss arising from a motor vehicle injury, the Court said that the possibility must be “realistic as opposed to a speculative possibility.” The Court added:

A Trial Judge who is called upon to assess future pecuniary loss, is of necessity engaged in a somewhat speculative exercise... A Plaintiff who seeks compensation for future pecuniary loss, need not prove on a balance of probabilities, that (his) future capacity will be lost or diminished ... if the Plaintiff establishes a real and substantial risk of future pecuniary loss, (he) is entitled to compensation.[^45]

[177] In Gerula v. Flores,[^46] the Ontario Court of Appeal said: “The plaintiff need only satisfy the trier of fact on the evidence that there is a reasonable and substantial risk of loss of income in the future in order to be entitled to damages under this heading.”[^47] Once the plaintiff has established that there is a substantial possibility of future loss, the court must quantify the risk and accordingly reduce the damages payable. I return to this issue below.

3. Remoteness

[178] The defence did not proffer evidence on the damages issue. Mr. Critoph did argue that the damages were too remote, citing Mustapha v. Culligan of Canada Ltd.[^48] I considered the remoteness issue at length in Greenhalgh v. Douro-Dummer.[^49]

[179] The conceptual framework for addressing the question of foreseeability or remoteness is explained by Professor Ken Cooper-Stephenson, in Personal Injury Damages in Canada.[^50] He notes: “A fault-based system of civil responsibility for accidents must have some limits on the extent of recovery and the question is therefore not whether such limitations should exist, but exactly where the lines are to be drawn.”[^51] As Cooper-Stephenson notes: “The Wagon Mound (No. 1) required merely that the damage must be ‘of such a kind’ as the reasonable man should have foreseen. It has become clear from subsequent decisions that a relatively broad categorization of kinds or types of damage is involved.”[^52]

[180] In Ontario v. Cote,[^53] the Supreme Court held, per Dickson J.: “It is not necessary that one foresee the ”precise concatenation of events”; it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred.”

[181] In my view, that Cliff Lee might be injured in a schoolyard assault was entirely foreseeable and not too remote. The surprising outcome of the assault arises not from the fact or the nature of the assault, but from his nature as a thin-skulled plaintiff, which the law readily recognizes.

The Evidence Related to Damages

[182] Cliff Lee and family members gave evidence about his current difficulties and his level of functionality. The plaintiffs also called a number of experts who testified about his current and future difficulties. The cost of future care report prepared by occupational therapist Beverlee Melamed is reinforced by the evidence of the other experts. Their evidence also underpinned the calculation of future income loss carried out by actuary Bruce Michael.

[183] The defence led no contrary evidence. Mr. Critoph ineffectively cross-examined a number of the witnesses in an effort to minimize Cliff Lee’s difficulties. I largely accept the plaintiffs’ evidence on the issue of Cliff Lee’s disabilities and the remedial damages that flow from them. I summarize the evidence below.

Cliff Lee’s Evidence on Damages

[184] Cliff Lee described his current physical impairments. He has a certain degree of left side paralysis of his left arm and left leg. He has difficulty walking for any distance or lengthy of time. He has no functionality in his left hand.

[185] Cliff has vision field limitations on the left side in both eyes. He is effectively blind on that side without peripheral vision. He cannot visually perceive an object until it is in front of him. As a result he bumps into people and things and can fall. One fall led to a broken left arm, which has made it even worse.

[186] Cliff described his cognitive impairments. He noted that he has delayed processing speed and problems finding words. He lacks concentration and can only focus on a task for a limited period of time, about half-an-hour. He tires easily. His memory has been affected, particularly his spatial memory, so he has difficulty with bus transportation. As a result of the physical and mental fatigue that he experiences, Cliff takes naps frequently throughout the day, including during classes, where he might take a 20-minute nap.

[187] Cliff testified that he suffers from emotional problems, particularly depression and high levels of anxiety. He said that he is not able to accept his injury and feels depressed over it. He worries a lot about his future, his prospects, how he will earn a living, and whether he can have a family. Cliff believes he will not be able to live alone given his disabilities.

[188] Despite his disabilities, Cliff was able to continue with his education and graduated from high school with high marks. He entered Queen’s University and lived in residence away from home. He found that experience to be very difficult because he needs assistance with certain things. The distances between the buildings challenged his ability to walk and fatigued him. He had difficulties with self-care. After the year was over it was decided to bring him home.

[189] Cliff now attends the University of Toronto, Scarborough Campus and is continuing on with a Bachelor of Arts program in Psychology. He is doing better than he was at Queen’s University. He has certain accommodations including a note-taker for classes and additional time to complete exams and tests. His mother usually drives him to school and also picks him up. He takes the bus on occasion and finds it difficult.

[190] In terms of his future prospects, Cliff believes that his marks are not good enough for him to pursue a graduate program. He is thinking about attending college to get some work-related skills but he is not sure that he will be able to find a job in view of his disabilities. Had he not been injured, Cliff believes that he would have pursued professional or graduate programs at the Masters or Doctorate level having something to do with mathematics, which was an area of strength before the injury.

[191] Cliff has had no real treatment for any of his disabilities since his discharge from Bloorview in July of 1999. He believes he would benefit from physiotherapy, occupational therapy, rehabilitation and counselling.

[192] Cliff’s father and mother both taught at a polytechnical university in Hong Kong before immigrating to Canada in 1997. They value education. Their daughter Susanne Lee is currently attending Queen’s University in a B.Comm program and is doing extremely well. She believes that her brother would have done as well or better than her but for the injury.

The Plaintiffs’ Expert Evidence on Damages

[193] The plaintiffs retained a number of experts, from most of whom there are reports spanning a few years. This evidence permits me to identify a certain trajectory.

[194] Dr. Richard Perrin is a neurosurgeon. His first report, dated September 23, 2011, explains Cliff Lee’s disabilities:

As a direct result of the intracranial catastrophe and its management, Mr. Lee has been left with severe and permanent sequelae including: spastic hemiplegia affecting the left side with wasting of the left arm and apparent left leg shortening attributable to pelvic obliquity originating from paraspinal muscles dysfunction and resultant scoliosis. He has been left with incongruous left homonymous hemianopsia, and facial asymmetry.

While he has made a decent recovery physically, Cliff has been left with significant neuro-psychologic abnormalities and which will limit his future prospects including employability.

[195] Dr. Andy E.B. Cancelliere is a neuro-psychologist. He administered a number of psychological tests. Cliff Lee’s profile over time is consistent and relatively stable, but there are improvements and deteriorations. The brain injury to his right hemisphere has left him in a situation where his left hemisphere is performing at superior levels, while his right hemisphere is performing relatively poorly, with the highest discrepancy that Dr. Cancelliere has ever seen. He found that:

Cliff remains severely compromised in his quality of life. He is socially relatively isolated and is not achieving/accomplishing at a level commensurate with his premorbid status or which he (and his family) is comfortable with. His obvious brain injury is stigmatizing and he experiences considerable discomfort/embarrassment and self-consciousness around this. The resultant social avoidance compounds his frontal lobe mediated apathy and lack of initiative. Fatigue is a major disabling factor as he becomes very tired in the afternoon (after lunch) and trying to attend class at such a time is “terrible.”

[196] Dr. Cancelliere concluded that while Cliff will be able to complete his undergraduate degree, he will not likely be able to engage in competitive employment. His problems are permanent and will get worse if he does not have appropriate support including high levels of structure, a comprehensive treatment program, and psychotherapy. While Cliff has not yet indicated readiness for counselling, Dr. Cancelliere believes that the need for counselling is inevitable. He also points to the prospect of accelerated onset of dementia in older age.

[197] Dr. Shawn E. Scherer is a vocational-rehabilitation psychologist. He carried out a full psycho-vocational assessment including interviews and tests. In his opinion, given Cliff’s pre-morbid abilities, his family background, and their achievement levels, he would have been in the superior range at the 90 to 95 percentile of individuals, and he could have gone to graduate school or pursued a professional degree.

[198] Over the years, Dr. Scherer has observed deterioration in Cliff’s emotional state as he has begun to recognize his deficits. Dr. Scherer found him to be a very determined young man who is succeeding in situations where most people would not succeed. In his view, Cliff Lee can finish his degree. The range of possible employment positions is limited and Dr. Scherer doubts that Cliff would be able to retain a job over the course of several years. He considered it to be improbable that Cliff would be working full-time because such work would require a balance in the rest of his life that he would not likely be able to achieve due to the energy he requires for ordinary functioning. Cliff could be successful at performing part-time work, but, given Cliff’s disabilities, he is unlikely to be able to work to normal retirement age, even part-time. Perhaps 10 years is all that can be expected.

[199] Dr. Scherer’s report states: “He will require a significant amount of external support in order to have a chance at managing even part-time work.” In terms of living arrangements: “He is incapable of living completely independently and will likely require some degree of daily support on a permanent basis.” Dr. Scherer’s final conclusion is: “Overall, this young man’s injuries have resulted in impairment across every domain of function and have negatively impacted on his overall quality of life.”

[200] In cross-examination, Dr. Scherer agreed that Cliff would qualify for a government job and that governments do provide preferential employment for the disabled. But the public sector still requires the employee to be capable of doing the job with reasonable accommodations. It would be realistic for Cliff to work no more than 16 to 22 hours each week. Dr. Scherer’s evidence was logical, realistic and was supported by the evidence of Cliff’s functioning in daily life, and through the tests administered to him.

[201] Dr. Peter G. Rumney is staff pediatrician at Holland Bloorview Kids’ Rehabilitation Hospital and has an expertise in acquired brain injury rehabilitation. In general terms, his evidence supported the evidence of Dr. Cancelliere and Dr. Scherer concerning the constellation of physical and mental problems facing Cliff Lee.

[202] The plaintiffs called Dr. Douglas Misener, who is an expert clinical psychologist in pediatrics and was qualified as a rehabilitation psychologist. Consistent with the other psychologists called by the plaintiffs, Dr. Misener testified that Cliff Lee has an adjustment disorder with depressed mood. He will have difficulty transitioning to employment. In the future, he will need more services to pick up things that his family is now doing for him.

[203] Dr. Misener believes that Cliff Lee will not likely succeed in competitive employment given all of the issues facing him. In cross-examination, he resisted the suggestion from Mr. Critoph that the information that he received from Cliff Lee’s parents and that he relied on might well be biased. Dr. Misener testified that he tested the parental observations against the whole picture, including psychological tests, and found that the evidence was consistent. Further, Cliff Lee’s tendency to underreport his difficulties is consistent with the type of brain injury that he sustained.

[204] Dr. Misener’s evidence was consistent with that of the other psychologists. He supported Ms. Melamed’s recommendations for services, which he thought were typical of what would be required for someone in Cliff Lee’s position.

[205] Dr. C. Seyone was the treating neuropsychiatrist for Cliff Lee at Bloorview from July 2002 to September 2003. He was also retained to provide expert evidence. In his view the injuries and Cliff Lee’s left hemiplegia/hemiparesis would continue to impact on his social and recreational life as well as his own self-concept. He has a “severe cognitive disorder” and Dr. Seyone did not believe that he would improve. Because of his particular form of brain damage:

Cliff is very dependent on his parents for support, guidance and even to an extent, monitoring from a more medical perspective. Cliff’s insight and judgment is poor. As such, he requires external structure and guidance, as without it, it is likely that Cliff may indulge in activities that may be unsafe or irresponsible.

[206] Dr. Seyone gave the opinion that Cliff Lee would not be likely to enter the competitive workforce. He noted that patients with his symptoms can do well when they are propped up or “scaffolded”, but if those supports are withdrawn then there is not enough internal structure to maintain the patient. The family and university life assisted in sequencing tasks in such an order that Cliff Lee can complete them. But in the real world, things are not that simple and in the absence of such scaffolding, things would break down for him.

[207] Dr. Seyone noted that over time Cliff has developed mood issues and was quite sad and depressed, even expressing passive suicidal ideation. He was having more difficulty coping with the course load and with self-esteem issues. Dr. Seyone predicted: “Poor self-esteem, mostly social isolation and worsening neuropsychiatric issues.” He believes that Cliff will require: “ongoing attendant care and I feel that this is relatively indefinite. He would probably require four to six hours per day at the best of times with it being maintained indefinitely.”

[208] Finally, Dr. Seyone gave the opinion that Cliff Lee’s prognosis is poor. If Cliff develops the viewpoint that he will not enjoy “a normal lifestyle, the likelihood is that he would “give up” which would then lead to a significant worsening of his neuropsychiatric status.” In short, Dr. Seyone’s neuropsychiatric evidence supports the psychological evidence concerning Cliff Lee’s current functioning and his prognosis.

[209] Dr. Ken T. Fern is an orthopaedic surgeon. He gave the opinion that Cliff has developed chronic pain in his neck and back related to his left-sided hemiparesis. He referred to the possible “development of post-traumatic osteoarthritis or potentially the development of segmental instability in his spinal regions.” Dr. Fern predicted future orthopaedic problems for Cliff Lee: “His altered gait and pelvic obliquity will likely lead to increased stresses on his neck and back.” These may lead to degenerative changes that may require surgical intervention including the replacement of joints. He estimated the chances of those consequences in the neighbourhood of 25 to 50 per cent, within the next 10 to 20 years. Dr. Fern pointed out that because of the impairment to Cliff Lee’s left field of vision: “He is at risk of potentially falling and if he should sustain a fracture, that would require orthopaedic surgical intervention.”

[210] The outcome, in Dr. Fern’s opinion, is that “Mr. Lee will have difficulties maintaining any type of employment” and would be able to work on a part-time basis, but only with “significant support from work and from outside sources.” From an orthopaedic perspective, Dr. Fern does not believe that Cliff will be able to work through to normal retirement age.

General and FLA Damages

[211] In Andrews, the Supreme Court set a cap on general damages.[^54] For the purposes of this case, the applicable cap for general damages has grown to about $350,000. Given Cliff Lee’s potential and the extent of his disabilities I would fix general damages at $300,000.

[212] The plaintiffs Charles Lee and Hannah Lee, as Cliff Lee’s parents, and Susanne Lee, as his sister, claim damages under section 61(2)(e) of the Family Law Act, which refers to: “an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury…had not occurred.” I would fix FLA damages at $50,000 for each parent and $30,000 for Susanne Lee.

Cliff Lee’s Future Care Needs

[213] The plaintiffs rely on the evidence of Beverlee C. Melamed, an occupational therapist, and the financial valuation of his needs carried out by Bruce Michael, actuary.

The Evidence of Beverlee C. Melamed, Occupational Therapist

[214] Ms. Melamed graduated in 1976 from McGill University with a Bachelor of Science in Occupational Therapy. Since 1993 she has been engaged in private practice as an occupational therapist. The emphasis of her practice is working with individuals who are recovering from traumatic acquired brain injuries. She prepared a report on the future cost of care for Cliff Lee with the assistance of Romy Berger, who is also an occupational therapist.

[215] Ms. Melamed and Ms. Berger conducted a home visit, and reviewed the medical documentation available and completed a home visit on July 27, 2011. They also interviewed Cliff Lee independently. They researched market value costs for professional service-providers in estimating the cost of future care.

[216] Ms. Melamed used the form that she uses in assessing future needs for attendant care for victims of automobile accidents. I find this to be a useful way to organize the assessment. She considered the following functions and allocated the following times for necessary attendant care:

PART 1: LEVEL ONE ATTENDANT CARE:

Routine Supervisory Care

Dress and Undress

At this time, Mr. Lee is able to complete dressing and undressing independently, except for opening and closing his buttons, zippers and shoelaces.

Time allotted in this are: 70 minutes per week

Grooming

Mr. Lee is unable to clip his fingernails on his right hand, as he does not have functional movement of his left hand.

Time allotted in this are: 10 minutes per week.

Feeding

Mr. Lee is unable to prepare meals and requires assistance with cutting his food, as he does not hand (sic) any functional strength in his left hand. Mr. Lee requires support with lifting and carrying heavy pots/pans, cutting and preparing good and cutting food to eat.

Breakfast: 15 minutes/day x 7 days/week = 105 minutes/week

Lunch: 25 minutes/day x 7 days/week = 175 minutes/week

Dinner: 45 minutes/day x 7 days/wee = 315 minutes/week

Mobility

Due to Mr. Lee’s left visual field cut he is unable to obtain a license (sic) and is restricted with all community mobility. He takes public transportation however there are occasions where he is required to travel longer distances where public transportation may not be available. In addition, taking public transportation is strenuous for Mr. Lee due to his physical limitations, pain and fatigue. Mr. Lee requires assistance with community mobility, as is permitted under the Ontario Society of Occupational Therapy (OSOT) guidelines.

Time allotted in this area: 630 min/week

PART 2: LEVEL 2 ATTENDANT CARE Basic Supervisory Functions

Hygiene

Due to Mr. Lee’s physical limitations, pain and fatigue he experiences difficulty with respect to maintaining a clean and safe environment. Mr. Lee requires assistance in the bedroom and bathroom to ensure cleanliness, safety and security (i.e. no tripping hazards, hanging up clothes)

Tim allotted in this area: 90 minutes/week

Co-ordination of Attendant Care

Time allotted in this area: (as permitted) is 60 minutes is allotted and recommended for Mr. Lee to coordinate his attendant care, organize his assistance, travel, meals etc.

PART 3: LEVEL 3 ATTENDANT CARE Complex healthcare and hygiene functions

Exercise

Due to the injuries Mr. Lee sustained in this accident, he is left with significant muscle wasting, decreased sensation on his left side and poor balance. It is critical that Mr. Lee make a conscious effort to complete exercises and stretching in order to help improve and/or maintain his physical abilities. As Mr. Lee has significantly impaired balance, he requires assistance at the gym from a personal trainer to help build and maintain strength and stamina.

Time allotted in this area: 90 minutes per week.

SUMMARY CALCULATIONS FOR ATTENTION CARE (As per Form 1 attached):

• Part 1, Routine Personal Care: 1515 minutes per week = $977.17/month
• Part 2, Basic Supervisory Functions: 210 minutes per week = $105.35/month
• Part 3: Complex healthcare, hygiene functions: 90 minutes per week = $96.75/month

Total Attendant Care Needs, as per form 1: $1,179.27 per month

[217] In relation to current housekeeping tasks, Ms. Melamed divided Mr. Lee’s needs into two timeframes: first, while he is living at home until the age of 25, and, second, while he is living on his own at age 25 and subsequently. This division is based on Mr. Lee’s desire to eventually leave home. The different tasks assessed under this heading are as follows: Meal preparation; Clean dishes; Sweeping/mopping; Dusting; Bathroom cleaning; Ironing; Bed making; Laundry; Garbage removal; Vacuuming; Grocery shopping; Car maintenance, gas et cetera. All of these tasks are now being done by family members.

[218] Ms. Melamed assessed a figure of 310 minutes per week or 5.2 hours per week for these tasks. When Mr. Lee is living on his own, she anticipated that the total housekeeping requirement will be 875 minutes per week or 14.6 hours per week.

[219] Ms. Melamed then costed the service recommendations to be performed by individuals working at market rates. She separated out assessment costs, fixed costs and ongoing costs. Included in these numbers were expenditures for materials and supports such as splints for Cliff’s left leg, custom orthopaedic shoes, and custom equipment such as an ergonomic work station, a laptop computer, a smart phone and so on. She estimated total fixed costs in the amount of $191,433.44, and total annual recurring costs of $62,299.69.

[220] Ms. Melamed gave her evidence in a straightforward and convincing way. Her evidence was not shaken on cross-examination and there is no contrary evidence. I accept Ms. Melamed’s evidence.

The Evidence of Bruce Michael, Actuary

[221] Bruce Michael is an actuary who has given evidence in many cases. He prepared an actuarial valuation to determine the present value of future extraordinary care costs for Mr. Lee as at January 1, 2012, based upon Ms. Melamud’s report.

[222] Mr. Michael took a purely conventional approach to the valuations and carried out his calculations consistently with the requirements of rule 53.09 of the Rules of Civil Procedure. I am satisfied that the following calculations accurately value Ms. Melamed’s recommended program:

Present Value of Total Cost of Extraordinary Care
Item	Present Value
Future Attendant Care	$ 568,597
Housekeeping	$ 483,470
Medical & Rehabilitation	$1,635,375
Total Present Value of Costs	$2,687,442

[223] I accept Mr. Michael’s calculations of the costs of future care of Cliff Lee and fix these damages at $2,687,442.

Cliff Lee’s Loss of Future Income

[224] The evidence is clear that Cliff Lee’s income earning potential has been permanently diminished by the brain injury that he suffered.

[225] Mr. Michael prepared an actuarial valuation to determine the present value of future wage loss less future residual income for Cliff, valued as at May 22, 2012. As with the first report, Mr. Michael used the required discount rates set out in rule 53.09 of the Rules of Civil Procedure. In carrying out these calculations, Mr. Michael did not take into account any particular mortality figure for Cliff but used the mortality figure for males with his date of birth. Mr. Michael also took into account contingencies such as the possibility of future disability unrelated to Cliff Lee’s actual disabilities, early retirement, and the possibility of unemployment due to ill health or economic reasons, as embodied in the general employment rates for males generated by Statistics Canada. He assumed that Cliff would work to age 65, but early retirement has been taken into account through the use of general employment rates.

[226] Mr. Michael developed three scenarios. He picked them out of Dr. Scherer’s report on Cliff’s employment prospect. His calculation are set out in the following table:

Scenario One – Undergraduate Degree in Sociology
Item	Not Employable	20 Hours to Age 50	Admin. Clerk to Age 55
Future Earnings Loss to 65	$2,498,508	$2,498,508	$2,498,508
Future Residual Earnings		($678,773)	($641,427)
Future Earnings Loss	$2,498,508	$1,819,735	$1,857,081

Scenario Two – Master’s Degree in Sociology
Item	Not Employable	20 Hours to Age 50	Admin. Clerk to Age 55
Future Earnings Loss to 65	$2,414,860	$2,414,860	$2,414,860
Future Residual Earnings		($678,773)	($641,427)
Future Earnings Loss	$2,414,860	$1,736,087	$1,773,433

Scenario Three – Earned Doctorate in Sociology
Item	Not Employable	20 Hours to Age 50	Admin. Clerk to Age 55
Future Earnings Loss to 65	$2,542,794	$2,542,794	$2,542,794
Future Residual Earnings		($678,773)	($641,427)
Future Earnings Loss	$2,542,794	$1,864,021	$1,901,367

[227] Within each scenario there are three different options. The first, which generates the highest income level, is that Cliff Lee is simply not employable in the future. The second scenario has him working part-time, at 20 hours a week in the same job category, but to age 50 on the basis that he would retire early. The third option is that he would work 18-24 hours a week to age 55 in a low-end job category of administrative clerk.

[228] Mr. Michael explained that he used the male employment rates, but adjusted them to reflect the level of education, and then factored in disability participation rates, which show more time off and more time in job searches. In all of the scenarios, the differing benefits packages have been taken into account because those packages are generally lower for part-time employees. The data were taken from Statistics Canada.

[229] I find that Mr. Michael’s adoption of the scenarios proposed by Dr. Scherer is reasonable. Having considered the evidence of all of the experts and of Cliff Lee, I find that the most likely prospect for him is the second option of the third scenario. In my view, Cliff had great potential. He is ambitious and driven despite his disabilities. I believe that he will find some kind of job, but it will be at a relatively lower level given his disabilities. He will also need to retire early. I therefore fix the amount of damages for loss of income at $1,864,021.

3. Should Damages Be Discounted?

[230] The defence argues that Cliff Lee had a significant chance of an AVM event had it not occurred when he was seven years old and that this fact must be taken into account in determining damages.

[231] As noted earlier, once the plaintiff has established that there is a substantial possibility of future loss, the court must quantify the damages, and then reduce them in proportion to the risk of their actual occurrence. Thus, if a plaintiff establishes a 35% chance of a future loss of $100,000, the plaintiff will be awarded 35% of $100,000, or $35,000. This approach was endorsed in Schrump and Longeuay v. Thomas,[^55] which cited the decision of the English Court of Appeal in Moeliker v. A. Reyrolle & Co. Ltd.[^56]

[232] In Graham v. Rourke, Doherty J.A. stated:

A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all or nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss.[^57]

[233] Cliff Lee is both a “thin skull” and “crumbling skull” plaintiff. Much has been written on “thin skull” and “crumbling skull” plaintiffs. The classic discussion is found in the Supreme Court of Canada’s decision in Athey v. Leonati.[^58]

[234] Cliff Lee is plainly a thin-skull plaintiff because his AVM rendered him especially vulnerable to serious harm from Tevin McNeil’s punch. Accordingly, the following statement in Athey applies: “The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.”[^59]

[235] The evidence also leads to the conclusion that Cliff Lee is a “crumbling skull” plaintiff; had he not bled as the result of Tevin McNeil’s punch, the strong probability is that he would eventually have bled with possibly catastrophic consequences. The issue is to what extent his damages must be discounted to account for this eventuality in light of the statement in Athey, that: “The plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.”[^60] The evidence demonstrates that a substantial discount is warranted, but does not help much with the calculation of the discount.

[236] Dr. Perrin and Dr. Wallace agreed that, statistically, the incidence of a bleed on the part of a diagnosed AVM patient is one to four per cent per year, and that the probability of a bleed is cumulative. Dr. Wallace testified that the statistic is generally accepted and flows from a number of studies including his. He was adamant, however, that from a scientific perspective one cannot use that level of incidence to predict Cliff Lee’s chances of a bleed on the day before the event in question because he was then undiagnosed. In his view, there are no scientific data to back up such a prediction. But it is implicit in Dr. Wallace’s evidence that there was a chance that Cliff Lee would have bled in the future if he had not on the day of the incident.

[237] The court must do the best it can with what it has. I see no reason not to take the approach that Mr. Critoph suggests of assuming, for the sake of common sense analysis, that Cliff Lee was diagnosed on the day before the incident. At that moment, his risk would have been in the one to four per cent range per year going forward into the future. The table of risk on Dr. Wallace’s Study Group’s website reproduced above shows that the cumulative risk of a brain breed in someone with an AVM is significant.

[238] In cross-examination, the actuary Mr. Michael admitted that his calculations did not take into account that the expenses posed by Ms. Melamed might have been incurred as a result of the AVM at some other time in Cliff Lee’s life. Mr. Critoph then took Mr. Michael through a series of calculations, based on the statistic in Dr. Wallace’s report that people with an AVM like Cliff have a one to four per cent chance every year of the AVM rupturing. Mr. Michael’s calculations are set out in the following table:

Probability of AVM Event occurring to Cliff Lee
Annual Risk	1 %	2.5 %	4 %
Elapsed Time
20 years	18.2 %	40 %	56 %
30 years	26 %	53 %	71 %
40 years	33 %	64 %	80.5 %

[239] This table does not predict the severity of an AVM event or the degree of disability that would result, but only the mathematical probability of an AVM event over the time periods.

[240] The law appears to be that it is inappropriate to base an adjustment of the damages figure on Cliff Lee’s life expectancy. Putting it differently, it is inappropriate for the court to notionally establish a life expectancy after which benefits warranting damages would be eliminated. Instead the court is directed to adopt a discount that holds the various factors together.

[241] The defence proposed to take the midpoint of the range of the one to four per cent risk of a bleed based on the actuary’s calculation at 2.5%, with an assumption that Cliff would survive such a bleed with problems, and proposed a risk discount of 33%. The plaintiffs propose a discount of 17.5%, which is half of the 35% figure given for “significant functional impairment” in bleeds taken from Dr. Wallace’s study. It seems to me to be reasonable to adopt the plaintiffs’ position since it provides some additional discount to account for the uncertainty of the timing of an event.

[242] The discount would not apply to the general damages or to the Family Law Act damages.

Costs

[243] The defendants do not seek costs.

Justice P. Lauwers

Released: March 14, 2013

[^1]: Family Law Act, R.S.O. 1990, c. F.3 [^2]: Occupiers Liability Act, R.S.O. 1990, c. O.2. [^3]: Myers v. Peel County Board of Education 1981 CanLII 27 (SCC), [1981] 2 S.C.R. 21. [^4]: See Rollins (Litigation Guardian of) v. English Language Separate District School Board No. 39, [2009] O.J. No.6193, appeal dismissed 2012 ONCA 104, [2012] O.J. No. 646, and authorities cited in it. [^5]: Education Act, R.S.O. 1990, c. E.2. [^6]: Kennedy v. Waterloo County Board of Education (1999), 1999 CanLII 3746 (ON CA), 45 O.R. (3d) 1 (C.A.) at para 77 [^7]: The law is set out in the decision of the Court of Appeal in Kerr v. Loblaws Inc., 2007 ONCA 371, [2007] O.J. No. 1921 at paras. 19, 24 and 28. The determination of liability is utterly fact specific. The standard in the statute, however, “requires neither perfection nor unrealistic nor impractical precautions against known risks.” [^8]: Rollins, para. 132. [^9]: Rollins, para 143. [^10]: Rollins, para. 159. [^11]: Rollins, para. 165. [^12]: Rollins, para. 168. [^13]: Rollins, para. 175. [^14]: Clements v Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at para. 38 [^15]: These expressions are explained in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. [^16]: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at paras. 20-25. [^17]: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at paras. 13-15. [^18]: Clements at para. 15. [^19]: Clements, at para. 46. [^20]: Rollins at para 93 citing Myers v Peel Board of Education. [^21]: Myers, p 32 [^22]: R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. [^23]: Alan W. Mewett and Peter J. Sankoff , Witnesses , loose-leaf (Scarborough: Carswell, 1991) at pp. 10-37 (Section 10.3 (c)) . [^24]: See R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 37. See also Fisher 1961 CanLII 38 (ON CA), [1961] O.W.N. 94, 34 C.R. 320, 1961 CarswellOnt 7 (C.A.) at para 44-49. [^25]: Walker v. Hydro One Networks Inc., 2012 ONSC 2565, at para. 52; Dulong v. Merrill Lynch Canada Inc. (2006), 2006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (S.C.) at para. 14. [^26]: Justice Coulter A. Osborne, Civil Justice Reform Project: Summary Findings & Recommendations, (November 2007), online: Ontario Ministry of the Attorney General <http://www.attorneygeneral.jus.gov.on.ca/ english/about/pubs/cjrp/CJRP-Report_EN.pdf> . at pp. 71, 75-76. [^27]: Ibid. at p. 83. This is the genesis of new rule 4.1.01, the amendments to rule 53.03, and Form 53. [^28]: Per Master Short in Girao v. Cunningham, 2010 ONSC 4607, [2010] O.J. No. 3642; Bakalenikov v. Semkiw, 2010 ONSC 4928, [2010] O.J. No. 3877; and Aherne v. Cheng, 2011 ONSC 2067, [2011] O.J. 1880, appeal dismissed 2011 ONSC 3846, [2011] O.J. No. 2797, per Perell J. [^29]: The prospect of a challenge is something that should be canvassed at a pre-trial conference. The disqualification of the witness in Alfano (Trustee of) v. Piersanti led to a mistrial motion that failed: [2009] O.J. No.1288, as did the appeal. [^30]: Alfano (Trustee of) v. Piersanti2012 ONCA 297, [2012] O.J. No. 2042, at para. 110. [^31]: Mewett and Sankoff at pp. 10-48 (Section 10.5 (c), citing R. v. Klassen, 2003 MBQB 253, 179 Man.R. (2d) 115. [^32]: These elements are consistent with the desiderata for student supervision set out by the expert in Rollins at para. 78. [^33]: See Walker at para. 57. [^34]: I paraphrase the words of Ducharme J. in Rollins, para. 122. [^35]: Myers v Peel Board of Education at p.36. [^36]: While school boards, principals and teachers have high standards of care they are not and cannot be insurers, per Ducharme J. in Rollins, para 122. [^37]: Andrews v. Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 at p. 262. [^38]: Ibid. at p. 260. [^39]: Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629 at p. 638. [^40]: Ibid. at pp. 241-242. [^41]: Ken Cooper-Stephenson, “Remoteness of Damage”, Personal Injury Damages in Canada, 2nd ed., (Toronto: Carswell, 1996) at p. 110. [^42]: Andrews v. Grand & Toy Alberta Ltd at p. 242. [^43]: Schrump et al. v. Koot et al. (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.); Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.). [^44]: 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.). [^45]: Ibid. at para. 40. [^46]: (1995) 1995 CanLII 1096 (ON CA), 83 O.A.C. 128, 126 D.L.R. (4th) 506 (C.A.). [^47]: Ibid. at para. 42. See, for example, Hornick v Kochinsky, 2005 CanLII 13784 (ON SC), [2005] O.J. No. 1629, 22 C.C.L.I. (4th) 29 at para. 428 (Sup. Ct.); Howes v. Rousta, 2002 ABQB 1052, 331 A.R. 68, at para. 106; Gray v. Macklin (2000), [2000] O.J. No. 4603, 4 C.C.L.T. (3d) 13 at para. 185 (Sup. Ct.). [^48]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114. [^49]: Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (ON SC), [2009] O.J. No. 5438 at paras. 335-345. [^50]: Ken Cooper-Stephenson ,Personal Injury Damages in Canada at pp. 809–908. [^51]: Ibid. at p. 810. [^52]: Ibid. at p. 819. [^53]: Ontario v. Cote 1974 CanLII 31 (SCC), [1976] 1 S.C.R. 595. [^54]: Andrews v. Grand & Toy Alberta Ltd at p. 265. [^55]: Longeuay v. Thomas (1982), 1982 CanLII 2122 (ON CA), 35 O.R. (2d) 660 (C.A.). [^56]: Moeliker v. A. Reyrolle & Co. Ltd [1977] 1 All E.R. 9. [^57]: Graham v. Rourke, at para. 41. And see Saulnier v. LeBlanc, 2005 NBCA 79, 288 N.B.R. (2d) 160, Resendes v. Boutros, [1989] O.J. No. 2368, 2 C.C.L.T. (2d) 275 (H.C.J.). [^58]: Athey v. Leonati at paras. 34-35. [^59]: Athey, at para. 34. [^60]: Athey, at para. 35.