COURT FILE NO.: CV-08-0036-00 DATE: 2016 08 02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TIFFANY PETERS John Legge, for the Plaintiff

- and -

JOHN CHASTY PRINCIPAL, PEEL DISTRICT SCHOOL BOARD, ROBIN BENMERGUI VICE PRINCIPAL, LOLA GAYLE VICE PRINCIPAL and LANA DELMAESTRO TRACK COACH Jennifer Guy and Brendan Hughes, for the Defendants

Defendant

HEARD: May 10, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 26, 30 and June 20, 2016

REASONS FOR JUDGMENT

Edwards J.

Introduction

[ 1 ] On April 19, 2005 Tiffany Peters was a seventeen-year-old high school student at Bramalea Secondary School (“BSS”). She alleges that she was injured during an after-school track and field practice, and that her coach, Lana Del Maestro, her principal, John Chasty, and Peel District School Board were negligent. She alleges that she is permanently disabled, in chronic pain and unable to pursue her dream to be a singer, dancer and actor. She seeks damages for the loss of occupational advantage, for housekeeping assistance and general damages for pain and suffering.

[ 2 ] The defendants deny that they were negligent. They also assert that any physical issues that Ms. Peters currently has are not causally related to the injury that she sustained on April 19, 2005.

[ 3 ] The action has previously been dismissed as against Robin Benmergui and Lola Gayle, vice-principals of BSS in 2005.

[ 4 ] For the following reasons I dismiss Ms. Peters’ claim.

Agreed Facts

[ 5 ] The parties submitted an Agreed Statement of Facts document (Exhibit 5); however, some paragraphs in the document were not agreed to and were struck out. I have retained the numbering as shown on the document. Some of the deleted paragraphs defined words that are later referred to in agreed paragraphs. I will treat those words as undefined. I have placed in italics those undefined words. The agreed paragraphs read as follows:

1. The Plaintiff Tiffany Peters (herein “Peters”) was born January 1988.

2. Peters was a grade 11 student of Bramalea Secondary School (herein “BSS”) for the 2004 – 2005 academic year.

3. 2004 – 2005 was the first and only year that Peters attended BSS.

4. For the academic year of 2004 – 2005, John Chasty was the principal of BSS and Lola Gayle and Robin Benmurgui were vice principals. John Colton was the head of the Physical Education department.

5. In the spring of 2005, Peters joined the BSS Track and Field Team (herein the “Team”).

6. On joining the Team, Peters was 17 years old.

7. Lana Del Maestro (herein “Del Maestro”) was the coach of the Team.

8. Peters had no involvement with Del Maestro as teacher or coach prior to joining the Team.

9. The Team did not train or practice in fall or winter 2004 – 2005.

10. In 2005, Team practices began in late March or early April.

11. Students on the Team selected the track and field disciplines in which they wish to participate.

12. Peters selected the 200 metre sprint and the long jump as the events in which she wanted to participate.

13. For the first few weeks of the Team Practice , general fitness activities had included jogging around the neighbourhood.

14. On April 19, 2005 the Team practice involved a 20 – 30 minute warm-up of jogging and stretching in which all Team members participated.

15. The Pit consisted of a long asphalt approach track as well as a large pit filled with sand into which participants are intended to jump.

16. The Pit was adjacent to the track, where the track athletes would practice.

17. There was a set of bleachers on the southeast side of the track.

April 19, 2005

19. The Team practice was held on Tuesday, April 19, 2005, at which Peters attended (herein the” Practice”).

20. The Practice commenced at approximately 3:30 PM.

21. Tuesday, April 19, 2005 was a day without any rain.

22. As of the time of the Practice, Peters had selected her disciplines, which were the 200 metre sprint and the long jump.

23. The Practice commenced with a Team warm-up that lasted approximately 30 minutes.

24. After the Incident , neither Peters nor any one on her behalf inspected the Pit for any safety or maintenance issues.

Post-Incident

27. Immediately after the Incident, Peters stopped practising at the long jump Pit .

28. At the time of the Incident, Del Maestro was at the track, with the Team members who were participating running events.

29. Peters approached Del Maestro advised her that she had hurt her knee.

30. Del Maestro visually inspected Peters’ knee.

31. Peters’ knee was not bleeding at the time.

32. Giang Nguyen (herein “Nguyen”), escorted Peters to Del Maestro’s office, on the second floor of BSS.

33. While in Del Maestro’s office, Peters attempted to call her mother.

34. Peters was not able to get a hold of her mother.

35. Peters then called her aunt, Dawn Peters-Bascombe (herein “Peters-Bascombe”), who arranged to pick her up.

36. Peters-Bascombe was and is a Registered Nurse.

37. Del Maestro was present while Peters called her mother and Peters-Bascombe.

38. Del Maestro instructed Peters and Nguyen to go to the front of the school to wait for their respective rides.

39. Peters and Nguyen waited at the front of the school, on a bench adjacent to the front door.

40. Nguyen was picked up by her parent before Peters was picked up.

41. Peters was then picked up by Peters-Bascombe.

42. Peters-Bascombe drove Peter's home.

43. Peters was at home for approximately 20 minutes before her mother arrived home.

44. A doctor examined Peter's knee at the Hospital.

45. An x-ray of Peter's knee was taken at the Hospital on April 20, 2005.

46. The x-ray showed no sign of fracture or dislocation.

47. The x-ray suggested some joint effusion requiring a clinical correlation.

48. While at the Hospital , Peter's knee was iced and wrapped in a tensor bandage.

49. Peters was given crutches at the Hospital .

50. Peters went to see her family doctor, Dr. Kitakufe, concerning her knee injury on July 21, 2005.

51. Dr. Kitakufe referred Peters to have an MRI performed.

52. Peters had an MRI performed on her left knee on September 16, 2005.

53. Peters had an operation on her left knee on January 5, 2006.

54. The surgery performed was a partial lateral meniscus meniscectomy.

55. The operation was performed by Dr. Martin Heller at Humber River Hospital.

Employment

63. At the time of the Incident , Peters: i. was in grade 11, full-time at school; ii. worked part-time after school variously at Limité and at Laura Petites; iii. worked 3-5 shifts per week of 3-4 hours in length; and iv. earned between $8-$8.50 per hour.

64. After the Incident , Peters did not look for any alternative employment.

65. After her surgery, Peters did not look for any alternative employment.

St. Joseph's High School

66. Peters had attended St. Joseph's High School (herein “SJHS”) in Windsor, Ontario for Grades 9 and 10 and: i. had been on the SJHS track and field Team in Grade 10; ii. had competed in the long jump there on the 2003 – 2014; and iii. had competed in the 100 and 200 metre race.

67. Peters’ first participation in competitive long jump was on the 2003 – 2004 JSHS track and field Team.

68. Peters qualified for the South Western Ontario Secondary Schools Association competition for long jump the year she was on the SJHS track and field Team.

Post High School

70. Following high school, Peters attended California State University (herein “CSU”) in San Marcos, California.

71. While at CSU, Peters majored in Visual and Performing Arts and minored in French.

72. Peters was not required to audition for acceptance into CSU.

73. Peters’ first year at CSU was in 2006.

74. Peters graduated from CSU in 2011.

75. Peters worked intermittently while at CSU.

76. Peters took part in a full-length theatrical production of “Big Love” while at CSU.

77. Peters’ participation in Big Love was a part of her course work at CSU.

78. Peters perform the role of “Eleanor” in six performances, including dress rehearsals.

Further Matters

80. It is agreed by the parties that Dr. Heller's clinical notes and records at tab 5, 6, 10 and 12 the Joint Document Brief, and the contents thereof, are admitted as true.

81. The parties have agreed to call more than three expert witnesses.

82. The plaintiff does not oppose the late filing of the May 5, 2016 report of Ivor Gottschalk.

Overview

[ 6 ] From the Agreed Statement of Facts and from the uncontroverted evidence, it is clear that on April 19, 2005, Ms. Peters was practicing after school with the track and field team at BSS when she sustained an injury to her left knee. On January 5, 2006 she had a partial resection of her lateral meniscus in her left knee.

[ 7 ] The defendants do not concede that Ms. Peters tore her left meniscus on April 19, 2005 and submit that the tear could have occurred at any time prior to the MRI of Ms. Peters’ left knee that occurred on September 16, 2005.

[ 8 ] However, based upon the evidence before me I am satisfied on a balance of probabilities that Ms. Peters tore her lateral meniscus in her left knee on April 19, 2005 during that track practice. I will refer that incident as the accident.

[ 9 ] The issues that remain in dispute:

1. Whether the defendants were negligent prior to, at the time of, or after the accident;

2. What is Ms. Peters’ current physical condition and prognosis; and

3. Is Ms. Peters’ current physical condition causally related to her accident on April 19, 2005.

Credibility

[ 10 ] Credibility can be determined by examining the internal and external consistency of a witness’ testimony. Demeanour is also a relevant factor.

[ 11 ] Counsel for Ms. Peters submits that where there is a conflict between Ms. Peters and Ms. Del Maestro I should prefer Ms. Peters primarily because to Ms. Peters the event was unique, traumatic and vitally important; whereas since Ms. Del Maestro has had a long career, having taught many students many things in many places, her memory is naturally unclear about specific events in 2005. He points to the fact that Ms. Del Maestro was confused about Jared Fridy being a student on the track team in 2005.

[ 12 ] I may have accepted that logic if it was not for the significant inconsistencies in Ms. Peters’ evidence.

[ 13 ] I have concluded that Ms. Peters’ evidence is not reliable. Her evidence was replete with inconsistencies, some insignificant; some very significant. I will refer to a number of these inconsistencies as I deal with various issues; however, here are three examples.

[ 14 ] In examination-in-chief Ms. Peters denied that anyone at BBS provided her with any training for the long jump. She also denied that Ms. Del Maestro had ever shown her how to do “run-throughs”. However, in cross examination she acknowledged that seven years ago during her discovery, she had agreed that Ms. Del Maestro had taught her how to long jump in a similar way to what Mr. Boots, who was her coach the previous year when she was at school in Windsor, had taught her:

Q. Okay, I just… I think before when you and I were talking about what Coach Delmaestro taught you, I thought you had said….

A. We had run in the long jump pit?

Q. No, I thought that you said that she had… you said to me that she had taught you etiquette at meets, how to find a mark, know which foot to jump off, get your positioning? Basically what Coach Boots told you?

A. Yea.

[ 15 ] When this testimony was drawn to her attention, Ms. Peters testified that she was confused during discovery about which coach she was referring to, and she meant to say that Mr. Boots taught her those things, not Ms. Del Maestro. She said that at trial she was correcting her discovery evidence and did not know that she had an obligation to correct errors in her discovery evidence. This is the first of several corrections at trial of her discovery evidence.

[ 16 ] The second example of inconsistencies in Ms. Peters’ evidence relates to Ms. Peters’ evidence about her grades in high school. Ms. Peters testified in examination-in-chief that she graduated from high school with an average of 89 percent. In cross-examination she acknowledged that she was relying upon a 10 year old memory, and that the average was between 88 and 89. However, upon further questioning she acknowledged that in Grade 9 her highest mark was 76, in Grade 10 her average was around 81; in Grade 11 her average was around 73, and in Grade 12 her average was around 78.

[ 17 ] As the third example, Ms. Peters testified that she missed at least a week of school following her accident, and yet the school attendance records show that she missed the first three periods the day after her accident, no absence on the 21 st , and the first period on April 22. As well, the records show no other absences in the two weeks following April 19, 2005.

Standard of Care

[ 18 ] The parties agree that the defendants owe a duty of care to Ms. Peters, and that the standard of care applicable to the defendants is the standard of a careful and prudent parent:

[I]t remains the appropriate standard for such cases. It 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, 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. Myers v. Peel County Board of Education, [1981] 2 S.C.R. at para 31

Analysis of Standard of Care

[ 19 ] In order to analyze whether the defendants breached the standard of care owed to Ms. Peters, I will review in detail the events leading up to April 19, 2005, as well as the events of that day.

Pre-April 19, 2005

[ 20 ] Several witnesses testified about the events leading up to April 29, 2005, focused upon several aspects of the track and field team at BBS.

[ 21 ] It is an agreed fact that the team began practice in late March or early April. Ms. Del Maestro testified that practices began after the March break. She said that they were indoors until the weather permitted outdoor practices, and that the primary goal of the early practices was to get the students in shape. She said that practices were after school. Since school ended at 3:02 p.m., practice usually started at 3:20 p.m. and ended at 4:30 p.m.

[ 22 ] Ms. Del Maestro said that at the initial practice she discussed how the track team would work; that they had four practices a week and did not practice Friday evenings.

Parental Permission Form

[ 23 ] Ms. Del Maestro stated that at the initial practice she would hand out a practice schedule and the Student Participation In Interscholastic Activities form (“Participation Form”). She said that unless the Participation Form was signed by the student and a parent or guardian, and handed in to her, the student could not participate on the team. The Participation Form is at Exhibit 3 tab 70. John Colton, who was head of the Physical Education Department in 2005, confirmed that this form was the one in use in 2005.

[ 24 ] In cross-examination Ms. Peters denied signing the Participation Form. However, she acknowledged that at discovery she had stated that she had signed the document. At trial she said that she was now correcting her discovery evidence. She said that, rather than the Participation Form, she signed a form that required information about her past training and her specific interests.

[ 25 ] Ms. Del Maestro stated that she does not now have Ms. Peters’ signed Participation Form because each year she destroyed the previous year’s forms and inserted the current ones into her binder. She said that each year she would download a calendar from Google, put in the practice schedule and insert that into her binder. She stopped coaching in 2007 when she was served with notice of this lawsuit. As 2007 was the last year that she coached, all of the documents that she produced are for that year.

[ 26 ] However, Ms. Del Maestro stated that she had a specific recollection of seeing Ms. Peters’ signed form because she flipped to it when Ms. Peters was in her office immediately after the injury. She also said that there never has been a form for students to fill out their past training and specific interests. She said that her practice was to simply ask the students what disciplines they wanted to participate in. It was an agreed fact that students were permitted to participate in any discipline that they self-selected.

[ 27 ] It is concerning that Ms. Peters would testify at discovery that she had signed the Participation Form, and then at trial reverse that position. At discovery, the Participation Form in blank was presented to Ms. Peters for review, and after that review she stated that she had completed that form and returned it to Ms. Del Maestro. It is very difficult to understand how Ms. Peters could have misunderstood these questions.

[ 28 ] This is an example of inconsistent evidence by Ms. Peters.

[ 29 ] I find that Ms. Peters handed in an executed Participation Form for the track season in 2005. I also find that nothing turns on this issue, other than it assists me in determining credibility of the witnesses.

Training

[ 30 ] Ms. Del Maestro stated that track and field is a progression sport. She explained that she meant that she would begin slowly and each practice would build upon the previous practices. She prepared and gave to the students, small cue cards that described the drills for that practice. She utilized these cards each year that she coached track and field.

[ 31 ] When the team practiced indoors, they would run the hallways and stairs. Once the weather improved the team practiced outdoors. About the third week she added strength exercises. Around the second or third week after warm ups, she would split the team up into groups based upon their disciplines, e.g. long distance runners, sprinters and jumpers. This would be the first time that jumpers would go to the long jump pit.

[ 32 ] Consistent with her approach that track and field was a progression sport, when jumpers first went to the long jump pit, she said that they were instructed on how to do “run-throughs”.

[ 33 ] Run-throughs consist of the student running down an asphalt approach track, putting her foot as close to, but not over the wooden marker and then running through the long jump pit. The wooden marker is the takeoff spot for a long jump. If a student’s foot went past the marker, then the jump was disqualified. The student would adjust where she started her approach so that her takeoff foot did not cross the wooden marker. This was known as finding your “mark”.

[ 34 ] Ms. Del Maestro testified that she never let her students at BBS jump during practice. She said that she would take her team to competition meets about an hour early so that they could practice their jumping. She said that the facilities at competition meets were much better than at BSS. There the runways were rubber and the long jump pits usually were longer.

[ 35 ] Aleisa Beckford-Stewart was a student at BBS from 2001 to 2006. She is an excellent athlete. She recalls that year very well as she was working on an athletic scholarship. She did not miss any practices and, in fact, passed up on her Prom Dance to work on her disciplines. She said that practices began after the March break and were indoors if the weather was too cold. She said that Ms. Del Maestro organized the practices and gave each student workout cue cards that described what was to be done during the practice. She recalls workout #1, #2, and #3 (Exhibit 3, Tab 51). They usually did Workout #1 for the first two or three weeks. The purpose of this workout was for general conditioning. She said that Workout #2 was usually used for 5 or 6 practices.

[ 36 ] She said that Workout #3 was usually given out two weeks before the first meet. The run-throughs were done to help the athlete get her footwork correct. Ms. Del Maestro would demonstrate the run-through; showing how to hit the board and then run-through the long jump pit. She testified that sometimes Ms. Del Maestro asked her to demonstrate.

[ 37 ] There were no workout sheets beyond Workout #3. At that point everyone worked on weaknesses from the previous track meets.

[ 38 ] Ms. Beckford-Stewart recalls receiving these cue cards in 2005, and every year from Ms. Del Maestro

[ 39 ] Ms. Peters testified that, prior to April 19, 2005 there were about 8 practices, but she only attended 4 because of her work schedule. However, at discovery she said that she attended between 7 to 10 practices. At trial she said that what she meant to say at discovery was that there were 7 to 10 practices, not that she attended 7 to 10 practices.

[ 40 ] This is another example where Ms. Peters at trial corrected evidence given by her during her discovery.

[ 41 ] Ms. Peters testified that she did not receive any safety training at BBS or the previous year at her school in Windsor. She said that she received no training for the long jump at BBS, but she did train in Windsor on run-throughs, the year before the accident.

[ 42 ] This evidence contrasted with her evidence at discovery to which I have already referred to in detail, when she testified that Ms. Del Maestro had taught her etiquette for meets, how to find a mark, how to know which foot to jump with and to get her positioning. At trial she stated that she was confused during her discovery, and meant to say that it was Coach Boots, her coach the year before, and not Ms. Del Maestro, who taught her those things, including what a run-through and a pop up were.

[ 43 ] There is a conflict in Ms. Peters’ evidence as to whether she received training on the long jump at BBS or the previous year in Windsor. Nevertheless, the significant point is that she did receive training on etiquette at meets; she knew what run-throughs were and their purpose in finding her mark. Further, it is an agreed fact that she participated competitively in the long jump at Windsor in 2003-2004, and that she qualified that year to participate in the long jump at the South Western Ontario Secondary Schools Association competition.

[ 44 ] I find that Ms. Peters had experience in doing the long jump and would understand the difference between a run-through, a pop up, and a regular jump. It is clear from her testimony and it is clear from the Agreed Statement of Facts. In Windsor in Grade 10 she participated on the track and field team and competed in the long jump, as well as the 100 and 200 metre races. She qualified to participate in the South Western Ontario Secondary Schools Association competition for long jump that same year. She was not a novice in this discipline.

Supervision

[ 45 ] Ms. Del Maestro and Mr. Colton testified about the OPHEA guidelines which apply to coaches of various sports. These guidelines describe various sports activities and rate the risk of injury in that event, and then prescribe the level of supervision appropriate for each event.

[ 46 ] For example, running and jumping are rated as a low risk; whereas throwing events have a higher risk. Higher risk events require constant “eyes on” supervision; whereas lower risk events require the supervision to be in the area but not directly “eyes on”.

[ 47 ] Running and jumping events require on site supervision and not constant visual supervision.

[ 48 ] Ms. Del Maestro testified that in 2005 there were no events that required constant visual supervision. Running and jumping were the only events that the students were involved in that year, and those events required on site supervision and not constant visual supervision.

[ 49 ] There is no dispute that Ms. Del Maestro was on the field when Ms. Peters injured herself. There is disagreement exactly where she was, but for the purpose of considering whether she complied with the OPHEA guidelines, I need not make that determination.

[ 50 ] I find that Ms. Del Maestro was on the field when Ms. Peters injured herself and that in doing so she complied with the OPHEA guidelines for supervision. That does not determine whether she has complied with the required standard of care, but it is a factor in my consideration.

April 19, 2005

[ 51 ] I will examine this day by analyzing:

1. Ms. Del Maestro’s instructions to Ms. Peters;

2. The Number of Long Jumpers that day and location of Ms. Del Maestro;

3. The long jump pit; and

4. Ms. Peters’ actions at the long jump pit.

Instructions

[ 52 ] Ms. Peters testified that when the team divided up to work on their respective disciplines, she was the only person that day who was doing the long jump. She also said that Ms. Del Maestro told her to go over to the long jump pit by herself and work on her long jumps.

[ 53 ] She denied that Ms. Del Maestro instructed her to not jump, but only do run-throughs.

[ 54 ] Ms. Del Maestro denied ever instructing Ms. Peters, or anyone else to do a long jump during practice, and she denied that Ms. Peters would have been at the long jump pit practicing by herself.

[ 55 ] Ms. Beckford-Stewart testified that Ms. Del Maestro never instructed anyone to do a jump during practice. The most that the students did was a pop up. That involved a little more effort on the last step. It was not a jump with a landing. Ms. Beckford-Stewart testified that in the three years that she was on Ms. Del Maestro’s team, she never heard or saw Ms. Del Maestro instruct anyone to actually jump during practice. Further, Ms. Beckford-Stewart said that she never saw anyone jump at practice.

[ 56 ] Ms. Beckford-Stewart said that in gym class they did jump and were instructed on jumping, but she would only do a pop up because of the length of her jump, she might jump through the long jump pit.

[ 57 ] John Colton testified that as part of his gym classes he taught the mechanics of the long jump. This included learning how to establish timing and footwork. He taught run-throughs, as well as actually jumping. He stated that the long jump pit at BBS was shorter than the ones used at competition meets.

[ 58 ] I find that Ms. Del Maestro’s policy was to not permit the athletes to jump during practices, but only at the better facilities of a competition meet. Ms. Beckford-Stewart corroborates her evidence. I am satisfied that Mr. Colton’s evidence does not contradict Ms. Del Maestro’s evidence. The fact that he taught the full jump in gym class does not in any way contract Ms. Del Maestro’s evidence that she did not allow the athletes on the track and field team to jump at BBS; that they must only jump at competition meets where the long jump pits were longer. Logically that makes sense as the athletes on the team presumably would jump further than students who were not training to excel in that sport.

[ 59 ] I also find that Ms. Del Maestro instructed Ms. Peters to only do run-throughs during practice and did not instruct her to do actual long jumps. I do not accept Ms. Peters’ evidence on this point. As I mentioned, I do not find her evidence reliable.

Number of Long Jumpers and Location of Ms. Del Maestro

[ 60 ] There is disagreement as to whether Ms. Peters was sent to the long jump pit by herself or whether Ms. Del Maestro accompanied her. Ms. Del Maestro testified that she never had an athlete practice by herself and she said that she accompanied the jumpers to the long jump pit to instruct them. Ms. Peters said that she was sent by herself.

[ 61 ] Ms. Beckford-Stewart testified that the team always used a buddy system for the long jump. One person would watch the mark, while the other did the run-through. She said that the long jump was a popular event. Usually there were two or three students, and more likely five students in the long jump group.

[ 62 ] Giang Nguyen testified on behalf of the plaintiff. She attended BBS in 2005 and was on the track team. Her recollection of the team is quite vague. She testified that practices were once a week, but eventually agreed that they could have been Monday to Thursday. She had no recollection of the first practice, or of any instructions given by the coach to the team at that time. She did not see what Ms. Peters was doing that day.

[ 63 ] Ms. Keisha Gray was a sprinter on the team in 2005. Her recollection of the team was also vague. She thought that practices were twice a week, but agreed that it was possible that there were four practices a week. She could not remember the first practice and did not recall how each practice started, but conceded that it was possible that it started with a warm up with the entire team.

[ 64 ] She did, however, have a clear recollection that Ms. Peters was the only jumper that day. I find that clear and specific recollection to be at odds with her recollection of the team that year that was otherwise very hazy and unreliable. I do not accept her evidence that Ms. Peters was the only long jumper that day.

[ 65 ] Dr. Getahun, a plaintiff expert, prepared a report dated June 11, 2014. In that report he noted that Ms. Peters told him that the coach was present while she was performing long jump. He said that, at the request of the plaintiff’s counsel, he deleted that reference in his rebuttal report. He did not do so because he reviewed his notes and found this statement to be an error.

[ 66 ] I accept Ms. Del Maestro’s evidence that she would never send one student to work alone on a discipline and I accept her evidence that Ms. Peters was not alone at the long jump pit that day and that Ms. Peters accompanied the jumpers to the long jump pit to instruct them.

[ 67 ] However, I am also satisfied that whether Ms. Peters was alone at the long jump pit or not is not a relevant factor in determining whether Ms. Del Maestro breached the relevant standard of care. There was no evidence that would suggest that it was a breach of the requisite standard of care for an athlete to practice at the long jump pit by herself, provided there was on the field supervision.

The Long Jump Pit

[ 68 ] There is agreement that, although there were other sand pits at BSS, there was only one long jump pit in active use in 2005.

[ 69 ] Ms. Peters has alleged the defendants failed to examine the sand in the long jump pit before Ms. Peters jumped, failed to rake the sand in the pit and failed to create a safe playground for Ms. Peters.

[ 70 ] Ms. Del Maestro testified that she always inspected the long jump pit before students jumped to ensure that there was no glass or other foreign bodies. She preferred not to take rakes out for safety reasons. She would ensure that the sand in the long jump pit was level and if it was, she would leave the rakes in the shed. She said that the long jump pit was used by the Physical Education department for Grades 9 and 10 and was raked by them daily. If they had used the long jump pit and raked it, she would not rake it if it was level. She said that because the students were only doing run-throughs it was not necessary to rake the long jump pit during practice.

[ 71 ] John Colton testified that one of the sports that he taught during gym class was track and field, and one of the disciplines was the long jump. He taught them the discipline, and that included learning how to care for the long jump pit. For each class he taught the students how to use the rake to properly level and smooth the sand in the long jump pit.

[ 72 ] Ms. Peters stated that sand in the pit was dark brown and flat. She said that there was no garbage or glass in the long jump pit. She could not recall whether it had been raked. She said that the sand was rock hard. However, in cross examination she said that she ran through it twice and it felt like sand, but on the third run she realized that the sand was hard. She noticed that the sand had no rake marks. She did not think that it was necessary to rake it.

[ 73 ] Ms. Peters denied that Ms. Del Maestro inspected the long jump pit before she began to practice on April 19, 2005.

[ 74 ] I have found Ms. Peters’ evidence to be unreliable and I reject her evidence on this issue.

[ 75 ] I find that Ms. Del Maestro’s habit was to inspect the long jump pit prior to allowing students to practice at the long jump pit, and I find that she examined the long jump pit on April 19, 2005 before Ms. Peters began her practice at the long jump pit.

[ 76 ] I find that since Ms. Del Maestro had instructed the athletes to only do run-throughs there was no need to rake the long jump pit after each run-through.

[ 77 ] Furthermore, Dr. Heller’s notes, which, on consent, were admitted for the truth of their contents, indicate that Ms. Peters advised him that she developed left knee pain as she took off and worsened on landing. Ms. Peters admitted on cross-examination that she told Dr. Heller that.

[ 78 ] I find that Ms. Peters injured herself on takeoff and the condition of the sand in the long jump pit did not cause or contribute to her injury.

What Ms. Peters Did at the Long Jump Pit

[ 79 ] Ms. Peters testified that when she went to the long jump pit she began her practicing with a run-through.

[ 80 ] On the first two runs she had no concerns about the condition of the long jump pit.

[ 81 ] On the second attempt she did a little bit of a jump to see if her approach was sufficiently long.

[ 82 ] She said that on the third run-through she did a higher jump. She said that she felt fine running; it was only when she landed that she felt hurt. She heard a crunch and knew she was hurt. This is in contrast to Dr. Heller’s note in which he indicates that Ms. Peters advised him that her pain came when she took off.

[ 83 ] At trial Ms. Peters said that she was fine until she landed, and that is when her knee hurt. However, Dr. Lipson, a defence expert, testified that Ms. Peters told him that she experienced an agonizing pain in her left knee when she stepped out of the long jump pit; and Dr. Lubbers, a defence expert, testified that she told him that she experienced pain in her left knee as she jumped. Ms. Peters denied making either of these statements.

[ 84 ] At trial Ms. Peters testified that she landed with both feet. However, at discovery she said that she landed on her left foot.

[ 85 ] There is no evidence that whether Ms. Peters landed with one or two feet impacted upon her injury. However, this is a further example of Ms. Peters providing inconsistent evidence.

[ 86 ] I am reluctant to accept Ms. Peters’ evidence regarding what she did at the long jump pit. I have found her evidence to be unreliable. However, if she did a jump or a pop up rather than a run-through, Ms. Peters contravened Ms. Del Maestro’s instructions to her that day.

Conclusion re Standard of Care at time of Accident

[ 87 ] I find that up to, and including the time of the accident on April 19, 2005 Ms. Del Maestro met the standard of care of a prudent parent for several reasons. I find that Ms. Del Maestro appropriately instructed Ms. Peters on the long jump, and that she instructed Ms. Peters to only perform run-throughs during practice. I find that the long jump pit was inspected by Ms. Del Maestro and that there was no need to rake it while the athletes did run-throughs only. I accept that the OPHEA guidelines help in understanding the assessed risk of different disciplines and the type of supervision prudently required for each discipline, and I find that Ms. Del Maestro’s supervision complied with those guidelines. I am satisfied that a prudent parent would not be expected to have constant visual supervision of a 17 year old athlete the entire time that she was practicing in the long jump area. I find that Ms. Peters was not practicing at the long jump by herself, and further that even if she was practicing by herself, that would not have breached the standard of care required of Ms. Del Maestro. I find that if Ms. Peters did a pop up or a jump, she contravened Ms. Del Maestro’s instructions to her. I also find that Ms. Peters injured herself on takeoff and the condition of the long jump pit did not cause or contribute to her injury.

Care after Incident

[ 88 ] There is conflicting evidence regarding what transpired immediately after Ms. Peters was injured. Having determined that Ms. Del Maestro did not breach the requisite standard of care at the time of the accident and that this included the required level of supervision, I need not discuss how Ms. Peters got Ms. Del Maestro’s attention or exactly where that occurred. I will review whether the actions of Ms. Del Maestro after Ms. Peters informed her of her injury met the requisite standard of care. I will also review Mr. Chasty’s actions as against the standard of care required of him.

Events from Ms. Peters speaking to Ms. Del Maestro until Pick up

[ 89 ] Ms. Peters testified that Ms. Del Maestro examined her knee and then told her to go to her office to wait while she finished practice. Ms. Peters said that Ms. Del Maestro told Giang Nguyen to escort her to Ms. Del Maestro’s office, which was on the second floor of the school.

[ 90 ] Ms. Peters said that when they arrived at the Ms. Del Maestro’s office there was another teacher there. Once Ms. Del Maestro arrived, she had Ms. Peters call for a ride home. Her mother was not accessible, so Ms. Peters contacted her aunt Ms. Dawn Peters-Bascombe, who agreed to come to pick her up. She said that her aunt spoke to Ms. Del Maestro. Next, Ms. Del Maestro advised her that when she got home she should rest the leg, put ice on it and elevate it.

[ 91 ] Ms. Nguyen testified when she saw Ms. Peters speaking with Ms. Del Maestro on the field, Ms. Peters was crying and holding her knee. She recalls Ms. Del Maestro asking her to assist Ms. Peters to the school office. They went very slowly to the main office of the school. Ms. Nguyen did not recall anyone being in the office. This office is adjacent to the main entrance doors to the school. She said that they did not go upstairs. She agreed that Ms. Peters called her aunt to come to pick her up. She said that Ms. Del Maestro did not return to the office.

[ 92 ] Ms. Del Maestro testified that Ms. Peters walked over to her. She examined the knee and it was not swollen or bleeding. She asked Ms. Peters whether she could walk and Ms. Peters said that she could. She did not recall that Ms. Peters was crying. She said that it was near the end of the practice so she ended the practice and she, Ms. Nguyen and Ms. Peters walked to the school together, and went to the second floor to the science office because there was a phone there.

[ 93 ] Ms. Del Maestro denied that they went to the main office on the ground floor. She said that the student entrance to the main office would have been locked by 4 p.m., and there is no access to a phone there. The science office was unlocked because two staff members were working there at the time. She said that Ms. Peters called her mother for a ride home, but was unable to contact her, so she called her aunt who agreed to pick her up. Ms. Del Maestro said that she did not speak with the aunt.

[ 94 ] Ms. Peters said that after making the phone call, she went to her locker for her purse and backpack. Then Ms. Nguyen helped her downstairs to wait for a ride. She said that Ms. Nguyen’s parents arrived first and Ms. Peters asked them for a ride, but their car was full. She said that Ms. Nguyen helped her outside and she leaned on a yellow cement pole to wait for her aunt. She wanted to wait outside because she thought that her aunt, who was not familiar with BBS, might not see her if she remained inside, but she acknowledged that there were windows in the front foyer.

[ 95 ] Ms. Peters testified that the accident happened between 4:30 to 5:30 p.m. She said that Ms. Nguyen’s parents arrived within 30 minutes of waiting and she was at the post until 6 p.m. and no one came to check on her while she waited. She said that it was getting dark and she was very upset.

[ 96 ] Ms. Nguyen testified that she escorted Ms. Peters to the main entrance to wait. Her parents came first and she offered Ms. Peters a ride home, but she declined since her aunt was coming to get her. She left Ms. Peters outside so that she was visible, so her aunt could see her.

[ 97 ] Ms. Del Maestro testified that after Ms. Peters made her call to her aunt, Ms. Peters needed to get things from the girls’ change room. Ms. Del Maestro said that she never goes into the change room, so Ms. Peters and Ms. Nguyen left to gather their things, and then went to wait for Ms. Peters’ aunt. Ms. Del Maestro said that she went back to the field to put the starting blocks away in the field house. She then changed, grabbed things that she needed to prepare for class. She then went to the front of the school to check on Ms. Peters. That would have occurred about 30 minutes after Ms. Peters spoke to her aunt. There are benches in the front foyer where students often sit to wait for rides, since there is a kiss and ride area in front of the school. As well, there are floor to ceiling windows in the front foyer. When she checked, she did not see them so she went to her car and went home.

[ 98 ] Ms. Peters testified that she was very upset and when her aunt arrived she calmed her down and helped get her into the car and her leg elevated. They stopped at a gas station where the aunt got some ice for her knee. Ms. Peters acknowledged that she did not mention stopping at a gas station for ice during her discovery.

[ 99 ] Ms. Peters said that when they got to her home, she used the restroom, and then her mother arrived home. She acknowledged that it is about a 10 to 15 minute drive from school to her home, and that a stop at a gas station would have lengthened the time to get home. An agreed fact is that Ms. Peters was home for approximately 20 minutes before her mother arrived home.

[ 100 ] Ms. Peters acknowledged that at discovery she testified it was daylight when she got home. At trial she said what she meant by that was that the sun had set; it was “kinda blue dark”, not night; but the street lights were on.

[ 101 ] At trial she said that it was dark when her aunt picked her up at school. According to her testimony this would have happened more than 15 minutes prior to her getting home.

[ 102 ] Ms. Dawn Peters-Bascombe testified that she was working at Trillium Hospital in Mississauga as a CCAS worker when Ms. Peters called her asking for a ride home as soon as possible because she was unable to contact her mother. She said that she spoke to a teacher, but she could not recall who it was. She was unable to say when she received that call. She said that she usually finished worked at 4:30 p.m.

[ 103 ] She said that she got to BBS between 6:30 to 7 p.m. She said that she was rushing to get to BBS, but she could not say what route she took to get to BBS. When she was presented a Google Map that was introduced as Exhibit 1 on consent, she denied that it was 20 kilometres between Trillium and BBS. She said that she did not drive on a highway and likely went down Hurontario. However, she had no explanation as to why it would take between 2 to 2 ½ hours to get from Trillium Hospital to BBS.

[ 104 ] Ms. Peters-Bascombe said that when she arrived at BBS, Ms. Peters was leaning on a yellow pole outside of the school. She was distraught and her knee was swollen. She got Ms. Peters into the back seat of her car and elevated her leg. She walked into the school to speak to a teacher, but was advised by a cleaning staff that no teachers were around.

[ 105 ] She said that she stopped at a gas station for ice so that she could ice the knee. She took Ms. Peters home. When her mother arrived, she watched them get into a taxi to go to the hospital. Then she left.

[ 106 ] At the request of Ms. Peters’ former lawyer, Ms. Peters-Bascombe prepared an email, dated February 17, 2015, that described events of that day. She did not include in the email statement the fact that they stopped at a gas station for ice. In that statement she indicated that she was unable to get in touch with Ms. Peters’ mother until the mother arrived home. In contrast during her testimony in-chief and in cross-examination, she testified that she contacted Ms. Peters’ mother, advised her about the injury, and told her to meet them at Ms. Peters’ home. Further, in the email statement Ms. Peters-Bascombe stated that she went with Ms. Peters and her mother to the Emergency Department of the hospital that evening. At trial she confirmed that this was not true, and in fact, she did not go with Ms. Peters to the hospital.

[ 107 ] John Chasty, the principal of BBS in 2005, testified that he was working in his office on April 19, 2005 between 4:30 and 5 p.m. His office has a back door that he refers to as an “escape hatch”. It opens onto the foyer at the front of the school. He leaves the escape hatch open, and if he hears noises or changes in the noise volume in the foyer, he will often go out into the foyer to investigate. He would then speak to whomever was there. He calls it active supervision.

[ 108 ] Mr. Chasty testified that before the accident he did not know Ms. Peters. He recalls that afternoon the school was quiet and then he heard something in the foyer. He went out of his escape hatch into the foyer and saw Ms. Peters sitting down on one of the benches located there. He went up to her and asked if things were okay. He asked if someone was coming to pick her up and she said yes. She did not appear to be in distress, so he went back into his office. He said that it was possible that there were other students in the hallway; he only recalls seeing Ms. Peters.

Findings Regarding These Events

[ 109 ] First, I would note that I have no medical evidence that any actions between the time of the incident and when Ms. Peters was picked up in any way aggravated Ms. Peters’ medical condition. This does not impact on the analysis as to whether the defendants met the appropriate standard of care; however, it does make that analysis somewhat academic.

[ 110 ] Second, there is a conflict in the evidence as to whether Ms. Del Maestro accompanied Ms. Nguyen and Ms. Peters into the school, or whether she followed on later. I am satisfied that nothing turns on this issue. I find that Ms. Del Maestro assessed Ms. Peters’ injury and determined that the best treatment was RICE. Ms. Peters acknowledges that at some point Ms. Del Maestro explained the meaning of that word: Rest, Ice, Compress, Elevate. Whether Ms. Del Maestro accompanied them into the office or not is irrelevant. However, I accept Ms. Del Maestro’s evidence that she did accompany them into the school, and then, only after arrangements had been made for a ride home for Ms. Peters, did Ms. Del Maestro go back out onto the field to put the starting blocks away.

[ 111 ] As I have already noted, Ms. Peters’ evidence is not reliable. As well, Ms. Nguyen’s recollection of the day is unreliable. She testified that she and Ms. Peters went to the main office at the front of the school on the ground level. Ms. Del Maestro and Ms. Peters both testified that the office that Ms. Peters went to was on the second floor. Ms. Del Maestro and Mr. Chasty both testified that the main office would have been closed at that time and not accessible. Also, it is an agreed fact that they went to Ms. Del Maestro’s second floor office. Ms. Nguyen’s evidence is not reliable; I do not accept Ms. Nguyen’s evidence.

[ 112 ] I would also note that Ms. Peters’ evidence and Ms. Nguyen’s evidence also contradict each other with respect to Ms. Nguyen offering to give Ms. Peters a ride home. Ms. Peters said that she asked for a ride; but the car was full; Ms. Nguyen stated that she offered Ms. Peters a ride home, but she declined as her aunt was coming for her. As I have found Ms. Peters’ and Ms. Nguyen’s evidence to be unreliable, I decline to make a finding on this point.

[ 113 ] The next issue to analyze is what transpired between the time of the telephone call by Ms. Peters to her aunt and her aunt’s arrival, and whether any of these events demonstrate that the defendants failed to meet the required standard of care.

[ 114 ] I accept Ms. Del Maestro’s evidence that she understood that Ms. Peters’ aunt was coming to take her home. I accept Mr. Chasty’s evidence that he spoke to Ms. Peters while she was sitting in the foyer waiting for her ride and that she did not appear to be in distress. She advised him that she was waiting for her aunt to pick her up. I accept Ms. Del Maestro’s evidence that she checked in the main foyer after putting away the starting blocks, changing and obtaining preparation materials, and that at that time, both Ms. Nguyen and Ms. Peters were not there. She estimated that was about 30 minutes after Ms. Peters spoke to her aunt.

[ 115 ] I reject Ms. Peters-Bascombe’s evidence that she picked up Ms. Peters between 6:30 to 7 p.m. There is no reasonable explanation why it took her between 2 and 2 ½ hours to get from Trillium Hospital in Mississauga to BBS in Brampton. As well, there are significant inconsistencies between her evidence at trial and the email statement that she prepared for Ms. Peters’ former lawyer.

[ 116 ] I do not accept Ms. Peters’ evidence that she waited by herself, leaning against a yellow pole in almost an hysterical mood, until dark. In addition to her other inconsistencies, she testified in her discovery that when she got home it was daylight. She testified that the ride home took about 10 to 15 minutes and that was lengthened by a stop at a gas station for ice.

[ 117 ] There are further inconsistencies in the evidence of Ms. Peters and Ms. Peters-Bascombe about these events. For example, in prior accounts of the day, both failed to mention that they stopped at a gas station for ice.

[ 118 ] Finally, I note that an agreed fact is that Peters and Nguyen waited at the front of the school, on a bench adjacent to the front door. That is consistent with the evidence of Mr. Chasty that he found Ms. Peters seated on a bench in the school front foyer waiting for her aunt.

[ 119 ] I find that Ms. Del Maestro met the standard of a prudent parent in her actions after she was made aware of Ms. Peters’ injury. I also find that Mr. Chasty’s action also were consistent with that of a prudent parent.

Conclusion re: Negligence

[ 120 ] I am satisfied that Ms. Del Maestro and Mr. Chasty did not breach the standard of care of a prudent parent in their dealings with Ms. Peters, in the events leading up to the accident, the time of the accident, and following the accident until Ms. Peters departed BBS with her aunt that day.

[ 121 ] On that basis Ms. Peters’ claim fails. However, for the sake of completeness I will analysis the issue of damages. In order to do so, I will review:

1. Ms. Peters’ medical treatment following the accident;

2. Ms. Peters’ schooling post-accident;

3. Ms. Peters’ University Experience;

4. Ms. Peters’ current physical status; and

5. Ms. Peters’ employment prospects.

DAMAGE ASSESSMENT

Medical Treatment Following Incident

[ 122 ] What transpired between the time Ms. Peters’ aunt picked her up at school and when Ms. Peters received medical treatment is only relevant as it relates to the credibility of Ms. Peters. The defendants did not assert that she had improper medical care that worsened her medical condition, and for which they would not be responsible.

[ 123 ] At trial, Ms. Peters testified that she and her mother went to Brampton Civic Hospital the day of the accident and arrived between 9:30 to 10 p.m. She saw a doctor who after inspecting her, gave her pain medication and told her to come back the next day for an x-ray. She obtained crutches on the main floor and left for home by taxi around 4 a.m. on April 20th. She returned to Brampton Civic for an x-ray on April 20 th .

[ 124 ] Ms. Peters denied attending a walk in clinic on April 19, 2005 and the hospital on April 20 th .

[ 125 ] However, Ms. Peters’ decoded OHIP Summary shows that on April 19, 2005 she was seen by Dr. Rolan Kaufman and that there is no corresponding hospital for that treatment. On April 20, 2005 the decoded OHIP Summary shows that she was seen by Dr. B. Kwan at Brampton Civic Hospital.

[ 126 ] Further, the Brampton Civic Hospital emergency notes indicate that they were prepared on April 20, 2005 at 15:06 or 3:06 p.m. and the Emergency Record is dated April 20, 2005 at 15:21 or 3:21 p.m. The receipt for the crutches and a tensor is dated April 20, 2005.

[ 127 ] Ms. Peters submits that these records are in error. I do not agree.

[ 128 ] I find that Ms. Peters attended a clinic on April 19, 2005 and then attended at Brampton Civic Hospital on April 20, 2005.

[ 129 ] This is another example of Ms. Peters’ evidence being inconsistent with reliable records, in this case, prepared by an independent third party.

Schooling Post Incident

[ 130 ] Ms. Peters testified that she did not go to school the next day and that she missed weeks of school. However, the school records show that on April 20, 2005 Ms. Peters missed first three periods of the day: periods 1 and 2 and 6. The records for April 21 show no absence marked and on the 22 nd Ms. Peters is shown as missing the first period of the day: period 6. On April 26 th she is marked absent for one half of a day. There are no other absences during the two weeks following April 19, 2005. Period 6 was choir and it was held before the normal start of school.

[ 131 ] Ms. Peters testified that those records were wrong. However, those records were admitted, on consent, for the truth of their contents.

[ 132 ] Further, both Mr. Chasty and Ms. Del Maestro testified that these records were produced manually. At the beginning of each period, each teacher would take attendance, and then a student would run that report to the office. The office staff would then tabulate attendance. For a student to be marked present for the day when she was not there, would require six teachers to make an error that day in taking attendance.

[ 133 ] I am satisfied that Ms. Peters’ evidence on this issue is not reliable. I find that she missed the first three classes on the day following the incident, but attended the balance of that day. This also conforms to the medical records of Brampton Civic Hospital, which show that she attended there at 3:06 p.m. on April 20, 2005. This is a further blow to the credibility and reliability of her evidence.

[ 134 ] Ms. Peters testified that she attended school until she no longer required crutches by staying in the Vice Principal Gayle’s office. She could not recall how long. I find that nothing turns on this issue.

[ 135 ] There was a significant amount of evidence regarding Ms. Peters’ treatment at school after the incident. She alleged that after her accident that Ms. Del Maestro was unkind to her on several occasions. She said that she did not allow her to go to a school meet and either took her off the bus, or stopped her from going on the bus. She said that Ms. Del Maestro was speaking unkindly about her to other students; she said that Ms. Del Maestro prevented her from watching a practice while she was waiting for a ride home from one of the athletes.

[ 136 ] Ms. Gray supported Ms. Peters’ evidence that she was turned away from going on the bus for the track meet. She also stated that she saw the coach speaking to another student about Ms. Peters’ mother making a complaint; however, she could not remember the exact words used.

[ 137 ] Ms. Del Maestro testified that she would not allow any student who was not participating to attend track meets. It usually was a full day event and the student would miss school that day. Further, she did not want to supervise students who were not participating in the meet. She agreed that she told Ms. Peters that she could not go to the track meet.

[ 138 ] I find that Ms. Del Maestro instructed Ms. Peters that she could not attend the track meet. I find that there is no evidence that Ms. Peters asked for permission to attend the meet Rather, she simply attended at the bus that morning. I find nothing improper in Ms. Del Maestro’s actions in prohibiting Ms. Peters from attending the meet. Further, I find that this is not relevant to the issue of whether Ms. Del Maestro was negligent on April 19, 2005.

[ 139 ] On the issue as to whether Ms. Del Maestro banned Ms. Peters from watching practice, again I find that this is irrelevant to the issue of negligence.

[ 140 ] With respect to the claim that Ms. Del Maestro was “bad mouthing” Ms. Peters by speaking to other students, I find that this too is irrelevant to the issue of negligence. In any event, I put little weight in Ms. Gray’s hearsay evidence. I do not accept Ms. Peters’ evidence as I have found her to be unreliable. I accept Ms. Del Maestro’s evidence that she did not do that.

University

[ 141 ] Ms. Peters testified that her injury prevented her from obtaining a track scholarship to an American university like her brother had done. However, during her discovery she testified that she never intended to get a track scholarship to university.

[ 142 ] During Ms. Peters’ examination-in-chief she implied that she received a scholarship to go to California State. In fact, in cross-examination Ms. Peters clarified that she did not attend the university on a scholarship. Instead, based upon her first year marks, she received an in-school scholarship for second year and, although she lost the scholarship because of low marks, she increased her marks and got the scholarship back for two other years.

[ 143 ] Ms. Peters testified that her injury caused her to fail her Theatre Arts course because it was a morning class; she had to wake up early; she had to walk on campus to places like the library and study hall and there were stairs everywhere. She said this caused her GPA to drop tremendously. However, that semester her GPA improved to 2.836 from 2.750 the previous term.

[ 144 ] She said that she worked hard and got the scholarship back. This scholarship covered about 20 percent of her tuition.

[ 145 ] Ms. Peters acknowledged that she had been advised to undertake physiotherapy, but she stated that she could not afford it. She testified that, while at California State University, she had the mandatory insurance for international students, but she was told that it did not cover physiotherapy. However, the plan (Tab 55 of Exhibit 3) states that the co-payment by an insured for physiotherapy from a PPO (a preapproved individual as defined by the plan) is $0 and for physiotherapy with a non-PPO the co-payment is 25 percent. Clearly Ms. Peters had insurance coverage for physiotherapy.

[ 146 ] Much was said about Ms. Peters’ grades at California State. Ms. Peters testified that she graduated after five years with a GPA of 3.7. However, since she did not pay the balance of her tuition she was not given her diploma, nor her transcript for the final year. She provided a transcript for all years except for the last year. Those grades ranged from 2.75 to 3.6 in the previous terms.

[ 147 ] Whether she graduated with a 3.7 GPA or not is not particularly relevant to the issues at hand. It does, however, reflect upon Ms. Peters’ credibility. However, given the other multitude of inconsistencies in her evidence, I need not make a determination on this issue.

Medical Condition

[ 148 ] The parties all agree that Ms. Peters had a partial tear of the lateral meniscus, and that on January 5, 2006 Dr. Heller performed a partial meniscectomy. Ms. Peters did not see her family doctor until July 2005, and did not obtain an MRI of the knee until September 2005. There is no evidence that the delay in seeing her family doctor had any impact upon the injury.

[ 149 ] At Ms. Peters’ discovery she testified that she saw her family doctor the day after the accident, and had the MRI a week or two after her appointment with her family doctor. When Ms. Peters saw Dr. Wong, a plaintiff expert, on July 7, 2014 she completed a questionnaire and noted that she saw her family doctor “April 2005”. Dr. Lipson, a defence expert, testified that Ms. Peters told him that she saw her family doctor within a day or two of the accident. Ms. Peters denied telling Dr. Lipson this.

[ 150 ] Although when Ms. Peters actually saw her family doctor and obtained the MRI is clear from third party records and, in fact, is not significant to liability issues, the confusion in Ms. Peters’ recollection of these events is a further example of the inconsistencies in, and the unreliability of, Ms. Peters’ evidence.

[ 151 ] Ms. Peters first saw Dr. Heller on August 23, 2005. Based upon Ms. Peters’ symptoms and the doctor’s examination he stated: “Miss Peters likely has patella-femoral symptoms possibly related to an episode of subluxation. I recommend physiotherapy and I have ordered a bone scan to clarify the diagnosis.”

[ 152 ] The MRI occurred on September 16 2005. The summary of the findings was:

1. Mild chondromalacia lateral facet of patella

2. All ligaments intact

3. Displaced tear lateral meniscus

4. Small joint effusion.

[ 153 ] As a result of the MRI findings Dr. Heller performed the partial meniscectomy.

[ 154 ] Ms. Peters testified that today lengthy sitting aggravates her knee pain. She exercises three to four times a week. She does about 30 minutes of cardio and then 15 minutes with light weights. She tried to do squats, but it hurt too much the next day so she stopped doing them.

[ 155 ] She said that she has a limitation because of her left knee and referred to an acting part that she wanted where she was required to throw herself to the ground. She cannot do that because of her knee.

[ 156 ] Ms. Peters also spoke about her physical condition when she was examined by the medical experts. I will refer in more detail to Ms. Peters’ comments about her physical state when I review the medical experts’ testimony.

Weight

[ 157 ] Ms. Peters testified that at the time of the accident she weighed about 120 to 125 pounds. She now weighs 200 pounds and said that she had increased to 260 pounds after the accident, but had lost 60 pounds by changing her diet.

[ 158 ] Her family doctor noted that she weighed 176 pounds three months after the accident. His records also indicate that she weighed 128 pounds when she was 12 years old. Ms. Peters testified that she lost weight between ages 12 and 17 because she developed lean muscle. In her examination-in-chief she said that she gained 15 pounds in the 9 months after the accident, but in cross-examination she said that she gained 50 pounds, rather than 15 pounds during that time.

[ 159 ] Ms. Peters denied telling Dr. Lubbers that she gained 10 to 15 pounds in the first few months after the accident, or that her weight increased to 230 pounds.

[ 160 ] Ms. Atonette Rudder testified on behalf of the plaintiff. She said that she had been a lifelong friend of Ms. Peters. She testified that they attended elementary school and Grade 12 together. She said that Ms. Peters had always been very physically fit. In public school she ranked Ms. Peters’ fitness at 10 out of 10. Ms. Rudder stated that Ms. Peters was physically fit when she started Grade 12 she, but was not dancing. Ms. Rudder thought that Ms. Peters’ physical fitness in Grade 12 (September 2005) was about the same as it was in public school.

[ 161 ] I am satisfied that Ms. Peters put on weight after the accident. Because of the many inconsistencies in her evidence I am not prepared to find that she was 120 to 125 pounds at the time of the accident. I am satisfied that her weight increased following the accident, and that a combination of inactivity and diet were the causes. Ms. Peters herself testified that she lost 60 pounds by changing her diet and by stopping drinking sugary sodas.

Medical Opinions

[ 162 ] Four physicians were qualified to give expert opinion with respect to Ms. Peters’ physical condition. I will review the testimony of each.

Dr. Wong

[ 163 ] Dr. Wong, on consent, was qualified as an expert physiatrist. He assessed Ms. Peters on July 7, 2014. In addition to examining Ms. Peters, he reviewed her medical file. He noted the surgery with Dr. Heller in 2006 and that Ms. Peters was referred to a physiotherapist and attended one session in 2009 and then did one month of sessions.

[ 164 ] Ms. Peters had a second MRI in August 2009. That showed an inflammation of the patella and the yellow fat pad (see exhibit 14). Ms. Peters told him that she still has pain, insomnia and is depressed. In his opinion she has chronic pain syndrome.

[ 165 ] His examination showed that her gait was normal, as was everything else except for her left knee. It was puffy; there was evident swelling. Her ligaments were looser than normal in both knees because her extension was to 10 degrees. He stated that this would predispose Ms. Peters to the torn meniscus of the knee and to injury to the patella. However, it would not increase the risk of damage to the fat pad. He felt that strengthening the muscle would help in preventing injury due to the loose ligaments.

[ 166 ] He also noted that she had swelling on the lateral collateral ligament of the left knee. As well, her tibial collateral ligament was not normal on the left knee, as there was swelling there. The fat pad on the outside of the knee was swollen and tender. She also had pain in her kneecap. She had a strength issue on the left knee, as that test was 4 of 5. Both calf muscles were the same size. Her fibular collateral ligament was swollen and tender

[ 167 ] Dr. Wong was of the opinion that the knee limited her employment opportunities because Ms. Peters told him that she had pain walking, climbing stairs, lifting heavy objects, kneeling and bending. She told him that this required that she obtain modifications in her jobs. As well, she told him that she could not do chores that required her to do those actions. She told him that she stopped doing sports because of pain in the knee.

[ 168 ] He opined that her knee will not improve; it will only deteriorate. He felt that she may need surgery to correct problems as she ages. Because of the injury she will require a knee replacement earlier than a person who did not have her knee issues.

[ 169 ] He recommended physiotherapy to strengthen muscles as this might reduce the swelling and help slow down the deterioration. As well, he recommended that she should lose weight, as being overweight can cause more damage to the knees. He stated that diet is the most important factor to losing weight. Exercise is also important and would help overcome the injury from a functional point of view.

Dr. Getahun

[ 170 ] Dr. Getahun, on consent, was qualified as an expert in orthopedic surgery, diagnosis and treatment and management of meniscus tear of the knee.

[ 171 ] On May 26, 2014 Dr. Getahun took a medical history from Ms. Peters, an occupational history, and then physically examined her. During the physical examination he observed her walking with a normal gait. Her examination was normal with the exception of the left knee. She had Grade 2 effusion, and was tender along the lateral joint line. The effusion is usually an indication of pathology, usually soft tissue. He reviewed clinical records up to the date of his examination.

[ 172 ] At the time Ms. Peters said that she experiences pain and swelling in her left knee. She has full range of movement.

[ 173 ] He reviewed Dr. Heller’s operating notes and it appeared that almost ½ of the meniscus was removed. Dr. Getahun could not determine from the notes how wide or narrow a strip of the meniscus was removed.

[ 174 ] The September 16, 2005 MRI ordered by Dr. Heller showed mild chondromalacia lateral facet of patella and a patellaformoral joint syndrome. It is not unusual for women to have a misalignment of the patella (knee cap) that causes this issue and that is unrelated to the meniscus tear. The MRI report stated that she had a displaced lateral meniscus tear. He believes that the patellofemoral syndrome is almost irrelevant to the meniscus tear. She could not have a meniscus tear without trauma.

[ 175 ] At the time of the examination Ms. Peters’ ability to sit was not limited.

[ 176 ] The MRI dated August 12, 2009 indicated a truncated lateral meniscus, which is consistent with the surgery that she underwent.

[ 177 ] Dr. Getahun stated that he believes that the fat pad inflammation is non-contributory. One can have inflammation of the fat pad from kneeling too much or trauma. He believes that she was injured long jumping; had appropriate care from Dr. Heller and her symptoms in her left knee are attributable to the injury.

[ 178 ] He said that the meniscus act as stabilizers and shock absorbers. The lateral meniscus is particularly important and less frequently torn. After taking almost half out, the knee would be much less stable. He expects that within 20 to 30 years Ms. Peters will require a new knee.

[ 179 ] Dr. Getahun does not accept the defendants’ expert Dr. Lipson’s evidence. He stated that the two articles that the expert relied upon deal with elderly individuals and apply more to degenerative conditions; not applicable to a 17 year old Ms. Peters.

[ 180 ] He felt that physiotherapy would reduce her symptoms, but not change the course of the degeneration of her knee.

[ 181 ] The x-ray at Tab 9 of April 23, 2009 showed a mild narrowing of the joint space, but the x-ray of November 4, 2009 showed no change to mild medial compartment osteoarthritis.

[ 182 ] Dr. Getahun agrees that weight can cause knee pain: the more weight, the more stress on the knee, the more pain. Decreasing weight will reduce pain. He felt that Ms. Peters could not exercise because of the pain, but he assumed that one could lose weight just be dieting. He felt that physiotherapy after surgery would help recover range of motion and strengthen knee, but it would not currently reduce knee pain.

Dr. Lipson

[ 183 ] Dr. Lipson, on consent, was qualified as an expert in physical medicine and rehabilitation. He examined Ms. Peters on December 29, 2014.

[ 184 ] From the medical records, Dr. Lipson was unable to state whether the meniscus tear was in the red zone or the white zone: the red zone being serviced by blood; the white zone not. He agreed that the lateral meniscus is smaller than the medial. He did not agree that lateral meniscectomies have a worse outcome than medial ones.

[ 185 ] Ms. Peters told him that she put on 20 pounds in the first year following her accident and that the majority of her weight gain was in the first year.

[ 186 ] She reported to him that her range of motion improved after the surgery, but the pain got worse. She did not pursue physiotherapy, whereas he opined that normally when pain increases, one does physiotherapy. From Dr. Heller’s notes, he concluded that Ms. Peters did not report recurrent pain until 2007, long after the surgery. His view is that the surgery was successful.

[ 187 ] Dr. Lipson said that she was vague about the reason that she did not have physiotherapy. There was eight months between her surgery and the time that she went to the United States for university. During that time, she could have had OHIP coverage for physiotherapy. She told him that she was busy so she did not go for physiotherapy. She told him that she saw a physiotherapist briefly in the US.

[ 188 ] Dr. Lipson said that she reported left knee pain to him. She said that she has swelling sometimes after activity. She reported sitting intolerance. She said that the right knee pain began in 2010. She said that her left knee pain was from 6 to 8 out of 10 in severity, but sometimes up to 9. Walking and prolonged sitting aggravate the pain. She told him that she could do all day to day activities, except those that required kneeling. She was limited in kneeling because of the pain. She could walk a maximum of 30 minutes and sit for a maximum of one hour. She said that she could not sit through a movie, but Dr. Lipson noted that she sat for the examination for one hour and 40 minutes without perceived difficulty. She said that her right knee pain was intermittent and did not specify a level of pain.

[ 189 ] He reported that she described her employment history and said that she was limited in pursuing her dream occupation because she could not do things like throw herself to the floor.

[ 190 ] Dr. Lipson testified that his examination of Ms. Peters revealed no abnormalities. She performed a squat without difficulty; her range of motion was full; she had no swelling or tenderness. He tested for knee cap issues. He pushed down on the cap and it caused discomfort to Ms. Peters. The right knee was normal. Ms. Peters had no hip pain when he saw her.

[ 191 ] After reviewing the November 21, 2013 MRI, Dr. Lipson concluded that Ms. Peters has mild degeneration in the lateral and medial compartments of the left knee, and that this is not caused from, or secondary to, the original meniscus tear. He stated that if the degeneration was connected to the tear and subsequent surgery, one would expect to see accelerated degeneration in the compartment where the surgery occurred, and yet Ms. Peters has degeneration in the medial, as well as the lateral compartment of the knee. He thinks that Dr. Heller came to the same conclusion. In Dr. Lipson’s opinion she has patellar chondromalacia/patellofemoral syndrome and patellar tendinopathy in the left knee and not post-traumatic osteoarthritis. He believes that it is in keeping with her age and body habitus. He explained that body habitus refers to Ms. Peters’ weight.

[ 192 ] Further, he does not believe that either of these conditions would limit her from kneeling. He believes that it is her body weight that is the limiting factor.

[ 193 ] Dr. Lipson said that these conditions can respond favorably to treatment with physiotherapy and medicine. It is rarely treated with surgery. As well, it has a mild presentation. With the one year gap after surgery to onset of symptoms, he does not believe that it is attributable to the incident. He believes that she is not limited in daily life or in occupation.

[ 194 ] Dr. Lipson was cross-examined on his notes with respect to inconsistent prior statements. He acknowledged that there was a typographical error in his report regarding her height and weight in 1995. He felt that the literature that he referred to was appropriate because Ms. Peters was experiencing degeneration in her knees because of her weight. This issue correlated to older individuals who experienced degeneration.

[ 195 ] Dr. Lipson does not agree with Dr. Wong’s opinion. He said that the imaging and his physical examination lead to a different opinion.

Dr. Sekyi-Otu

[ 196 ] On consent, Dr. Sekyi-Otu was qualified as an expert in orthopedic surgery. He assessed her in February 2016. He said that Ms. Peters told him that she was practicing long jump alone when she jumped and felt a crunch when she landed on two feet; she didn’t fall; she had increasing pain and could not walk independently. She said that she missed a few weeks of school and her grades suffered. She said that she was 125 pounds at the time of the accident and she was 190 pounds at the time of his examination.

[ 197 ] Dr. Sekyi-Otu stated that she told him that she was seen at the hospital that day and had an x-ray the next day. Since the accident her left knee has had pain anteriorly that is sharp and worse with activity, and is an 8 of 10. It was initially 10 of 10. Her right knee developed pain 3 to 4 years ago. There was no trauma to the right knee and the pain is worse with activity. The pain in the right knee is dull and 4 of 10.

[ 198 ] The doctor testified that Ms. Peters advised that she now has pain in both knees. Her low back pain started three years ago. There was no history of low back pain prior to the accident. The back pain is dull. When she stands for more than three hours, sits for over three hours or works out at the gym, the pain worsens. Lying on the floor helps with the pain.

[ 199 ] Dr. Sekyi-Otu’s examination showed no abnormality except for the knees. Both knees hyper-extend by about 20 degrees. There was no swelling or instability. She had poor technique in deep squatting, usually indicating deconditioning. There was no joint line tenderness, which usually indicates whether pain is from meniscus tear.

[ 200 ] He agreed that the MRI showed a displaced lateral meniscus tear, of about 20 percent. She had patella misalignment or mal-tracking of the patella which, in his opinion, predisposes her for patellar chondromalacia. The patellar mal-tracking creates abnormal pressure on the knee which can result in wear and tear that leads to arthritis.

[ 201 ] He felt that the second MRI did not indicate any further issue with the lateral meniscus.

[ 202 ] Dr. Sekyi-Otu said that Dr. Angilleta’s notes, dated July 7, 2009, refer to left knee pain and the fact that Ms. Peters weighed 221 pounds. Dr. Angilleta’s concern was with respect to arthritis in both knees. That opinion was supported by an x-ray, dated April 23, 2009. Also, an x-ray in August 2009 showed no change to the mild medial compartment arthritis. Dr. Sekyi-Otu noted that the arthritis was in both knees, not just the left knee where the meniscus tear had occurred.

[ 203 ] Dr. Sekyi-Otu said that “mild medial compartment joint space narrowing” means the space between the bones has narrowed, likely indicating that the cartilage is wearing out.

[ 204 ] He noted that an x-ray November 2009 shows stable mild medial compartment osteoarthritis.

[ 205 ] Dr. Sekyi-Otu testified that Dr. Dean’s physical examination in July 2013 was consistent with his own observations.

[ 206 ] As well, Dr. Sekyi-Otu noted that Dr. Heller ordered an MRI dated November 21, 2013. It shows mild degeneration within medial and lateral compartments; the cartilage is wearing out. The medial compartment is the opposite side to where the surgery occurred. Also, degeneration within the intra-substance of the posterior horn is degeneration on the opposite side of the knee from the surgery, and is evidence of early arthritics. There are three compartments within the knee and Ms. Peters has early arthritis in all three areas.

[ 207 ] In his opinion this degeneration is related to the fact that Ms. Peters is overweight. One pound of weight translates to 5 pounds of pressure on the patella (kneecap). He thought that mere inactivity would not account for her significant weight gain. He was of the view that, unless she had an underlying issue that he was not aware of, she must have been eating a lot.

[ 208 ] Dr. Sekyi-Otu agrees that the mechanisms of the injury are consistent with a lateral meniscus tear, but her current symptoms are primarily patella femoral in nature. She is predisposed to this because she has hyper extension of the knee; she has flat broad feet; and she is overweight. This cumulatively predisposes her for patella issues (knee cap issues).

[ 209 ] He stated that the pain in her right knee and back are reported three years after the sports injury and are not causally connected to the injury.

[ 210 ] He felt that her prognosis is poor, but that the symptoms are not related to her injury, but rather her body habitus (being overweight). He sees lots of females who sustain an isolated lateral meniscus tear and recover and return to high athletic achievement.

[ 211 ] He would not place any restrictions on her, or prescribe any treatment or investigations.

[ 212 ] In his opinion there is nothing preventing Ms. Peters from losing weight. He also thought she might need further surgery, not because of the injury, rather because of being overweight.

[ 213 ] His examination did not support a finding of abnormality of the lateral collateral left knee ligament or any inflammation.

[ 214 ] He felt that hopping on the knee following the accident might have been painful, but it would not have worsened the tear because Dr. Heller’s notes show that the tear was not repairable. He said that the tear could have become displaced at any time.

[ 215 ] He disagrees with Dr. Getahun that the meniscal tear caused the other injuries to the knee. He disagrees that inactivity alone resulted in the weight gain. He has never seen in his practice weight gains of 40 to 60 pounds in 3 to 5 months of inactivity.

[ 216 ] Dr. Sekyi-Otu said that as her gait has not changed, the right knee should not be impacted by the left knee issues. He disagreed that a lateral tear had a worse prognosis as compared to a medial tear. He agreed that after taking out part of meniscus she was more likely to get arthritis, but that should have occurred in that compartment of the left knee. Ms. Peters has arthritis equally in all three compartments of her left knee.

[ 217 ] He disagreed that Ms. Peters told him that she was doing exercises every day in California, or that he made an error in noting that she was back to work in one week, or that she told him that she tried army crawling and then switched to hopping on one foot.

Findings on Ms. Peters’ Physical Condition

[ 218 ] There are two aspects to Ms. Peters’ current physical state: her subjective complaints and objective observable facts.

[ 219 ] The imaging and the doctors’ observations are objective corroboration of the various doctors’ assessments. The most recent imaging of the left knee is an MRI dated November 21, 2013. That showed no evidence of a re-tear of the lateral meniscus. However, there were signs of mild degenerative changes involving the medial and lateral compartments, as well as mild chondromalacia.

[ 220 ] Dr. Heller recommended that the patellofemoral symptoms be managed by weight loss, physiotherapy, and possible patellar bracing. Dr. Heller’s clinical notes and records were admitted as, on consent, for the truth of their contents.

[ 221 ] Dr. Getahun agreed that Ms. Peters’ right knee had 10 degrees of hyperextension. Dr. Wong stated that both of her knees demonstrated 10 degrees of hyperextension. Both Dr. Lipson and Dr. Sekyi-Otu stated that both of her knees were hyper-extensible to approximately 20 degrees.

[ 222 ] I find that both of Ms. Peters’ knees have a degree of hyperextension and that this factor predisposes her to patellar chondromalacia or patellofemoral syndrome.

[ 223 ] I find that Ms. Peters has misalignment or mal-tracking of the patella, and that this factor predisposes her to patellar chondromalacia or patellofemoral syndrome.

[ 224 ] I find that Ms. Peters is overweight and this factor predisposes her to patellar chondromalacia or patellofemoral syndrome.

[ 225 ] I find that Ms. Peters has degeneration in the lateral and medial compartments in her left knee. I accept Dr. Sekyi-Otu’s evidence that this points to a cause of the degeneration, other than the meniscus tear. If the meniscal tear was the cause of the degeneration, one would expect that the degeneration in the lateral compartment would be accelerated, as compared to degeneration in medial compartment of the knee.

[ 226 ] I find that Ms. Peters’ gait is unchanged. She is not favouring her left knee in a manner to put more pressure on her right knee, and yet, she has developed pain in her right knee.

[ 227 ] I find that Ms. Peters has patellar chondromalacia or patellofemoral syndrome, and that it is not secondary, or causally, related to the lateral meniscus tear, and the subsequent partial meniscectomy of the lateral meniscus in the left knee.

[ 228 ] The other aspects of Ms. Peters’ physical condition are the subjective symptoms that she has reported. For example, the issue of the amount of pain that she is experiencing is not objectively quantifiable or verifiable. This self-reporting is a significant factor in the physicians’ assessments.

[ 229 ] Because of the many inconsistencies in Ms. Peters’ evidence, I find that her evidence on this issue is unreliable. I am not prepared to find as a fact that Ms. Peters is experiencing the pain that she has reported. In addition to the many inconsistencies in her other testimony, she reported to Dr. Lipson that she could not sit through a movie, and yet he observed that she sat through his interview of one hour and forty minutes without any perceived difficulty. She reports that her pain in her left knee is 8 out of 10 and 4 out of 10 in her right knee, and yet, she exhibited no signs of pain during Dr. Lipson’s interview. As well, she sat through her examination-in-chief and cross-examination without apparent discomfort.

[ 230 ] I do note that after surgery Ms. Peters did not report any pain in her left knee for approximately one year, and the pain in her right knee and back were reported three years after surgery. Even if one accepts this evidence, I accept Dr. Wong and Dr. Sekyi-Out’s opinion that such a delay in the onset of pain points to a cause other than the lateral meniscus tear and subsequent surgery.

[ 231 ] As I have found that Ms. Peters’ current physical condition is not causally related to her lateral meniscus tear and subsequent surgery, I will not review the evidence of Dr. Pillai or Dr. Lubbers, both of whom were qualified, on consent, to provide opinion evidence in the field of psychology. They disagree on Ms. Peters’ diagnosis from a psychological point of view. However, I find that any emotional turmoil that Ms. Peters may be experiencing is not related causally to the tear of her lateral meniscus or subsequent surgery.

Analysis of Ms. Peters’ Employment Situation

Her Occupational Aspirations

[ 232 ] Ms. Peters testified that it has always been her dream to be an actor, dancer and singer, and that her knee issue has prevented her from achieving her dream.

[ 233 ] Ms. Peters spoke of her training to accomplish her dream. Much of her testimony focused upon events that occurred while she was in elementary school. I believe that what is more relevant is the preparation or training that she undertook to accomplish her goal during high school and university.

[ 234 ] After elementary school Ms. Peters took one hip hop dance class for two years. She recalled one performance. She never joined a competitive dance group. She had no other dance training.

[ 235 ] After elementary school, she took singing lessons at an academy for two years and had a private instructor for four years while she was in Windsor. She did a recital every year in Windsor, but did not attend any competitions. She performed at the academy, at school and at one wedding. She was a member of the church choir. When she returned to Brampton for Grade 11 she stopped her voice lessons and did not resume them.

[ 236 ] During high school Ms. Peters took no acting lessons, but did take a drama course in Grade 9. At California State University she majored in the Performing Arts course, with French as a minor. While at university she obtained a major role in a play that was part of her course work.

[ 237 ] Ms. Peters testified that she stopped pursuing her dream because she spoke to a guest speaker from Los Angeles while she was a California State University who advised her that because of the limitation imposed by her knee, and because of her weight, she should look for another occupation.

[ 238 ] Ms. Peters testified about her experience with the play called Big Love. She got the role, but then was advised by the director that she had to throw herself to the floor during the role. Because of her knee issue, she could not do that. She said that she almost became the understudy because of her physical limitation.

[ 239 ] I find that, although Ms. Peters’ aspiration was to become an actor, dancer and singer, she undertook very little preparation to achieve that goal. The aspiration remained primarily a dream. For example, she did not enrol in competitive situations for dancing, singing and acting even before her injury in April 2005.

[ 240 ] I find that the tear of her lateral meniscus in April 2005 and subsequent surgery, had no material impact upon the likelihood of Ms. Peters attaining her dream of being an actor, dancer and singer. The lack of preparation by her meant that her dream remained only a dream. It was mere speculation.

[ 241 ] I find that there is no reason to calculate the differential between the earnings of an actor, dancer and singer to what occupations Ms. Peters can now likely attain.

Summary

[ 242 ] I find that the defendants did not breach their duty to Ms. Peters; their actions met the standard of care of a prudent parent.

[ 243 ] I find that Ms. Peters currently has patellar chondromalacia or patellofemoral syndrome, and that this is unrelated to the tear of the lateral meniscus of Ms. Peters’ left knee that she sustained on April 19, 2005 or the subsequent surgery to partially resect that meniscus. Ms. Peters was predisposed to patellar chondromalacia or patellofemoral syndrome. It is not caused by, or secondary to, her tear of her lateral meniscus in her left knee.

[ 244 ] I find that Ms. Peters’ aspiration of being an actor, dancer and singer is mere speculation.

[ 245 ] I dismiss Ms. Peters’ action.

[ 246 ] If the parties cannot agree upon costs, the defendants shall provide costs submissions within 14 days. The plaintiff shall provide her submissions within 10 days. Reply submissions by the defendants, if any, shall be made within 5 days. Cost submissions shall be limited to three pages.

Edwards J.

Released: August 2, 2016

COURT FILE NO.: CV-08-0036-00 DATE: 2016 08 02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TIFFANY PETERS Plaintiff

• and – JOHN CHASTY PRINCIPAL, PEEL DISTRICT SCHOOL BOARD, ROBIN BENMERGUI VICE PRINCIPAL, LOLA GAYLE VICE PRINCIPAL and LANA DELMAESTRO TRACK COACH Defendants REASONS FOR JUDGMENT EDWARDS J.

Released: August 2, 2016