COURT FILE NO.: CV-11-52160
DATE: May 8, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROKSANA HAJRIZI, ISMET HAJRIZI and CELINA URBANOWICZ
Plaintiffs
– and –
OTTAWA-CARLETON DISTRICT SCHOOL BOARD, MARK A. HARRIS and NOAH RAAHEMI
Defendants
William N. Fuhgeh, for the Plaintiffs
Craig O’Brien and Ludmilla Jarda, for the Defendants, OCDSB and Harris Noah Raahemi, self-represented
HEARD: April 9-13, 16-20, 23-27, April 30 and May1 and 3, 2018 at Ottawa
REASONS FOR DECISION
james j. (Orally)
Introduction
[1] We are here for my Reasons for Decision in the matter of the Hajrizi v. the Ottawa-Carleton District School Board, Mark Harris and Noah Raahemi. The way I’m going to approach this is I will introduce the participants in the action. I will outline the events of September, 2009 in accordance with the evidence of the plaintiffs. I will outline the same events from the perspective of Noah Raahemi. I will summarize the evidence of Mark Harris, Constable Serge Berube and then I will discuss and analyze the evidence and the applicable law.
[2] In this case the Hajrizi family has made a claim against the Ottawa-Carleton District School Board, a vice-principal, Mark Harris and a former student, Noah Raahemi, arising out of a sequence of events in 2009 and in particular, the period from September 18th to September 21st of that year at an Ottawa area secondary school, Glebe Collegiate Institute. Sometimes during the course of these reasons for decision, I will refer to the school simply as Glebe.
[3] With the consent of the parties the action was separated into two parts: firstly, a trial respecting liability, that’s the part we’re dealing with now; and secondly, if any liability was found against any defendants, a subsequent proceeding to deal with damages. These Reasons for Decision address the liability issues.
The Participants
[4] For the plaintiffs, the participants are Ismet Hajrizi. and Celina Urbanowicz and their daughter, Roksana Hajrizi, who at the time was a student at Glebe. Roksana is now about 24 years of age.
[5] Noah Raahemi was also a student at Glebe. He was in the same grade as Ms. Hajrizi.
[6] Mr. Raahemi and Ms. Hajrizi met in grade 9. They shared a drama class together in grade 10. Mr. Raahemi left Glebe in or about December 2009 to live in Iran for several months with his father.
[7] Mark Harris was a vice-principal at Glebe for both the 2008/09 and 2009/10 school years. He is currently the principal of Longfields/Davidson Heights School which has students from grade 7 to 12.
[8] Three other school officials testified at this trial. They were Peter Campbell, Rupi Bergamin and Patricia Kulka. Peter Campbell was one of two vice-principals at Glebe. He was there from 2004 to June, 2009. His last year at Glebe was when Ms. Hajrizi and Mr. Raahemi were in grade 9. At the end of the 2008-2009 school year, Mr. Campbell took a position at another school. He was not involved in the events that took place the following year.
[9] Rupi Bergamin was Peter Campbell’s successor at Glebe for the 2009-2010 school year. This was her first year at Glebe. She was one of two vice-principals, along with Mark Harris, when Ms. Hajrizi and Mr. Raahemi were in grade 10.
[10] Patricia Kulka was the principal at Glebe from 2006 to 2011. Prior to becoming principal, Ms. Kulka was a vice principal at Glebe for four years. Ms. Kulka is now retired and works occasionally filling in for other principals on an as-required basis.
[11] Serge Berube is a police officer with the Ottawa Police Service. On September 21, 2009, he was at Glebe to meet the management team at the school as this was his first day as a school resource officer. He is currently a detective with the criminal investigation division.
The Events of September, 2009
(i) The Hajrizi’s Version
[12] September 18th, 2009 was a Friday. On that day, Roksana Hajrizi was confronted by Mr. Raahemi in a school hallway about an incident from the previous year. He claimed Ms. Hajrizi owed him $200 which she denied. He said to her, “Bitch, did you forget about my $200?” This was just one example of a pattern of on-going bullying and intimidation directed at Ms. Hajrizi by Mr. Raahemi who, according to Ms. Hajrizi, was known to bully other students as well. When Ms. Hajrizi saw vice-principal Harris in the hall she reported what had just happened. She said to vice-principal Harris that “Noah is threatening me. He won’t leave me alone. He’s demanding money from me.” Harris told her to see him on Monday morning and he would deal with her complaint.
[13] The following Monday Mr. Raahemi got to vice-principal Harris’s office before Ms. Hajrizi. He told vice-principal Harris a much different story. In Mr. Raahemi’s version of events, Ms. Hajrizi had assaulted him. Again, according to Ms. Hajrizi, this was completely untrue but he cleverly got to the vice-principal first with his story to disguise the truth, which was that he was the one who was doing the bullying.
[14] When vice-principal Harris heard Mr. Raahemi’s story about what happened, he called Ms. Hajrizi from class to come to the office. Vice-principal Harris spoke to the two of them. He told them to leave each other alone and sent them back to class. By this time the classes had changed and both students were in a drama class together.
[15] As they walked from the office to their class, Mr. Raahemi attacked Ms. Hajrizi. He grabbed her and pushed her backwards really hard. He called her a snitch and said he was going to get her. She fell to the floor and Mr. Raahemi kicked her in the leg while she was on the ground. As classes had already started, there was no one around to witness the assault. Ms. Hajrizi was frightened but continued on to class. She didn’t tell anyone.
[16] In this version of events, it was the aggressor, Mr. Raahemi, who went back to the vice-principal’s office and falsely accused Ms. Hajrizi of threatening him, exactly the opposite of what had actually happened.
[17] Upon hearing Mr. Raahemi’s allegations, vice-principal Harris went to Ms. Hajrizi’s class and brought her to the office. “What’s going on?” she asked vice-principal Harris. “I’ll tell you when we get to the office,” he responded.
[18] When they got to the office, vice-principal Harris said he was calling the police and that he wasn’t going to deal with her anymore. She asked to call her parents but vice-principal Harris refused. She asked him to call her parents instead and again he refused. He put her in a vacant office and locked the door from the outside. She tried open the door but it wouldn’t open. At one point she knocked on the door and asked to go to the washroom but vice-principal Harris said no. After about 15 to 20 minutes (she said it felt like a million years), vice-principal Harris unlocked the door and took her to another room where the police were waiting. She was arrested for uttering a threat, handcuffed and taken to the police station for processing. She was released later that day.
[19] Her father, Ismet Hajrizi, said that neither the school officials nor the police called the Hajrizi residence that day to advise that Ms. Hajrizi had been arrested. The next day Mr. Hajrizi called the school and left messages for vice-principal Harris and Ms. Kulka to call him. Vice-principal Harris called back in the afternoon. They spoke for about a minute then vice-principal Harris hung up on him. Vice-principal Harris called again the next day and they discussed the entire situation for over half an hour.
[20] Mr. Hajrizi said that Ms. Hajrizi was suspended from school for 20 days. The family appealed the suspension. They met with an official from the school board, Walter Piovesan, on or about October 5th. The parents say they advised Mr. Piovesan that Ms. Hajrizi had some medical issues and showed him a list of her prescriptions. Mr. Piovesan queried whether Ms. Hajrizi was well enough to return to school. The parents say that the medical information they passed along to Mr. Piovesan at the meeting was sufficient to put the school on notice that Ms. Hajrizi was suffering from mental health issues.
[21] Ms. Urbanowicz said that at the meeting Mr. Piovesan said that he was going to put some restrictions on vice-principal Harris and order vice-principal Harris not to touch her daughter. According to Ms. Urbanowicz, Ms. Hajrizi was expelled from Glebe.
(ii) Noah Raahemi’s Version
[22] I will now outline Noah Raahemi’s version of the same events. Mr. Raahemi testified that on September 18th Ms. Hajrizi confronted him about a broken watch and said that he owed her $40 for it. This related to an incident from March of the previous year. He said that he didn’t break her watch, that it had been broken when she pushed him. Ms. Hajrizi was not deterred. She said, “You owe me” and “I’m watching you”.
[23] The confrontation scared him. He thought about it over the weekend. He didn’t say anything about it to his mother but by Monday morning he had decided to report the incident to vice-principal Harris. He went to the office and met with the vice-principal. He told him the entire story, including the events from the previous year. For the first time, he included the fact that there had been a marijuana aspect to the dispute from the previous year.
[24] A brief digression is warranted here. In March 2009, according to Mr. Raahemi, he asked Ms. Hajrizi if she knew anyone who might be interested in acquiring a gram of marijuana from him. Ms. Hajrizi had suggested someone who ended up taking the marijuana from Mr. Raahemi without paying for it. The next day Ms. Hajrizi confronted him about involving her in the transaction. She was angry at him. She flipped his hat off his head and shoved him several times. “Why are you telling people I helped you sell marijuana?” and “Why are you talking shit about me?” she asked. He did not retaliate. He reported the situation to school officials. Ms. Hajrizi was suspended for a few days for assaulting him.
[25] Ms. Hajrizi’s version of the March 2009 incident was that Mr. Raahemi took out his anger on Ms. Hajrizi for the confiscation of his marijuana by one of the other students. He pushed her against the wall, swore at her and said she owed him $200 for the lost drugs. In the pushing and shoving, he broke her watch. While she wasn’t the aggressor, she was the one who was suspended. The amount and value of the marijuana in question differed from about $10 according to Mr. Raahemi to $200 according to Ms. Hajrizi. Later, when her parents appealed the suspension, vice-principal Harris was embarrassed when the fact that there was a marijuana aspect to the incident was revealed to vice-principal Harris’s superiors who said vice-principal Harris had not been candid with them in making full disclosure of the drug aspect of the situation. According to the plaintiffs, this embarrassment was the source of the animus of vice-principal Harris against Ms. Hajrizi; this was the source of his malicious intent and why he later contrived a story with Mr. Raahemi to get her in trouble with the police.
[26] Returning to the morning of September 21, when Mr. Raahemi went to see vice-principal Harris, he told him the entire story from start to finish, including all the details from the previous year.
[27] Vice-principal Harris arranged for Ms. Hajrizi to meet them in his office. He tried to mediate the situation. He told them to stay away from each other and not say things about each other to other students. Mr. Raahemi was prepared to resolve the situation of this basis. They were then told to return to class, being the drama class they had together.
[28] According to Mr. Raahemi, while en route back to class, Ms. Hajrizi was not prepared to let things go. She threatened hum, saying, “I’m going to break you”, “You’re dead”, and “You’re going to get stabbed”. This frightened Mr. Raahemi. She was bigger than he was and he felt intimidated by her. He had seen how she conducted herself with other students. She continued to make threats after they got back to class.
[29] Mr. Raahemi went back to vice-principal Harris’s office and told him what Ms. Hajrizi had just said to him. He didn’t want to leave the administration area of the school. He asked to call his mother. She came to the school. The police were called. He prepared a written statement on a computer in the office area. No one helped him write the statement.
(iii) Evidence of Mark Harris
[30] Vice-principal Harris testified that he had no recollection of Ms. Hajrizi speaking to him on September 18th 2009 about the behaviour of Noah Raahemi. For him, the events of September of that year started in the morning of September 21, 2009, when Mr. Raahemi came to his office to complain about what Ms. Hajrizi had said to him the previous Friday. Vice-principal Harris asked Mr. Raahemi to write out his complaints and called Ms. Hajrizi to the office to get her side of the story. Both students made accusations against each other. Much of what the students had to say related to incidents from the year before. Vice-principal Harris said he thought the best approach would be to mediate their differences. He said that they had to work at getting along and that they should avoid each other and not engage in verbal exchanges. He said his goal was to set parameters on how they were to interact with each other while at school.
[31] He said that Mr. Raahemi seemed to accept what he had said but with Ms. Hajrizi, it was different. She said, “We’ll see.” This ambiguous response prompted the vice-principal to outline the consequences if the threats continued. After this, Ms. Hajrizi agreed to accept his suggestions on how to get along. She also expressed some frustration with the situation and stated a desire to transfer to another school.
[32] Later that morning Mr. Raahemi came back to his office and reported that Ms. Hajrizi had threatened him again immediately after leaving his office. He seemed anxious and upset. Vice-principal Harris suggested that he should speak with his mother to inform her what was going on. Harris left him to call his mother in private.
[33] Harris spoke with some students who had been in the drama class to see if they had information on what had gone on. Some said they just heard them talking; others said they heard Ms. Hajrizi threaten Mr. Raahemi.
[34] At this point Ms. Hajrizi was in a math class and vice-principal Harris went to her classroom and escorted her to the administration area. He put her in an extra office near his. He was still looking into the circumstances of what had gone on when the police arrived at the school. When it became apparent that the police were considering a threatening charge against Ms. Hajrizi, he called her home but was unable to speak with a parent. He told Ms. Hajrizi that he couldn’t contact her parents. He was concerned that she may say something incriminating to the police and recommended that she not say anything to the police without speaking with a lawyer first. Ms. Hajrizi was arrested, handcuffed and escorted from the school. It was about lunchtime. He tried to call her parents again without success.
[35] Vice-principal Harris said he was sure he did not call the police that morning nor did he have a discussion with Mr. Raahemi’s mother about whether the police should be called.
[36] The next day vice-principal Harris spoke with Ms. Hajrizi’s father in the evening. The call lasted about 35 minutes. At times the conversation was heated. Mr. Hajrizi seemed to want to talk about what had happened the previous March when Ms. Hajrizi was in grade 9; vice-principal Harris wanted to talk about the incident that had just happened.
[37] In cross-examination, vice-principal Harris was asked about any notes he may have taken during this meeting- his meeting with the students or that may relate to his investigation. He said that he disposed of notes he made as a vice-principal when he was transferred to a new school in June 2010. Any notes he may have had specifically about this matter were disposed of when the criminal charge against Ms. Hajrizi was withdrawn.
(iv) Evidence of Serge Berube
[38] Serge Berube had just been assigned as the school resource officer for the Central West area which included Glebe and it was his first day at the school. School resource officers are police officers who fill a community liaison role and are the first line of contact between their assigned schools and the police service. Also present with Cst. Berube at the school that morning was Cst. Colucci, the outgoing school resource officer who Cst. Berube was replacing.
[39] They were meeting with the principal, Patricia Kulka, and one of the vice-principals, Rupi Bergamin, when one, maybe two, patrol officers arrived at the general administration area of the school. The patrol officers said that they were responding to a call that a student was being threatened. Cst. Berube was surprised to see them. He didn’t know they were coming because his radio had been turned down for the meeting with the school officials.
[40] Cst. Berube took charge of the investigation as the school resource officer. He spoke with Harris about the vice-principal’s discussions with the two students, then he spoke with Ms. Hajrizi and Mr. Raahemi. Mr. Raahemi seemed fearful and upset. Cst. Berube said that he thought Mr. Raahemi was being candid when he included the fact that marijuana had been involved in the incident from the previous year. He found Mr. Raahemi to be credible.
[41] Cst. Berube said Mr. Raahemi indicated that he wished to have Ms. Hajrizi charged. A charge would not have been laid if the victim had said he did not want to pursue the matter. Vice-principal Harris did not request that Ms. Hajrizi be charged with an offence. Cst. Berube did not see any evidence of collusion between vice-principal Harris and Mr. Raahemi.
[42] Cst. Berube said he believed he had reasonable and probable grounds to charge Ms. Hajrizi with uttering a threat based on what he was told by vice-principal Harris and Mr. Raahemi and he proceeded to do so.
[43] He did not want to press Ms. Hajrizi for a statement before she was cautioned. She exercised her right to counsel by calling two law offices but it is not clear whether she actually spoke with legal counsel at that time.
[44] Cst. Berube said he was aware he was dealing with a youth, not an adult and he considered whether a warning would be more appropriate than laying a charge. The factors he took into account in making this assessment were listed in his general occurrence report and included the following considerations:
a. Involvement in drug activity (this information came from Mr. Raahemi’s description of the events from grade 9)
b. She had been charged with a violent offence in the past (this was police information)
c. She had two previous warnings for theft and assault and one previous charge for assault (police information)
d. She had been mentioned twice as a subject for a dispute and trespassing (the source of this information is unclear)
e. Her parents excused her behaviour and denied her involvement in any kind of negative activity (police information)
[45] Cst. Berube said he called Ms. Hajrizi’s home twice on September 21. The first time was at around 12:30 pm. He was unable to speak with either of her parents. He called again later at around 6:30 pm and spoke with Mr. Hajrizi who was very protective of his daughter and said that it was the boy who had threatened her, not the other way around. Cst. Berube described Mr. Hajrizi as uncooperative and unwilling to hear what the police had to say. This can be contrasted with Mr. Hajrizi’s evidence that no one from the school or the police called the Hajrizi residence on September 21.
[46] Cst. Berube’s evidence was helpful in clearing up a controversial point in the trial, namely, whether Ms. Hajrizi had been expelled from Glebe as a result of the incident on September 21 or later that fall, actually. Contrary to the plaintiffs’ evidence, the witnesses from the school denied that this incident had resulted in an expulsion. Cst. Berube said he was the investigating police officer in an unrelated incident at the school involving Ms. Hajrizi and allegations by another student in November 2009 which resulted in a charge of robbery against her. He requested the inclusion of a term in her release conditions that she had to stay away from the school. It appears that while she wasn’t expelled, she was prohibited by her release conditions from returning to the school.
Discussion and Analysis
[47] The determination of the issues in this case requires that I make factual findings based on conflicting testimony. I have to determine what allegations I will accept and what allegations I am not prepared to accept. Fact-finding in the face of contradictory evidence involves assessing credibility and reliability. Generally speaking, the assessment of credibility involves observing witnesses as they give their evidence, considering what is probable or improbable in relation to known facts, determining the presence or absence of inconsistencies and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. I may accept some, none or all of a witness’s testimony. The standard of proof is on a balance of probabilities.
[48] The plaintiffs contend that they are the only witnesses who were telling the truth. According to them, everyone else was not being truthful. This would include the testimony given by an independent police officer, Cst. Berube, who Mr. Hajrizi said made false entries in his duty book.
[49] One branch of the plaintiffs’ case, that vice-principal Harris harboured a grudge against Ms. Hajrizi and was motivated by malicious intent to cause her harm, depends on a web of improbabilities that has little evidentiary support and is contradicted at many points by multiple other witnesses.
[50] It would unduly repetitive to unravel every aspect of the plaintiffs’ convoluted version of events, but deconstructing the allegations respecting the origin of the grudge is instructive because it is central to the plaintiffs’ case. Without a reason for vice-principal Harris to have a grudge against Ms. Hajrizi, the entire idea that he acted maliciously in dealing with the September 2009 incident has no basis.
[51] This aspect of the plaintiffs’ case goes back to November, 2008 when Ms. Hajrizi was in grade 9. A group of students from Glebe were seen at Nepean High School when a fire alarm was pulled. Vice-principal Harris got a call from the administration at Nepean High School that resulted in an investigation at Glebe that focused on four Glebe students, one of whom was Ms. Hajrizi. No one would admit to being the one who pulled the fire alarm so all four were suspended. Vice-principal Harris was the school official most closely connected with this incident.
[52] Glebe had two vice-principals that year, Peter Campbell and Mark Harris. For administrative and disciplinary purposes, the student population was divided into two groups alphabetically. As will be seen, it is important to appreciate that Ms. Hajrizi was in Peter Campbell’s group. Vice-principal Harris said that he dealt with the fire alarm incident because he was the one who got the call from Nepean High School. Later though, following the March 2009 incident when Ms. Hajrizi was suspended for an altercation with Mr. Raahemi, it was Peter Campbell who was primarily responsible. Mr. Campbell had no recollection of dealing with the incident when he testified. He said that there were four hundred grade 9 students who arrived at Glebe that year and he has no recollection of either Ms. Hajrizi or Mr. Raahemi at all. The point is that it would have been Mr. Campbell who dealt with the issue, not Mark Harris. This was confirmed by the other school witnesses. Also, Mr. Raahemi said that while he was not sure, it was his recollection that he spoke with Peter Campbell when he made his complaint against Ms. Hajrizi.
[53] The Hajrizis appealed their daughter’s suspension. A superintendent of education, Kathy Nevins, now deceased, was at the appeal hearing. Likely Ms. Kulka was there too but she has little recollection of the appeal proceedings. Vice-principal Harris was also at the hearing. He said he had been invited to attend because he had some experience with the Hajrizis, having been the person primarily responsible for Ms. Hajrizi’s suspension the previous November. According to the plaintiffs, when the Hajrizis said that Mr. Raahemi had been involved with marijuana and that marijuana had a role in the dispute between Ms. Hajrizi and Mr. Raahemi, Ms. Nevins said she was surprised that no one had told her about the marijuana and this made a big difference in how she viewed the situation. This fact, according to the plaintiffs, was a source of considerable embarrassment for vice-principal Harris and from that point on, he was looking for an opportunity to make trouble for Ms. Hajrizi.
[54] Vice-principal Harris’s evidence is that he was not directly involved in Ms. Hajrizi’s suspension in March, 2009. Peter Campbell was the vice-principal who was responsible for the matter. Vice-principal Harris said that contrary to the suggestion of the plaintiffs, he was not humiliated or embarrassed at the meeting. He said he had no reason to be upset because it was not his file. This was confirmed by the principal, Ms. Kulka, who said that Peter Campbell was the vice-principal who handled Ms. Hajrizi’s suspension.
[55] Another point is that if vice-principal Harris had a grudge against Ms. Hajrizi, why did he initially attempt to mediate the dispute between the students when it flared up again in grade10? When Mr. Raahemi arrived at his office to complain about Ms. Hajrizi, if vice-principal Harris was looking for an opportunity to make trouble for Ms. Hajrizi, he could have taken disciplinary action immediately.
[56] My conclusion is that the suggestion that Mark Harris had a grudge or vendetta against Roksana Hajrizi that prompted him to act maliciously towards her is a complete fabrication. I reject the contention that vice-principal Harris harboured malicious intent towards Ms. Hajrizi. I find that when he met with both students that Monday morning in September, he was acting in good faith in an effort to help the students find a way to get along without further conflict.
[57] I would also like to address the issue of who called the police to the school on September 21st. The plaintiffs have consistently maintained that the police were called by someone from the school, likely vice-principal Harris, and this supports their contention regarding malicious intent. They point to the pleadings where the defendants plead that a school representative called the police at the insistence of Noah Raahemi’s mother. Vice-principal Harris testified that he did not call the police. Cst. Berube said his information was that the mother had called the police but that sometimes calls come from multiple sources. He referred to police call sheet that was marked as Ex. 17 which indicated the call was received from Zahra Nafar who referred to her son as the victim of harassment and threats. Plaintiff’s counsel objected to the introduction of this document which came to light during the cross-examination of Berube by counsel for the school board. I initially understood that Berube’s court attendance was pursuant to a summons issued on behalf of the plaintiffs and the summons instructed the witness to bring all relevant documents to court. Later in the trial it was clarified that the summons for Cst. Berube came from the school board. In response to Mr. Fuhgeh’s assertion he had no notice of this document and was taken by surprise, Mr. O’Brien for the school board pointed out that this was not a document that was in the possession and control of any of the defendants and therefore was not required to be included in an affidavit of documents. I permitted the document to be marked as an exhibit but note that it is not before the court as a business record and that the author of the document, the 911 dispatcher, did not testify. I conclude that this document should be given significantly less weight than I originally thought.
[58] At the same time, I do not think that the identity of the person who made the call warrants the apparent significance ascribed to this issue by the plaintiffs. The pleadings and the evidence at trial support the view that the decision to call the police was sourced with the Raahemi family, not school officials. Specifically, I find as a fact that the call to the police was not initiated by Mark Harris.
[59] In general, I found that the evidence from the school officials was credible, internally consistent and generally consistent from witness to witness. The evidence of all four school witnesses disclosed an educator’s perspective on the events in question. Their testimony did not allege improbable or unlikely facts or scenarios.
[60] I agree that at times their recollection of events was poor and in the case of Peter Campbell, he had virtually no recollection of any particulars at all. Mark Harris’s recollection tended to be better than the other witnesses but this can be accounted for by the fact that he was the only one named personally in the litigation. He was more motivated than the others to keep the memories alive. It made sense to me that their recollection of individual students and specific events from so long ago would have faded over the years, especially considering that each year brought a new crop of about four hundred grade 9 students to the school and that they have each dealt with many thousands of students since the events in question.
[61] I also found Noah Raahemi to be a credible witness. He answered questions clearly, directly and without hesitation. He had a good recollection of the sequence of events and was not shaken from his testimony in chief during cross-examination. He was polite yet firm in his answers to the cross-examiner’s questions. He did not seem prone to exaggeration or overstatement. He denied bullying or assaulting Ms. Hajrizi and I accept this evidence.
[62] I found some aspects of Roksana Hajrizi’s testimony not to be credible. I would include here her allegations about vice-principal Harris locking her in a vacant office and not letting her use the washroom. On this point, I recall Rupi Bergamin’s comment that educators are not in the business of locking students up and that fire regulations prohibited the use of locks that are able to confine someone in a room that cannot be opened from the inside.
[63] Also, I wondered why, if as Ms. Hajrizi testified, she made a complaint on September 18th about Mr. Raahemi being a bully, yet three days later, on September 21, when she says he shoved and kicked her, she did not report it. This reporting of a less egregious incident yet not reporting a much more serious incident seemed inconsistent. I have concluded that her evidence about complaining to Mark Harris on September 18th is not correct.
[64] Another point is that both Roksana and her mother contended that she was expelled from Glebe. This was contradicted by Ms. Bergamin who said that Ms. Hajrizi was transferred to Woodroffe High School pursuant to an administrative transfer because of her involvement in another incident at Glebe later in the semester.
[65] Also difficult to accept was Mr. Hajrizi’s contention that neither the police or school officials called his home on September 21st to advise him of what was going on with his daughter. Vice-principal Harris said he called twice that day but was unable to speak with a parent. Cst Berube said he also called the Hajrizi residence on the day in question. The first call was at about 12:30 pm. He spoke with a girl who answered the phone but not a parent. The notes from his duty book were filed on consent as business records. They record a comment that Ms. Hajrizi told him that he was likely speaking with her 14 year old sister. He testified he called again at about 6:30 pm and spoke with Mr. Hajrizi. This is confirmed by an entry in his duty book.
[66] I accept the evidence of Cst. Berube that he alone made the decision to charge Roksana Hajrizi with uttering a threat based on his interview with Noah Raahemi and Noah Raahemi’s desire to pursue the matter further. I also accept his evidence that he was not induced, influenced or persuaded to do so by Mark Harris.
[67] There was nothing in the evidence that led me to conclude that the standard of care exercised by the school officials fell below what ought to be expected in a secondary school in the circumstances of this case. In particular, the plaintiffs’ insistence that the comments by Noah Raahemi’s teachers in elementary school ought to have prompted school officials at Glebe to treat him as having increased risk factors, is not a viable argument. Leaving aside for the moment the evidence that it would be difficult to review the elementary school report cards for four hundred incoming grade 9 students, Mr. Campbell made the point that children change so quickly from year to year that such information becomes rapidly out of date. Another school witness said that incoming students starting out in grade 9 are generally treated as having a clean slate and are entitled to a fresh start. Ms. Bergamin said it usually didn’t take long for incoming students with behavioural issues to come to the attention of the vice-principals. Most importantly of all, however, is that the comments are rather innocuous and not at all indicative of a student who requires special handling to protect other students.
[68] I found no evidence that the events of September 21st were handled negligently by school officials. To the contrary, it seems to me that vice-principal Harris dealt with the situation professionally and in keeping with his responsibilities both as an educator and as an administrator responsible for school order and discipline. I do not accept the contention that his actions were motivated by malice towards Ms. Hajrizi or that he engaged in flagrant or outrageous misconduct.
[69] I note that one of the torts alleged by the plaintiffs is false imprisonment. The parties agree on the elements of this tort. The real issue is whether the confinement of the student was justified. I find that it was. Requiring a student to remain in a designated location and prohibiting their movement without permission in the circumstances of this case is incidental to the proper functioning and discipline of a secondary school. The confinement took place during school hours and in the context of the investigation of a threat by one student against another. Vice-principal Harris testified that he was still investigating the matter when the police arrived and shortly thereafter Ms. Hajrizi was turned over to Cst. Berube. Confinement of a student in a vacant office with the door closed but with a two feet by three feet clear glass window in the door for what Ms. Hajrizi said was about 15 to 20 minutes, as occurred here, is not actionable. I accept the evidence of Mark Harris that Ms. Hajrizi asked to go a washroom outside the administration area. This request was refused because there was a closer washroom adjacent to the cluster of offices used by the vice-principals.
Disposition
[70] I find that on a balance of probabilities, the plaintiffs have failed to prove their claims against the defendants. The defendants are entitled to an order dismissing the action.
[71] On the issue of costs, the defendants shall have 15 days to prepare their costs submissions and a bill of costs and the plaintiffs shall have 15 days to respond. The costs submissions shall not exceed 10 pages.
Mr. Justice Martin James
Released: May 8, 2018
COURT FILE NO.: CV-11-52160
DATE: May 8, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROKSANA HAJRIZI, ISMET HAJRIZI and CELINA URBANOWICZ
Plaintiffs
– and –
OTTAWA-CARLETON DISTRICT SCHOOL BOARD, MARK A. HARRIS and NOAH RAAHEMI
Defendants
REASONS FOR DECISION
JAMES J.
Released: May 8, 2018