Court File and Parties

2019 ONSC 1783 Court File No.: 13-40070 Date: 2019-05-31 Ontario Superior Court of Justice

B E T W E E N:

DEBORAH TILLI Jonah Waxman, Lawyer for the plaintiff Plaintiff

- and -

STEPHANIE DEPONTE, ERICA DITOMASO, JOHN DOE TEACHER 1, JOHN DOE TEACHER 2, JOHN DOE TEACHER 3, JOHN DOE TEACHER 4, and HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD Mary A. Teal, Lawyer for the defendant, Erica DiTomaso Sabatina Vassalli, Lawyer for the defendant, Hamilton-Wentworth Catholic District School Board Defendants

Heard: March 18, 19, 20, 21, 2019

Judgment

Introduction

[1] The plaintiff brings this action for recovery of damages for personal injuries sustained in a physical altercation at her school with the defendant Erica DiTomaso, another student, on September 19th, 2008.

[2] The parties have agreed on damages.

[3] The parties have also agreed to the release of the defendant Stephanie DePonte, a fellow student.

[4] The action remains as well against the Hamilton-Wentworth Catholic District School Board, on behalf of the teachers of St. Jean de Brébeuf High School.

[5] The issue before me is the liability of the defendant Ms. DiTomaso, who the plaintiff alleges caused her injuries by smashing her head on the floor. The school board is alleged to have been negligent by providing inadequate supervision to prevent this incident from occurring.

Facts

[6] The plaintiff Deborah Tilli was the first witness to give evidence. She is currently 25 years of age and the mother of two children.

[7] At the time of this incident, being September 19th, 2008, she was 15 years of age and a Crown Ward living with foster parents. She was in grade 10 at St. Jean de Brébeuf High School in the City of Hamilton, having completed grade 9 the year before.

[8] The plaintiff had just finished her first class of the morning which was located on the first floor of the school. She had left that classroom, proceeded up the stairs to the second floor where her locker was located. Her locker was close to the locker of her friend Nick Scopinaro. In fact, she and Nick were talking beside their lockers getting their books for their second class which was located on the second floor just prior to this incident occurring.

[9] The plaintiff states that as she was standing at her locker talking to Nick she saw the defendant Erica DiTomaso and Stephanie DePonte walking down the hall towards them. She stated that she had met the defendant DiTomaso in grade 9 and she considered her a friend. She had known Ms. DePonte since middle school and considered her an acquaintance.

[10] The plaintiff states that for no apparent reason the defendant DiTomaso came up to her and accused her of calling her names and wanting to know why. The plaintiff states she denied calling her names and then suddenly DiTomaso slapped her, a scuffle ensued, and they both fell to the ground. As DiTomaso was on top of her, she held the plaintiff’s head with both hands and smashed it into the floor at least once. The plaintiff recalls the defendant DiTomaso being pulled off her and being helped to her feet by her friend Nick and then he escorted her into a classroom where he told the teacher about the incident. An ambulance was called, and she was taken to the emergency ward of the hospital where she was released later that day.

[11] The plaintiff states emphatically that she never called the defendant DiTomaso any names, either on the day of the incident or on prior occasions. She states that there is no reason for her to do that as they were friends and she can think of no reason why the defendant DiTomaso would approach her, accuse her of calling her names, and then suddenly slap her. She never bullied or attempted to bully the defendant.

[12] It is significant that the plaintiff has a very limited memory of the events before and after this incident and indeed could not recall some parts of the incident. Yet she assured me she had a distinct and very vivid memory of first being slapped by the defendant DiTomaso and her head intentionally being smashed on the floor by the defendant DiTomaso. The events in between, she appears to have no memory of.

[13] This plaintiff had no discipline issues at the school. She stated her transition from middle school to high school was good. She stated she had lots of friends. She had no issues with her foster parents. She found grade 9 enjoyable, liked high school, and had no issues with anyone.

[14] The plaintiff tells me that there were lots of students around when this incident occurred.

[15] The plaintiff has no memory of how long this incident lasted. She had no memory of what occurred between the slapping and her head being smashed on the floor. She does however have a memory that there were no teachers in the vicinity. The top right back of her head was smashed against the floor.

[16] The plaintiff recalls talking to the principal and vice principal with her mother, but she is not sure of the date. She was not disciplined by the school. She also recalls speaking to the police who came to her parent’s house but again does not know what she said to the police.

[17] The plaintiff was well aware, as of early grade 9, that the school had a zero-tolerance policy for any type of violence. All students were told this immediately upon their arrival each September and in fact it was a policy provided to them in written material at the beginning of each year.

[18] According to the plaintiff, prior to this incident, she would see teachers transitioning between classrooms between periods. After this incident she noticed teachers monitoring the hallways as well as transitioning to classrooms between periods. There was no other evidence to confirm any type of change of the teacher supervision policy and in fact the overwhelming evidence, that I accept, indicated there was no change whatsoever.

[19] The plaintiff cannot remember if she defended herself. She denied being able to escape because the two girls were, as she says, “in her face” and she was up against the lockers. She has no recollection of what DePonte may have said to her, but certainly recalls that the tone of voice of the defendant DiTomaso was aggressive. The plaintiff recalled vividly, that immediately after she told DiTomaso that she did not call her names, she was slapped. Her friend Nick never intervened, and she has no idea why not. She does not remember any involvement of Stephanie DePonte in the physical altercation.

[20] In her examination in chief, the plaintiff did not remember asking Nick to hold her books after she was slapped so her hands would be free. It was pointed out to her that at her discoveries she did indeed indicate that after being slapped she asked Nick to hold her books. The plaintiff also recalled on discoveries that there was hairpulling between her and the defendant DiTomaso but in chief she had no memory of that. As well at discoveries, she did not specifically indicate DiTomaso’s hands were on her head when it was smashed on the floor however she did make a motion to some effect on discoveries which was not described for the record.

[21] The ambulance call report, the nurse’s triage report, and the emergency doctor’s report were put to the plaintiff, all of which gave a history that is attributed to the plaintiff that the two girls were in a scuffle, fell to the floor and the plaintiff hit her head. The plaintiff does not recall saying anything to these individuals.

[22] The plaintiff stated that there were numerous Facebook postings by friends asking how she was doing but the plaintiff could not remember how she responded. Significantly, she has not produced any of these Facebook postings and gives no plausible explanation as to why they have not been produced.

[23] The plaintiff admits that she had no idea there would be any psychical altercation until she was slapped. She agreed there was no warning that there was going to be any problem that the school would have been aware of. She also did not disagree that there were three minutes between class breaks. She had no idea how long the fight lasted but she had come from her first class, up the stairs, down the hallway to her locker prior to the fight occurring. The plaintiff has no evidence of any teacher being in the vicinity of where the fight occurred.

[24] The next witness called was Nick Scopinaro, a class friend of the plaintiff. According to her, he was next to her during this whole incident and would of course have had a perfect ability to observe everything that went on.

[25] Quite surprisingly the plaintiff called Mr. Scopinaro as a witness for her and he immediately indicated he has no memory about this incident whatsoever. He was shown his statements to the vice principal which he reviewed and stated they did not jog his memory in any way, that he did not remember giving the statements to the vice principal and that he has absolutely no recollection of this incident whatsoever.

[26] On cross examination he vaguely recalled that there may have been a fight, but he has no idea who was involved or how it occurred. He admitted that he knew, and all students knew, that the school had a no violence policy. He stated there were lots of fights in high school and he does not remember any of them, who was involved, or how many occurred. His total lack of memory was not credible to the court given that one of his close friends was involved in a fight 1-2 feet away from him, causing her injury, the police being called along with paramedics, and a couple of students being suspended for 30 days.

[27] The next witness was Jacqueline Lance. This witness was a teacher at the school in September 2008. She was teaching grade 10 science. She has been a teacher at St. Jean de Brebéuf High School for 22 years. She was teaching in room 209 on the second floor. She had taught the plaintiff’s first period science class. She did not leave the classroom after teaching that class, contrary to the plaintiff’s evidence that her first class was on the first floor. She was not in the hallway when this incident occurred. She was in her classroom when she heard about the incident. The incident occurred down the hall and around the corner from her classroom. She went out into the hallway and saw a cluster of students. She then walked into another classroom and the plaintiff was lying on the floor. She does not know when she arrived at that classroom or when the plaintiff arrived.

[28] This witness was referred to a supervisory schedule, filed as an exhibit, for supervision by teachers of various areas of the school. She confirmed that in reviewing this supervision schedule, there was no specific teacher supervising the second-floor hallways between classes.

[29] On cross examination this teacher confirmed there is only three minutes between periods. She stated that the schedule of supervision has been the same for the last 22 years. There is no formal supervision of hallways during transition periods because the hallways are full of teachers going from classroom to classroom. The supervision schedule is only to supervise high traffic areas when students are in class such as the front door area and the cafeteria. When students are in class, the hallways are empty and there is no reason to supervise them. When the students are transitioning between periods, the hallways are full of teachers as well, transitioning between classrooms. This witness confirmed the incident occurred during a transition period and that there would have not been any specific supervision of the hallway at that time. This witness also indicated that from her experience during transition times, it is very noisy, very loud, with many students moving to and from classrooms, going to their lockers, slamming locker doors, talking, shouting and laughing with each other. The noise level is such that it would be very difficult to discern the noise of a fight specifically until attention was drawn to such an incident.

[30] The next witness was the defendant Erica DiTomaso.

[31] Erica DiTomaso was in grade 10 when this incident occurred. She considered herself “an acquaintance” of the plaintiff, not a friend. She had met the plaintiff in grade 9. She states they had no real relationship in grade 10.

[32] Ms. DiTomaso recalls that during the few weeks prior to the incident, on two or three occasions the plaintiff yelled names at her when she walked down the hall. She didn’t react during those two or three occasions. It was not until this incident occurred that she finally did react.

[33] She knew Stephanie DePonte from school having met her in grade 9. She stated they were classroom friends. In grade 10 they took some classes together.

[34] Ms. DiTomaso said that she was not a discipline problem at school. She recalls this incident occurred around 9:30 a.m. between first and second period. She was unsure how much time elapsed between first period and second period. She had gone to her locker on the second floor and was going to her second period class. She doesn’t recall if she was walking with anyone, but as she went down the hall, she saw the plaintiff and Nick Scopinaro at their lockers. The plaintiff then yelled some nasty names at her. Ms. DiTomaso went over to the plaintiff and asked why she was saying names about her. The plaintiff then kicked Ms. DiTomaso in the foot, and in turn Ms. DiTomaso slapped the plaintiff and then mutual slapping and hair pulling started between the two girls with both falling to the ground.

[35] The defendant admits that when she fell, she was on top of the plaintiff on the floor. She recalls someone trying to pull her off the plaintiff who was holding her shirt, and then she fell back down on top of the plaintiff. She then got up by herself. She states she couldn’t be pulled off the plaintiff initially because the plaintiff was holding her shirt. The plaintiff went up with her and then fell back down.

[36] Ms. DiTomaso does not know how long the incident lasted. When she left, she went into the washroom. When she came out of the washroom she was told to go to the office and that she was in a lot of trouble.

[37] Ms. DiTomaso agrees that the plaintiff was flat on her back on the floor and she was on top of her on her knees and arms. She has no idea if when she was pulled up from the plaintiff, the plaintiff fell back down and hit her head. She thought the plaintiff was fine after this incident.

[38] Ms. DiTomaso was questioned by the police and a vice principal in the vice principal’s office. She was alone during this questioning. She cannot remember what she was asked or what she said. She does recall that the result was that she was suspended for 30 days. She never went back to that school and instead transferred to Thomas Moore Secondary School.

[39] This witness agrees she was upset with the plaintiff because of the name calling in the past and on this specific occasion and therefore she confronted her. The names used were such things as “bitch” and “slut.”

[40] This witness admits that in her statement to the vice principal, upon reading it, that she didn’t mention being kicked by the plaintiff, only that the plaintiff stepped on her foot. She agreed that her memory may have been better then than now. Although she is unclear as to how long this incident took, she thought no more then 35 or 45 seconds.

[41] This defendant agreed that on discoveries, she said initially the incident took five minutes and then changed her mind later and said only two minutes. She believes that what she said in court to me is now more accurate. She agrees as well that if a teacher had been standing right beside her she probably would not have slapped the plaintiff. She also agreed that if a teacher had been next to her, the plaintiff likely would not have kicked her. She states the only reason she slapped the plaintiff is because she recalled the plaintiff kicking her.

[42] Ms. DiTomaso admits that in her answers on discoveries, she thought that if the plaintiff hit her head it was because she fell back down while someone was attempting to pull the defendant off her. She further admits that she did not say in discoveries that the plaintiff was grabbing her shirt and that that was the reason she plaintiff fell back down.

[43] Ms. DiTomaso admitted that she plead guilty to a criminal charge on the advice of duty counsel. She was given a year and half probation. She does not really know what she pleaded guilty to but that it was some type of assault but didn’t really know what that meant. She further agreed she never appealed the suspension from the school.

[44] Ms. DiTomaso admits that the fight with the plaintiff was totally unexpected to her. She was not looking for a fight and never thought one would occur.

[45] Ms. DiTomaso, like all the other students, was well aware that there was a zero tolerance policy for violence at school and that this was made very clear to everyone on their first day in grade 9 and regularly thereafter.

[46] Ms. DiTomaso said she simply became frustrated because of the name calling and being kicked. She never looked to see if there was a teacher around because she was angry, and this occurred on a spur of the moment.

[47] Ms. DiTomaso also confirmed that at discoveries she said she was kicked, and the plaintiff did not just step on her foot. She states that is her recollection now, and she believes that to be true.

[48] Stephanie DePonte gave evidence and stated she was 14 years of age on September 19th, 2008 and in grade 10. She was an acquaintance with the plaintiff. She does not recall any issues between them.

[49] Ms. DePonte was in geography on the first floor for first period. Her second period she recalls was in a portable. She thought there were 2 – 3 minutes between classes and she was going upstairs to her locker after period one before going to period two. Her locker was around room 223 while the plaintiff’s locker was between room 227 and room 229.

[50] Ms. DePonte recalls that she was walking to class with Ms. DiTomaso that morning. She went up to the plaintiff as she walked by and asked if she was calling her names. The plaintiff denied this, and Stephanie walked away. She took 5 – 7 steps and heard Ms. DiTomaso say, “she said it again.” By the time she turned around, the plaintiff and the defendant were verbally yelling at each other and shortly thereafter becoming physical. She thought the whole incident lasted less then a minute. There was no teacher in the immediate vicinity.

[51] Once the incident was over she went to class. A vice principal came to her class to get her and she was questioned by him and the police, and ultimately suspended for 30 days. Her schedule and her locker changed so that she would not cross paths with the plaintiff in the future.

[52] Ms. DePonte, like all the other students, was well aware that there was zero tolerance for any type of fighting or violence in the school and this was well known to all. She also recalled there were a number of teachers in the hallways during transitions between periods.

[53] She remembers being in middle school with the plaintiff and at one point was friends with her. She then heard later that the plaintiff had told people she had been slitting her wrists, which was never true. She didn’t know about this gossip until after this incident.

[54] This witness confirmed she was never involved in this incident in a physical way. She has no recollection of the plaintiff hitting her head and has no idea who started the fight. When she looked back, the fight was in progress. However, on discoveries, she indicated that Ms. DiTomaso started the fight. Also, on discoveries, she indicated that she did see the plaintiff’s head hit the ground. However, before me, she stated that she no longer recalls if the plaintiff hit her head on the ground. Also, on discoveries, she stated that Ms. DiTomaso was holding the plaintiff’s head and banging it on the ground maybe up to three times. Before me however, she stated she does not remember if the plaintiff’s head was being smashed on the ground by the defendant.

[55] This witness’s credibility was badly shaken with her very divergent testimony before me and what she said under oath at discoveries about who started the fight and whether the defendant was smashing the plaintiff’s head into the ground. I give little weight to her evidence as a result.

[56] Vanessa Davis was 16 years of age and in grade 10 at the time of this incident. She recalls being 6 – 8 feet away and seeing the plaintiff, the defendant, and Stephanie DePonte arguing. She recalls the defendant slapping the plaintiff. She recalls the physical altercation lasting about 30 seconds and she then went to room 221 for class. She was well aware that fighting was totally forbidden at the school.

[57] This witness was adamant that Ms. DiTomaso started the fight by slapping the plaintiff. She also recalls the defendant was on top of the plaintiff who was lying on the ground. The plaintiff was on her back and the defendant was sitting on top of her stomach. She saw the defendant bang the plaintiff’s head on the ground. She is not sure how often but more then once. She did not see any teacher in the hallway.

[58] This witness recalls hearing the verbal exchange first. She recalls the hallway was quite busy. She was adamant that her sight line was not obstructed because she moved closer once she heard the incident. She does not remember seeing the plaintiff kick Ms. DiTomaso before the slap. She recalls the two girls pulling each other’s hair and then rolling around on the ground with the defendant ending up on top of the plaintiff and straddling her. She does not remember anyone trying to pull the defendant off the plaintiff. The incident occurred quite quickly.

[59] While the defendant was sitting on top of the plaintiff, this witness saw the defendant grab her by the hair and bang her head on the floor with some force more then once. She stated she has a vivid memory of this.

[60] After the incident, the defendant got up and left, and then the plaintiff got up and left.

[61] Brittany Borden gave evidence. The plaintiff is one of her best friends. She did not see this incident, nor did she go to the same school as the plaintiff.

[62] She confirmed that she made four posts on her Facebook page regarding the plaintiff and this incident. She no longer has any memory of making these posts. She believes she learned of this incident immediately after it happened from the plaintiff on Facebook. This witness did not know the defendant nor Stephanie DePonte.

[63] On cross examination she was no longer sure if she heard about this incident immediately afterwards or a few days later. She agrees that something else must have been posted online for her to make the inquiries that she did as set out in her post. She no longer has any memory of what the plaintiff may have said to her, and what this witness was attempting to answer in her post.

[64] This witness speculated on why she may have posted what she did but in reality, admitted she has no memory whatsoever of any of this. She admitted she could have heard from others about this incident on Facebook, even though it appears she may have been answering something that the plaintiff posted. She again emphasized she really has no memory whatsoever about this.

[65] I agree that her memory was non-existent about these posts and her evidence will be given little weight by me.

[66] Two further teachers, as well as the three vice principals gave evidence on behalf of the school. Their evidence was consistent that there was no specific monitoring of the hallways by teachers between periods as there were already many teachers in the hallways going from class to class. They all confirmed that if they had heard or seen any type of commotion between these students, they would have intervened.

[67] The three vice principals went through the process of interviewing the students with regards to this incident. The statements of the various witnesses and parties to this incident, which the vice principals made from their notes formed an exhibit for the Court.

[68] The vice principals confirmed that the supervision schedule was that during class time, while students are in classes, there is some supervision by unassigned teachers to the front doors and certain hallways. Between classes however there is no supervision by teachers because the teachers are in the hallways anyway transitioning.

[69] The undisputed evidence before me confirmed that 38 teachers were transitioning on the second-floor hallway between periods 1 and 2 on the morning of this incident. The exact route these various teachers would have taken on the second floor hallway is not known. However, the evidence which I accept is that at least 16 of the 38 teachers transitioning on the second-floor hallway, would have passed by the area of the incident. No teacher was aware of this incident.

[70] The evidence also indicated that if an altercation occurred during the transition between periods, it may be very hard for a teacher to see unless they are right there or if there was a very large group of students congregating, given the number of people transitioning and the volume of noise.

[71] No witness saw any obvious signs of trauma to the plaintiff. She was attended to by a vice principal and a teacher as they awaited paramedics. The plaintiff complained to them of a sore head.

[72] The vice principals confirmed that there was no change to any of the supervision policies after this incident and none were aware of any prior behavioral issues between any of the participants in this incident.

[73] One of the vice principals did look at the surveillance tape from the camera on the second floor hallway which pointed in the general direction of the incident, but he could see no altercation. All he saw was a large number of students in the hallway which was completely normal. There were between 1700 and 1800 students on September 19, 2008 and approximately 100 teachers in this school.

Position of the Plaintiff

[74] The plaintiff argues that the defendant Ms. DiTomaso is liable for the intentional tort of battery on her. Her counsel further argues that the defendant school board is liable in common law for the negligent supervision of its students. He points out that the defendant Ms. DiTomaso pled guilty to criminal charges regarding this incident and that should be given some weight. As well Ms. DiTomaso did not appeal her suspension from school. Plaintiff’s counsel submits that the preponderance of evidence supports the proposition that it is more likely than not that Ms. DiTomaso started the physical altercation by slapping the plaintiff and it more likely than not that at the end of the physical altercation, the defendant Ms. DiTomaso intentionally banged the plaintiff’s head on the floor with some force.

[75] Plaintiff’s counsel argues that the slap across the face is a harmful or offensive contact and the banging of the plaintiff’s head on the floor is also a harmful or offensive contact, and that is sufficient to prove the tort of battery. Such actions by the defendant Ms. DiTomaso, according to plaintiff’s counsel, were intentional and therefore she is liable of the tort of battery against the plaintiff.

[76] Plaintiff’s counsel argues that the defendant Ms. DiTomaso has not proven the defence of consent, nor has she proven self defence. Counsel further argues that if it is accepted that Ms. DiTomaso banged the plaintiff’s head on the floor, then such force was not reasonable or proportional to the harm threatened to justify self defence in any event.

[77] Counsel for the plaintiff also argues that the Hamilton-Wentworth Catholic District School Board is vicariously liable for the school and its teachers. That staff owed a duty of care to the students in their charge. That duty of care is that of a careful and prudent parent. Counsel further argues that a school must have an adequate supervision policy in place.

[78] Plaintiff’s counsel concedes that none of the participants in this incident had any history of discipline issues such that the school would have increased supervision over and above the norm for that student population.

[79] Plaintiff’s counsel’s primary argument is that the specific lack of a supervision policy between periods was inadequate and fell below the standard of care of a prudent and careful parent. In the alternative, plaintiff’s counsel argues that if the Court finds this supervision policy was adequate, then there was a specific failure of implementation of that policy at the time of this incident.

[80] The position of Ms. DiTomaso is that there was no threat of violence as this was a sporadic and unplanned event and therefore there was no assault. Without assault there can be no battery. In the alternative, counsel for Ms. DiTomaso argues that this was “a consent fight” and the plaintiff cannot complain of injuries suffered as a result, unless the force used by the defendant was excessive or unnecessary. I am urged to find that the evidence of Ms. DiTomaso should be accepted that she denied banging the plaintiff’s head on the floor and therefore excessive force was not used.

[81] In the further alternative, the defendant Ms. DiTomaso argues that if the Court does find that the force exerted by her was excessive, then the Court must determine whether the defendant behaved in a reckless and careless manner under a negligence analysis. Ms. DiTomaso’ s counsel further argues that if the Court accepts that Ms. DiTomaso was negligent, then the plaintiff’s damages may be reduced through her own provocation which she argues is a form of contributory negligence and mitigates damages whether arising from the intentional act or a negligent act. Counsel argues that Ms. DiTomaso was provoked by the verbal bullying and name calling that had gone on for some time by the plaintiff, and which occurred again on that particular day, as well as being kicked according to the evidence of the defendant.

[82] The school board concedes that it has a duty to meet a standard of care of a careful and prudent parent. In this case, the students involved in this incident were 15 years of age. Quite simply, the school board argues that there was no breach of adequate supervision of these 15-year-old students during the 3-minute period between classes with the number of teachers clearly in the same hallway at the same time. Counsel for the school board further argues that there was no expert evidence adduced to show that the school board fell below the standard of care compared to any other school board in the province or that it failed to meet its own supervision plan or that its supervision policy fell below the standard of care.

[83] Counsel for the school board points out that the fight in question was sudden and unforeseen with no prior warning to the school. As well there is no evidence that the participants in the fight had behavioral problems of any sort.

Credibility of the Witnesses

[84] The plaintiff appeared to have a number of memory gaps of certain facts and yet had very firm memories of other key events. No evidence was led that any memory issues are part of any injury she may have sustained. As well, there were some discrepancies between her evidence before me and her discovery evidence. Likewise, a lack of an explanation as to why a more complete record of relevant Facebook postings were not produced causes the court some difficulty. The totality of these of these discrepancies leaves the court with some credibility issues regarding the plaintiff’s evidence.

[85] The court is also somewhat skeptical of the evidence of the defendant Di Tomaso as to how exactly this fight started but more crucially on the issue of banging the plaintiff’s head on the floor. She also had discrepancies between her evidence on discovery and before me. In addition, her evidence before me on a couple of crucial issues was different from her statement to the vice principal. Her plea of guilty has also been considered and her lack of knowledge regarding what she pleaded guilty to is somewhat suspect.

[86] On the issue of the fight itself, the most credible witness in the court’s opinion was Ms. Davis who was 16 at the time. No evidence was led that she was particularly affiliated with either of the parties involved. She appears to have had no ax to grind. She had a clear view of this entire incident being only 6-8 feet away. Her view remained unobstructed. She had a clear memory and was not shaken on cross examination. I accept her evidence as the most accurate.

[87] The evidence of Ms. DePonte was not credible given her very different versions before me compared to her earlier testimony and statements.

[88] Little turns on the evidence of Ms. Borden and her posts. They add nothing to the narrative without some context which was not provided by either her nor the plaintiff as neither had any memory of these posts or how they came about.

[89] The evidence of the teachers and vice principals was straight forward and factual. All were consistent with each other and none were shaken on cross examination. I accept their evidence as accurate on the topics that they testified about.

Analysis

a) Liability of the School and Teachers

[90] I find there is no liability on the school, teachers or school board for the following reasons.

[91] The standard of care is that of a careful and prudent parent; see Myers v. Peel County Board of Education, [1981] 2 S.C.R. 940, at para. 31.

[92] In this case the standard is that of a parent of 15 year old teenagers, none of whom had any predisposition to violence or animosity with each other. Neither party had any type of discipline issues. As well these teenagers were well aware of the zero tolerance policy of the school for any type of fighting or violence and were obviously aware that serious repercussions would be enacted for any breach of that policy.

[93] The school had a supervision policy in place; there were surveillance cameras, and numerous teachers circulating in the hallways for the 3 minutes between classes. No evidence was led by the plaintiff as to what else the school should have done to prevent this incident from occurring. No expert evidence was led that this school’s supervision policy on the occasion in question fell below the accepted standard or what was common in other schools. No expert evidence was called that the school supervision on the occasion in question fell below the standard of a reasonable and prudent parent of a teenager.

[94] A 15-year-old teenager is not supervised constantly by a careful parent. They go out alone with friends, they travel to school alone, they are no doubt at home alone for periods of time, they take public transportation alone and many babysit younger children or have other part time work. In short, they are young adults who are aware of what is expected by way of behavior in a civilized society, without being supervised constantly.

[95] It is not lost on this court that this was a sudden and spontaneous event that escalated and finished in approximately 30-45 seconds. Only by having a teacher posted in the exact area of this incident, at the very time it occurred, could the school perhaps have prevented the fight from occurring. Such a standard is not reasonable and certainly not one any reasonable and prudent parent would be expected to adhere to with its own teenage child; see Patrick v. St. Clair Catholic District School Board, 2013 ONSC 4025; Da Silva v. Gomes, 2018 ONCA 610.

b) Liability between the Students

[96] I accept the evidence of Ms. Davis that something triggered a shouting match between these two parties. I accept it was probable that the triggering event was name calling by the plaintiff towards the defendant on prior occasions and on this particular morning. I accept that the plaintiff would have known that her name calling of the defendant in front of the student body would eventually provoke a reaction as indeed occurred. I find this provocation started the shouting match and eventual fight.

[97] In my view this was a consent fight at the beginning. Both women were willing participants in this altercation. It is likely that Ms. DiTomaso slapped the plaintiff as stated by Ms. Davis however she did not see if the plaintiff kicked the defendant or stepped on her foot prior to the slapping. Prior statements would indicate that likely occurred however, I conclude that who started the fight is of little importance. It is clear to the court that this was a consent fight of hair pulling, perhaps a slap and a kick and then mutual pushing and shoving with both parties losing their balance and falling to the floor with the defendant ending up on top; see MacMillan v. Hincks, 2002 ABQB 283; Charland v. Cloverdale Minor Baseball Assn., 2013 BCSC 488.

[98] I conclude this fight stopped being consensual when Ms. DiTomaso took the plaintiff’s hair on each side of her head and banged the back of the plaintiff’s head forcefully on the tile floor on more than one occasion. Such an act and the force as described by Ms. Davis was completely unreasonable and grossly excessive. It was at the very least careless and reckless and any reasonable person would expect such action to cause injury to the plaintiff as indeed happened here.

[99] Ms. DiTomaso at that point had won the consensual fight, she was on top, she was in total control. To inflict further force as she did was uncalled for and unnecessary to protect or defend herself. In the courts view there was no justification for such excessive force being applied when any threat from the plaintiff towards the defendant had dissipated. It was done strictly to inflict pain and injury to the plaintiff which was exactly what happened and it was completely foreseeable that such an action would cause injury.

[100] I conclude that Ms. DiTomaso is 60% responsible for the damages inflicted on the plaintiff as a result of the excessive force she applied by banging the plaintiff’s head on the floor on more than one occasion.

[101] Provocation works to mitigate damages. It is a form of contributory negligence and mitigates damages whether arising from an intentional act or negligence; see Hurley v. Moore, [1993] 107 D.L.R. (4th) 664 (Nfld. C.A.).

[102] I find the plaintiff to be 40% responsible for her own injuries by provoking the confrontation with name calling when she knew or ought to have known there would be repercussions from the defendant for her behavior; see MacMillan, supra at para 32.

Conclusion

[103] The action against the teachers and school board is dismissed with costs.

[104] There shall be judgment for the plaintiff of 60% of her damages from the defendant, Ms. DiTomaso.

[105] It is expected that the parties will resolve costs. However, if they are unable then they may file brief written submissions with my office of no more than 4 pages double spaced in addition to any offers and draft bills of costs. The plaintiff shall have until June 21, 2019 to file her submissions and the defendants by July 12, 2019.

Arrell, J.

Released: May 31, 2019

2019 ONSC 1783 COURT FILE NO.: 13-40070 DATE: 2019-05-31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DEBORAH TILLI Plaintiff

• and – STEPHANIE DEPONTE, ERICA DITOMASO, JOHN DOE TEACHER 1, JOHN DOE TEACHER 2, JOHN DOE TEACHER 3, JOHN DOE TEACHER 4, AND HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD Defendants JUDGMENT HSA

Released: May 31, 2019