BARRIE COURT FILE NO.: CV-20-719-00

DATE: 20240920

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HUDSON LAPOINTE Plaintiff

– and –

SIMCOE MUSKOKA CATHOLIC DISTRICT SCHOOL BOARD Defendant

COUNSEL: Troy H. Lehman, Charles Jung and Holly Schmid, for the Plaintiffs Renata Antoniuk and Chet Wydrzynski, for the Defendant

HEARD: September 18, 2024

REASONS FOR DECISION ON MOTION TO EXCLUDE EXPERT EVIDENCE

HEALEY, J.:

Nature of the Motion

[1] This action is being tried on the issue of liability only. The plaintiff was seriously injured while pitching during an interschool three pitch softball tournament held on May 16, 2018.

[2] The only issues to be decided by the jury is whether the defendant, the Simcoe Muskoka Catholic District School Board (the “Board”), met the standard of care required to protect grade seven and eight students who played on their school’s three pitch softball team and at the tournament, and whether any breach caused the plaintiff’s injuries.

[3] The Board obtained two liability reports from Susan McMahon, the first dated December 22, 2023, and a supplemental report dated July 29, 2024.

[4] Counsel for the plaintiff brought an oral motion during the trial to exclude her evidence.

[5] Although the plaintiff had delivered a liability report in response to service of the first defence report, counsel decided during the trial to not to call that witness.

The Opinion

[6] The Board’s lawyers sought to tender Ms. McMahon as an expert in the area of student physical health and safety.

[7] There were three opinions offered by Ms. McMahon in her first report, which were unchanged in her supplemental report. These were:

(a) The applicable standard of care expected of an Ontario school board that was in place on May 16, 2018, regarding safety and equipment for running an elementary interschool softball tournament is found in the Ontario Physical Education Safety Guidelines and specifically on the page titled, Elementary Interschool Softball (Lob Ball/Slow Pitch/Three Pitch)-2012.

(b) On May 16, 2018, the standard of care did not require the Simcoe Muskoka Catholic District School Board to mandate that pitchers competing in its elementary interschool softball tournament wear a face mask.

(c) The Simcoe Muskoka Catholic District School Board did meet the standard of care with respect to pitchers’ headgear in its elementary interschool softball tournament on May 16, 2018.

Evidence from the Voir Dire

[8] Susan McMahon gave evidence on the voir dire. Her background and expertise within the scope outlined by counsel were not in dispute. She holds a Bachelor of Arts in physical education, and a Bachelor of Education with qualifications in physical education and mathematics, both from the University of Western Ontario. She placed on the Dean’s Honour List each year. She worked as a health and physical education curriculum consultant for the London District Catholic School Board from 2004 to 2016. In that capacity she worked in various roles, including being the safety contact for the Ontario Physical Education Safety Association (“OPHEA”). She also worked on the development of that board’s concussion protocol and the implementation of the revised health and physical education curriculum.

[9] Ms. McMahon also sits on various committees in the field of health and physical education. One of those past roles was as a committee member writing the OPHEA Safety Guidelines. Her evidence was that she did not work on the Guidelines that were in effect in 2018.

[10] Since 2016, she has worked on a contract basis as a safety consultant for OPHEA. In that capacity she is part of the writing team on the Safety and Injury Prevention Advisory Committee. She also is a website contributor for “Ask OPHEA”, answering questions that are posed by educators and members of the public.

[11] She has never been qualified to give opinion evidence in a court proceeding.

[12] Prior to rendering her first report, Ms. McMahon had read the pleadings, a one-page incident report, the plaintiff’s health form for the 2017/2018 school year, the tournament rules for 2018 and 2019, the permission form sent to the plaintiff’s parents regarding his participation on the team, the Board’s field trip procedure, the OPHEA Safety Guidelines for both Elementary Interschool Baseball and Softball from 2012, and the OPHEA Safety Standards in Education for Elementary Interschool Ball from 2020.

[13] She was not provided with the transcripts of the examinations for discovery. The plaintiff, his parents (who were then parties), and the coach of the team, John Miorin, had been examined. It was her evidence that she did not believe that she needed that information to reach her opinion.

[14] Her analysis was a straight-forward one: the Ontario Curriculum, grades 1-8: Health and Physical Education, 2015 required teachers to follow Board safety guidelines, and the Board’s policy documents required that teachers follow the OPHEA Safety Guidelines when planning and implementing sports activities. Those Safety Guidelines set the standard of care. The applicable guideline covering Elementary Interschool Softball, including three pitch, did not mandate that masks be worn on pitchers. Accordingly, the Board met the required standard of care. Her report indicates “I do not believe there to be a range of opinions”.

[15] After reading the transcripts, in her supplementary report Ms. McMahon indicated that her perception of Mr. Miorin’s evidence was that he did not believe the plaintiff was at risk and in need of face protection. That comment is a misstatement of his evidence. In fact, he testified at his examination for discovery that before the plaintiff was injured, he was aware that getting hit with a softball could cause injury including, if hit in the head or face, a concussion or broken bones, and agreed that he knew that the head area could be vulnerable. He testified that the risk of a pitcher getting hit by a ball and injured would be higher than that of her getting hit by a ball. He testified that he had not read the OPHEA Safety Guidelines for three pitch before the tournament. This was just some of the evidence given by him that contradicted the conclusion that he had considered and taken steps to protect against foreseeable risks in the circumstances.

[16] Ms. McMahon testified that she assumed that his decision to not suggest or require that the pitcher wear a face mask was based on the fact that he did not believe there to be a risk. She reasoned backward from the lack of face mask to infer Mr. Miorin’s state of mind.

[17] Further, while touched on in her initial report, her supplementary report provided another opinion, which was that the plaintiff’s parents were informed of the potential risk of the game at the time that they gave him permission to participate. She offered that, in her experience, parents who are concerned about safety will disallow participation, and from that she extrapolated that the plaintiff’s parents had not been concerned with risk.

[18] She did not consider any of their discovery testimony in relation to what they knew or were informed about the risks, or even that they were unaware that their son would be pitching at the time that the permission form was signed. She testified she did not believe she needed that information to finalize her opinion, because her opinion was based on her experience.

[19] Before offering her opinion, she did not seek out information about how other schools in the Board’s catchment area were behaving around the use of face masks on pitchers during three pitch, do any research about how other local softball organizations were approaching the issue or consult any related studies or literature. She did not believe that she needed to do so because the standard of care, unequivocally in her mind, was for the board to follow the OPHEA Safety Guidelines.

[20] Before offering her opinion, she did not consider or discuss that part of the 2018 curriculum that states “safety awareness, based on up-to-date information, commonsense observation, action, and foresight, is the key to safe [health and physical education] programming”, which specifically directs what teachers are to do to identify potential risks and minimize incidents and injuries.

[21] There was no discussion in her report, nor consideration given, to whether safety standards had evolved from the time that the OPHEA Safety Guidelines for softball had been published in 2012. She stated that she did not discuss whether they are out of date because she did not believe that they were out of date.

[22] She agreed that the teachers were capable of providing evidence on how they use the OPHEA Safety Guidelines. Several of those teachers, as well as the principal of the school that was responsible for convening the tournament, had given evidence that those Guidelines were minimum or baseline standards. The Board’s own Risk Management Advisory in effect on the date of the tournament referred to them as the minimum standard that should be followed when planning and preparing students for participation in all sports.

[23] There is no mention of the Board’s Concussion Management Policy in either of her reports. At section 5.2, under Prevention, that Policy directs that staff shall teach the proper skills progressions and sport training techniques and explain how risks can be minimized, including proper use of mouthguards and helmets. She did not consider the evidence provided on discovery about whether that policy was followed by Mr. Miorin. Again, she did not believe any concussion information to be relevant to her opinion and stated that she had no idea what this board’s policy said.

[24] During the voir dire she offered her opinion that there was no helmet that could prevent a concussion. She indicated that this view comes from the information provided to OPHEA, according to which that organization develops concussion management policies. She provided this opinion, which was beyond the scope of her expertise, despite having read the report of Dr. Benjamin Elkin, a biomechanical engineer, who had testified to the contrary earlier in the trial in accordance with his written report. She agreed that she would have to defer to Dr. Elkin’s opinion. His opinion was that use of a face mask would likely have prevented the plaintiff from sustaining a concussion. This was a point that defence counsel had earlier told the court would be conceded.

[25] It was obvious in her testimony that she was confused that the standard of care, as a legal concept, was a question of fact to be decided by the jury. She was unaware of a decision by Regional Senior Justice Edwards in Peters. v. Peel District School Board, 2016 ONSC 4788, in which he clearly stated that compliance with OPHEA Safety Guidelines does not determine whether a school authority has complied with the required standard of care, but rather is only a factor in considering and understanding the “assessed risk of different disciplines and the type of supervision prudently required for each discipline”: at paras. 49, 50 and 87.

[26] She stated that it was her firm belief the applicable standard was met in this case, and that the plaintiff had no chance of success.

Ruling

[27] After considering the evidence from the voir dire and the submissions of counsel, this court ruled that Ms. McMahon would not be permitted to provide opinion evidence.

Analysis

[28] One of the threshold requirements for the admission of expert testimony is necessity. In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R.9, at para. 25, the Court stated that the testimony must be necessary in the sense that it will provide information “which is likely to be outside the experience or knowledge of a judge or jury”, quoting Dixon J. in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24. Further, if on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.

[29] The need for the proposed evidence is also assessed in light of its potential to distort the fact-finding process: Mohan, at para. 27.

[30] Ms. McMahon’s evidence is neither technical nor is its absence likely to lead to an incorrect decision in this case. The jurors do not need her assistance to appreciate and get an understanding of the rules of three pitch that were used at this tournament, the layout of the field, the incidence of a ball being hit in the direction of the pitcher, the softball skill level and variance of experience, size and athletic ability of the players at the tournament, the Ontario curriculum, the provisions of the OPHEA Safety Guidelines applicable to three pitch, how those guidelines have been used by the Board’s teachers, or to explain the provisions of the Education Act, as she suggested. They do not need her evidence to make a proper evaluation of the foreseeable risks presented by the activity. Over the course of the preceding days, the jury had heard detailed evidence from twenty-seven witnesses about these specific things. Her evidence would only be another voice in that mix, but one divorced from the realities of what occurred leading up to and at the tournament.

[31] Further, her evidence is highly likely to interfere with the fact-finding process. I agree with the submission from Mr. Lehman that she is an advocate for the defendant, rigidly adhering to her erroneous view that the only standard of care is that prescribed by the OPHEA Guidelines. Not only is that opinion incorrect in law, but also an opinion informed by a myopic and limited understanding of the evidence in this case. It is influenced entirely by her connection to OPHEA and her belief that that organization has the final word on all matters of safety standards in the sphere of education. Allowing her to testify would, in short, present a minefield of inadmissible hearsay, opinions that go beyond her expertise (such as the legal opinion that she offered with respect to the effect of the permission form), and unsupported assumptions. Even if I had reached the conclusion that it was necessary, there is no question that its questionable probative value would be outweighed by its prejudicial value.

Madam Justice S.E. Healey

Released: September 20, 2024