Court File and Parties

Court File No.: CV-22-00678744
Date: 2025-01-07
Court: Superior Court of Justice - Ontario

Plaintiffs:
T.S. and A.L. by his Litigation Guardian T.S.

Defendants:
Sasha Polak, RZA Abdullayev, Kandeephan Ganeshalingam Vincent Chow, Hubert Brard, and York Region District School Board

Before: Justice Anna Papageorgiou

Counsel:

• Justin Linden, for the Plaintiffs
• Renata Antoniuk, for the Defendant York Region District School Board, Vincent Chow, and Hubert Brard
• Michael Doyle, for the Defendant RZA Abdullayev
• Katrina Crocker, for the Defendant Sasha Polak

Heard: January 6, 2025

Endorsement

Overview

[1] This action arises from an incident that occurred at Hodan Nalayeh Secondary School in October 2021. The plaintiffs allege that one or more students at the school took a video of the Plaintiff in the school washroom, with his frontal genitals exposed, and distributed the video to other students at the school. He was in grade 9 at the time (the “Minor Plaintiff”).

[2] The defendants are:

• the York Region District School Board, Kandeephan Ganeshalingam Vincent Chow, the Principal, and Hubert Bard, the Vice Principal (the “Schoolboard Defendants”)
• the students alleged to have been involved in the incident (the “Student Defendants”). They were named as John Doe Student but two of them have since been identified and the Claim has been amended to add their names.

Nature of the Motion

[3] The parties have settled this matter.

[4] They bring a motion pursuant to r. 7 for approval.

Issues

• Are the materials satisfactory to demonstrate that the settlement is fair and reasonable?

Analysis

Issue 1: Are the materials satisfactory to demonstrate that the settlement is fair and reasonable?

[5] I am not satisfied that the materials filed on this motion demonstrate that this settlement is fair and reasonable.

The Allegations

[6] The Statement of Claim sets out the details of a significant incident that followed a period of bullying. It alleges that in the period prior to a nude video being taken, the Minor Plaintiff reported incidents of bullying to Schoolboard Defendants and they failed to take proper precautions. It states that the incidents were not limited to physically harming the Minor Plaintiff, but included spitting in his schoolbag, taking his cellphone from him without his permission, taking pictures with it and damaging his belongings.

[7] With respect to the incident in question:

• On September 30, 2021, T.S. personally reported the incidents of bullying to the defendant school employees. She advised that her children were afraid to go to school and she inquired as to what actions were going to be taken.
• On October 12, 2021, the Minor Plaintiff went to the boys’ bathroom. While there, one or more students took one or more pictures and videos of the Minor Plaintiff with his pants down. These pictures and videos captured a clear image of his genitals and is considered to be child pornography.
• His mother, T.S., attended at the school and was assured that the Schoolboard Defendants had searched the students’ electronic devices and had not found the photograph and videos. Two days later, someone posted a video of the Minor Plaintiff in the bathroom on social media.
• The Schoolboard Defendants failed to remove, suspend, expel or properly discipline the students involved in this incident.

[8] As against the Schoolboard Defendants, the Claim asserts that they knew or ought to have known that the Minor Plaintiff was a special needs student who was vulnerable and in need of protection. Despite being informed of the bullying and similar incidents occurring within the defendant school board, they failed to take corrective action.

[9] The Statement of Claim references the Education Act, RSO 1990, c E.2 which contains the following obligations with respect to behavior, discipline and safety:

a) To create schools in Ontario that are safe, inclusive and accepting of all pupils.
b) To encourage a positive school climate and prevent inappropriate behaviour, including bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia.
c) To address inappropriate pupil behaviour and promote early intervention.
d) To provide support to pupils who are impacted by inappropriate behaviour of other pupils.
e) To establish disciplinary approaches that promote positive behaviour and use measures that include appropriate consequences and supports for pupils to address inappropriate behaviour.
f) To provide pupils with a safe learning environment.

[10] The plaintiffs say that the Schoolboard Defendants are liable for breach of contract, breach of fiduciary duty, negligence and breach of their duties under the Occupiers' Liability Act, RSO 1990, c O.2. They say the Student Defendants are liable for creation/distribution of pornography, allowing it to be posted on-line, malicious harassment, bullying, negligence, and intentional infliction of emotional harm.

[11] With respect to damages, the Claim states that the incident caused the Minor Plaintiff psychological and emotional injury and trauma and that he continued to suffer from anxiety, depression and a fear of going to school. It states that he continued to suffer from nightmares, social anxieties and that his injuries were accompanied by shock, anxiety, and insomnia that will continue to be present in the future. It states he is unable to participate in educational, recreational, social and athletic activities.

The Settlement

[12] The parties settled this action pursuant to minutes of settlement dated November 26, 2024, for $47,500.

[13] Pursuant to the settlement, proceeds of $31,359.51 will be paid into court to the credit of the Minor Plaintiff. Plaintiffs’ counsel will be paid partial indemnity fees of $12,020.37 plus HST in the amount of $1,562.65 for fees and $2,557.47 in respect of disbursements.

Deficiencies in the Materials

[14] The materials filed on this motion are sparse, particularly given the nature of the allegations and the nature of the alleged injuries alleged.

Liability

[15] Although the plaintiffs say that Schoolboard Defendants have vigorously contested liability, there is no discussion of the particular litigation risk the plaintiffs faced and the aspects of the case that presented a problem for the plaintiffs in terms of liability.

[16] In that regard, the defendants have not contested a great deal of the Claim.

[17] The Schoolboard Defendants admit in their defence that they owed the Minor Plaintiff a duty of care while he was a student. They admit that they were in regular communication with T.S. and the Minor Plaintiff while he was a student and were aware of his learning profile. These defendants must have been aware that the Minor Plaintiff was being bullied because they plead that they “investigated and responded to bullying concerns that came to their attention.” They also admit that they did become aware of the video that was taken of the Minor Plaintiff “partially naked” in the school bathroom. Although these defendants plead that they disciplined these students, they do not say how.

[18] If the Schoolboard Defendants were aware of the bullying, and did not appropriately address it, then there is an argument that the bullying would escalate and that the incident that occurred was reasonably foreseeable.

[19] The Schoolboard Defendants also admit that the police investigated the matter, but the results of that investigation are not contained in the record.

[20] It is not clear on this record what defence the Student Defendants would have if they committed this act. They have not even delivered a defence. They are in default and there is no explanation as to why they have not been so noted.

Damages

[21] While settlement often involves a discount for litigation risk, it is also not clear on this record what the real measure of the Minor Plaintiff’s damages are before any discount for litigation risk.

[22] The plaintiffs did not provide any factum or reference any case law that would demonstrate that the settlement is fair and reasonable in terms of the quantum of damages.

[23] There is no explanation as to why the Minor Plaintiff has not seen a therapist or a physician. There is no medical assessment of any future consequences for him.

[24] There are no medical records or information from the Minor Plaintiff’s physician that show what his psychological state was before this incident compared to what was it afterwards or now. There is no evidence to document whether or not the Minor Plaintiff’s school performance suffered as alleged.

[25] The affidavit material also provides contradictory evidence. On the one hand it states that the student body is not aware of the video, but on the other hand states that the last time anyone mentioned the video to the Minor Plaintiff was three years ago.

[26] I refer the parties to the following cases with comparable circumstances where the court awarded significantly: Jane Doe 464533 v. N.D., 2016 ONSC 541; Jane Doe v. M.N., 2018 NLSC 162; G.M. v. X Tattoo Parlour, 2018 HRTO 20.

[27] Although a partial explanation for the settlement quantum appears to be that the Student Defendants are only 18 and have no resources to pay any damages, this is only a bald statement. There is no explanation at all as to any efforts to determine what resources these defendants might have now or in the future. They may eventually get jobs. The settlement does not even require them to provide an apology.

[28] If the settlement will only be paid by the Schoolboard Defendants, there is no explanation as to why the Student Defendants who perpetrated this act are being essentially let off the hook with a consent judgment where they will contribute nothing for such a serious incident.

[29] I direct that:

• The moving parties provide further and better materials to support this motion and which addresses all deficiencies set out in this endorsement. In particular:
  • They must provide a better picture of the impact of this incident on the Minor Plaintiff and the impact that this could have on his future. It is up to them to consider where that evidence should come from, whether it is better and more details from his mother who is his litigation guardian, his physician, an assessment, or even from him since he is now 17 years old.
  • They must provide information on the litigation risk they face, details as to who will be paying the judgment, and efforts they have made to ascertain the ability of the Student Defendants to pay a judgment now or in the future.
  • If the plaintiffs are saying that the quantum is lower because only the Schoolboard Defendants will be paying it, there is no explanation as to why the plaintiffs are releasing the Student Defendant from the action.
  • They must also provide a factum that provides an analysis of the case law to support the quantum taking into account the litigation risk.

[30] Given that this may require some further assessments, these additional submissions shall be provided within 60 days, failing which this motion will be dismissed. If the parties need more time, they may seek it.

Justice Anna Papageorgiou
Date: January 7, 2025