2023 QCCQ 2755, 2023 QCCQ 2755

Pettigrosso c. Autobus Groupe Séguin inc. 2023 QCCQ 2755 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-712690-207 DATE : May 4, 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ MADDALENA PETTIGROSSO in her capacity as tutor for Victoria Di Angelis Plaintiff c. AUTOBUS GROUPE SÉGUIN INC. and PETER HALL SCHOOL INC.

Defendants and INTACT ASSURANCE Voluntary intervener ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff claims, as tutor on behalf of Victoria De Angelis (hereinafter Victoria ) the damages for bodily and moral injury and punitive damages, following the physical assault by another student sustained in the school bus under the supervision of the Defendant Autobus Groupe Séguin Inc. ( AGS ). [ 2 ] The Plaintiff concludes that the bus driver, Charles William Adolphe, an employee of AGS, as well as the monitor, Serge-Alain Thomas, an employee of the Defendant Peter Hall School Inc. ( PHS ), were negligent in supervising the students in the bus and did not take the appropriate measures to limit the damages suffered by Victoria. [ 3 ] AGS denies that Victoria was assaulted by another student.

It adds that any injury suffered by Victoria, which was minor, resulted from her tripping and falling in the school bus. [ 4 ] PHS, in addition to denying any wrongdoing, denies any liability, as the students were riding a school bus, the property of AGS and they were under the supervision of the latter, as the monitor is an employee of AGS and not PHS. [ 5 ] Intact Assurance voluntarily intervened on behalf of the Defendant AGS.

THE CONTEXT [ 6 ] Victoria was at the time of the incident 19 years old, a person with special needs and a student at PHS, a private school offering educational services to students with special needs.

Since 2009, AGS assures the transport of PHS’s students. [ 7 ] Yannick Séguin, AGS’s representative, explains that the bus used to carry the students is a mini bus that has six seats and space at the back for wheelchairs [1] . [ 8 ] The students are usually the same, take the same bus from home to school and back, with Messer Adoph and Thomas. [ 9 ] The students are strapped in their seats by a seat belt or a belt across their thorax, depending on their needs.

[ 10 ] According to Victoria, Joshua, a fellow student, punctured her face with a pencil. [ 11 ] In the past, an incident occurred between Victoria and Joshua, when he scratched her and for this raison, Victoria and Joshua are in separated seats, Victoria on the left side next to the window and Joshua on the right side also next to a window. [ 12 ] Mr. Seguin explains that Joshua is autistic. As he previously tried to leave the bus while it was moving, he is strapped to his seat. He sits in his seat, does not move, or speak. [ 13 ] Mr.

Thomas adds that Joshua is a well-built man and had he hit Victoria, she probably would have fainted. [ 14 ] On the day of the incident, Mr. Thomas explains that he was seated at the back to calm a child and then moved to the front of the bus to take care of another child. He adds, that, when approaching Victoria’s grandmother’s house, Mr. Adolph told her to prepare to disembark. Mr. Thomas saw Victoria get up while the bus was still moving, but then fall, probably tripped in her backpack and hit her face on the third seat, right side of the bus. [ 15 ] Mr.

Adolph confirms that, after opening the door of the bus to let Victoria disembark, he was told by Mr. Thomas that Victoria had fallen. He saw Mr. Thomas immediately go to her, saw that she had a slight nosebleed. He put a tissue paper under her nose and the blood stopped. [ 16 ] Mr. Thomas disembarked the bus with Victoria and explained the situation to her grandmother. However, later on, he realized that the grandmother did not speak English or French, but only Italian. [ 17 ] He also, called Victoria’s mother to explain the situation. [ 18 ] Back at PHS, he wrote his report [2] .

An incident report was also filed with the SAAQ [3] . ANALYSIS [ 19 ] The Plaintiff cannot succeed in her claim for the following reasons. [ 20 ] In accordance with the principles outlined in

Article 2803 of the Civil Code of Québec , a person who asserts a right has the burden of proving the facts on which his claim is based. [ 21 ]

Article 2804 C.C.Q. provides that: 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 22 ] To succeed the Plaintiff must show, by preponderance of evidence, namely a clear and convincing proof [4] , the liability of the Defendants [5] and the prejudice suffered. [ 23 ] Several court decisions have explained what constitutes a preponderance of evidence, for example Michaud c. Import-Export R.V. inc. [6] : [66] Les justiciables ont le fardeau de prouver l'existence, la modification ou l'extinction d'un droit.

Les règles du fardeau de la preuve signifient l'obligation de convaincre, qui est également qualifiée de fardeau de persuasion. Il s'agit donc de l'obligation de produire dans les éléments de preuve une quantité et une qualité de preuve nécessaires à convaincre le Tribunal des allégations faites lors du procès. […] [68] La

partie demanderesse doit présenter au juge une preuve qui surpasse et domine celle de la

partie défenderesse. [69] La

partie qui assume le fardeau de la preuve doit démontrer que le fait litigieux est non seulement possible, mais probable. [70] La probabilité n'est pas seulement prouvée par une preuve directe, mais aussi par les circonstances et les inférences qu'il est raisonnablement possible d'en tirer. [Reproduction partielle] [ 24 ] As regards to PHS, it cannot bear any responsibly for transport of its students, while in the care of AGS’s employees. [ 25 ] As for AGS, the Court relies on the testimonies of Messer.

Adolphe and Thomas and concludes that the injuries sustained by Victoria, which were minor and would not justify an award in damages for bodily or moral injury, did not result from an assault by a fellow student, Joshua. [ 26 ] The Plaintiff relies on Victoria’s account of the events, whereas the Court heard the convincing testimony of those present, Messer.

Adolph and Thomas. [ 27 ] These testimonies are also corroborated by the nature of the injuries, which are inconsistent with the explanation provided by Victoria, and are consistent with a fall. [ 28 ] That being said and moreover, the Court concludes that the bodily injury of Victoria resulted from an automobile accident, not of the jurisdiction of this Court, but consists of a claim under the Automobile Insurance Act [7] . FOR THESE REASONS, THE COURT:

DISMISSES Plaintiff’s claim; WITH COST in the amount $156 representing the judicial stamp of the Contestation of the Defendant Autobus Groupe Seguin Inc.; WITH COST in the amount of $317 representing the judicial stamp of the Contestation of Peter Hall School Inc. ________________________ DIANE QUENNEVILLE, J.C.Q. [4] F.H. c. McDougall, 2008 SCC 53 .