Neutral Citation: 1999 ONFSCDRS 259

FSCO A98-001354

BETWEEN:

LILLIAN CAMPBELL

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

Shari L. Novick

Heard:

August 23, 24 and 25, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tom David for Mrs. Campbell

Francine Rogovein for TTC Insurance Company Limited

The Applicant, Lillian Campbell, alleges that she was injured on July 19, 1996 when the TTC bus that she was travelling on collided with another vehicle. She applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC has not paid any benefits, on the grounds that it has no record of any accident having taken place at the location and on the date alleged by the Applicant. The parties were unable to resolve their disputes through mediation, and Mrs. Campbell applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The TTC agrees that if I find that an accident took place as alleged by Mrs. Campbell, she would be entitled to "other disability benefits" under section 19 of the Schedule in the amount of $185 per week for two years, and to the amount of $1,800 for rehabilitation expenses incurred.

The sole issue in this hearing therefore is:

Was Mrs. Campbell involved in a motor vehicle accident while travelling on a TTC bus on July 19, 1996?

Mrs. Campbell was not involved in a motor vehicle accident while travelling on a TTC bus on July 19, 1996.

Introduction:

Lillian Campbell alleges that she suffered injuries to her knee and to her wrist when the TTC bus she was travelling on collided with another vehicle on July 19, 1996.

At the time of the hearing Mrs. Campbell was suffering from the late stages of cancer and was unable to attend at the Commission to give evidence. The hearing was convened at her home, to permit her to testify about her recollection of the relevant facts surrounding the alleged accident. It was clear that Mrs. Campbell was in acute distress. While she was relatively coherent throughout most of her testimony, I was advised that she was receiving regular doses of morphine. She had difficulty remaining lucid at times. Unfortunately, Mrs. Campbell died a few weeks after the hearing was completed. Her evidence must be considered in light of her medical condition at the time of the hearing.

After hearing Mrs. Campbell's evidence, the Insurer called five witnesses who testified about the various systems in place at the TTC to gather and record information about accidents involving their vehicles. I will outline their evidence further on in this decision.

The TTC also filed various documents and reports at the hearing. These indicated that Mrs. Campbell had been involved in another motor vehicle accident in May of 1996 near St. Clair Avenue and Old Weston Road. The TTC was not involved in this incident, but it was witnessed by a TTC operator. The Applicant requested the operator's assistance with this matter and was asked by the TTC to sign an undertaking that she would not involve them in any proceeding she brought as a result of the incident. By the time her counsel responded on her behalf to this request, the incident that forms the subject matter of this dispute had allegedly taken place.

The dates and details of these two alleged incidents became confused. When a TTC claims adjuster requested to meet Mrs. Campbell to determine the details of the later incident, her counsel advised that he would not permit anyone from the TTC to meet with his client. A questionnaire soliciting the details of the accident was then sent to the Applicant by the TTC, but was not returned for two years. When the document was finally returned it alleged that the accident had occurred on July 23, 1996, whereas the Application for Accident Benefits previously filed indicated a date of July 21, 1996. It was only in June of 1999, almost three years after the fact and two months prior to this hearing, that the date of the alleged accident was clarified by Applicant's counsel to be July 19, 1996.

Applicant's evidence:

Mrs. Campbell alleged that the accident occurred when she was on her way home from a doctor's apppointment in the east end of the city. She stated that she got onto a TTC vehicle at Greenwood Avenue, got out to do some shopping along the way and then got back onto a streetcar heading west along Queen Street, in the direction of her home. She recalled that she and the other passengers were told to leave the streetcar and transfer onto a bus at the corner of Queen and Victoria Streets, just east of Yonge Street, due to repairs being effected on the streetcar tracks.

Mrs. Campbell testified that she heard a "bang" and felt an impact shortly after getting onto the bus, as it approached the overpass on Queen Street between The Bay store and the Eaton Center, just west of Yonge Street. She stated that the bus was very crowded and that the passengers standing close to her fell on top of her as a result of the impact, causing her to injure her knee and wrist. She recalled that the incident had occurred in the late afternoon, on a weekend.

Mrs. Campbell testified that she had told both the driver of the bus and the driver of the other vehicle that she was injured, and that she gave the TTC operator her name, address and phone number. She testified that she was in pain and could hardly walk because she had hurt her knee, and that the driver had to help her down the stairs of the bus. She recalled that the driver had noted the bus number on a piece of paper and provided it to her, and that she had passed it on to her counsel.

When asked how she had travelled home from the accident scene, Mrs. Campbell could not recall whether she had taken a bus or a taxi. She was then asked whether she had sought any medical attention for her injuries, and responded that she had travelled back to her doctor's office after the accident had occurred, but that the doctor was no longer there by the time she arrived.

The doctor's records indicate that the Applicant consulted her on July 23, 1996, at which time she reported that she had been involved in an accident on a TTC vehicle a few days earlier.

While Mrs. Campbell seemed to recall certain details of the alleged accident quite clearly, there are various aspects of her evidence that cause me to question the accuracy of her testimony. Firstly, whereas she testified that the alleged accident occurred on a weekend, counsel agreed that July 19, 1996 was a Friday. While this may seem like an insignificant detail, I note that traffic patterns in the late afternoon would differ significantly in that part of the city on Fridays and Saturdays.

Further, while Mrs. Campbell said that she could barely walk after the accident due to pain she felt in her knee, she stated under cross-examination that she had travelled back to her doctor's office, located in the east end of the city. It seems unlikely that someone in that condition would attempt to travel any distance, unless they were being transported by ambulance. I also note that the Applicant only mentioned that she had gone to see her doctor after being asked in cross-examination whether she had sought medical attention after the accident, and had not offered that fact when she was initially asked how she had travelled home after the accident.

Mrs. Campbell also testified that the TTC operator gave her a piece of paper which indicated the vehicle number of the bus involved in the collision, which she had passed on to her counsel. Mr. David, her counsel, advised that the paper indicated vehicle #8240. As will be discussed more fully below, there is compelling evidence indicating that that bus was operating across town during the period in question, and could not have been near the intersection of Queen and Yonge Streets during the time at which the alleged accident took place.

Finally, the route that the Applicant described travelling prior to the accident does not make sense. Mrs. Campbell lived in the west end of the city. She stated that she had stopped on the way home from her doctor's office in the east end to do some shopping before getting back onto the streetcar, heading west. When questioned about where she had done her shopping, she stated that she had stopped to buy some fruits and vegetables at the stores along Dundas Street near Spadina Avenue. I note that the intersection of Dundas and Spadina is significantly west of the intersection of Queen and Yonge Streets, where Mrs. Campbell alleged that the accident occurred. If she had been travelling from Dundas and Spadina to Queen and Yonge, she would have been proceeding eastbound as opposed to westbound. It would not make sense for Mrs. Campbell, who lived in the west end of the city and claimed to be heading home, to have travelled in this manner.

TTC's evidence:

I heard the evidence of five TTC employees, who described the systems in place within the organization to record and communicate information regarding accidents involving TTC vehicles.

The evidence disclosed the following facts: Each TTC vehicle is equipped with a two-way radio unit that is linked to a system-wide internal communications system. Each of these units has a yellow emergency button, which the operator is required to press in the event of an accident or other emergency. When the emergency button is pressed a flashing light appears on the screen of a supervisor's console, along with an audible alert tone. A supervisor observing this light then advises a TTC inspector, the police, and an ambulance, if necessary, that an incident has occurred. When a TTC vehicle is involved in a collision, an inspector from the TTC and the police typically attend at the scene to investigate. The inspector is required to file a report setting out the details of the accident, which is subsequently forwarded to the Claims department. Police officers who attend at an accident scene typically complete a report, including the details of the accident.

The evidence indicated that the two-way radio units, called "CIS units," have a cellular fallback system such that if the yellow button is pressed and the emergency system fails, the radio will automatically operate on the cellular network.

A TTC operator involved in an accident while operating a vehicle is required to record the accident details in a memo book kept on the vehicle, and to complete an "occurrence report" from these notes at the end of his or her shift, at the division office. The evidence indicated that some importance is attached to the completion of an occurrence report. After being filed by the operator involved, the report is checked by the stenographer or clerk at the division, who then sends it by fax to the Claims department. Copies are made and filed in various places within the organization. Mario Barone, a clerk who works out of the Roncesvalles division offices (the division from which streetcars travelling westbound along Queen Street operate) testified that occurrence reports are treated like "holy documents" and are closely kept track of, adding that he did not know of any such reports being lost during the twelve years he has been employed at the TTC.

Any operator who completes an occurrence report is interviewed by the superintendent of the division. The superintendent then completes a separate report and sends it to the Claims department along with the original occurrence report. The clerical staff in that department review the occurrence reports received on a daily basis. The reports are then provided to a supervisor to review, after which the details are inputted into the computer.

The "surface log" is another document in which information about accidents involving TTC vehicles is recorded. Any incidents reported by operators through the CIS radio units are automatically entered into this log, which includes details such as the time of the accident, whether charges were laid against the TTC operator or the driver of another vehicle, whether any injuries were reported, and whether the incident caused a delay in service. Entries are listed by the date of occurrence, and while this log is maintained by the Transportation department at the TTC, copies are provided to the superintendent of each division as well as to the Claims department.

The claims adjuster assigned to investigate Mrs. Campbell's claim, as well as other TTC witnesses, testified that there was no record of an occurrence report having been completed that matched the details of the accident alleged by the Applicant. There was also no record of a supervisor's report relating to such an incident having been forwarded to the Claims department.

The TTC filed two separate documents containing a summary of occurrence reports filed at the Roncesvalles division during the relevant time. The first one covers the period between July 22 and August 11, 1996, and was generated at the point in the process when the Applicant alleged that the accident had occurred on July 23, 1996. It does not contain any reference to the accident alleged. When the July 19, 1996 date was provided at a later point, a further search was conducted which resulted in a summary list being provided of occurrence reports filed between July 18 to July 22, 1996. It also contains no reference to the accident alleged.

The evidence indicated that there were no entries in the "surface log" that matched the details provided by Mrs. Campbell, suggesting that the emergency button on the CIS radio in the vehicle had not been activated. The CIS system would also generate a record in the event of a delay in service, and the witnesses advised that no such record existed for the time and location alleged.

Mr. Mitchell, the claims adjuster, conceded under cross-examination that if the operator of a vehicle involved in an accident had neither pressed the emergency button on the CIS system nor completed an occurrence report after his shift was over, there would not likely be any record of the incident at the TTC. He stated, however, that in the scenario alleged by Mrs. Campbell, the police would have been summoned and there would therefore be a police report of the incident. Mrs. Campbell's name does appear on some of the documents filed by the TTC. An examination of the many "claim status reports" of incidents that occurred in July of 1996 revealed a report indicating that Mrs. Campbell had suffered an on-board injury while on a bus at St. Clair Avenue and Old Weston Road, at 5:45 p.m. on July 23, 1996. A computer-generated listing of occurrences for July of 1996 also includes a reference to Mrs. Campbell having been involved in an occurrence at St. Clair and Old Weston Road. As opposed to corroborating her evidence about the alleged accident, I find that these documents reflect the confusion that has surrounded this matter from the outset, combining details of the incident in May of 1996 when a TTC operator witnessed an incident in which the Applicant sustained injuries after exiting from a TTC vehicle with the facts alleged in this hearing regarding a collision near Queen and Yonge streets.

Finally, Todd Ziegler, a systems analyst with the TTC, explained how the movement of TTC vehicles is monitored as they proceed along their various routes. He testified that "signposts" containing transmitters are placed at various intervals on the roadways along each route. These transmitters emit a signal that passing TTC vehicles read, which allows the progress of the vehicle along the route to be tracked. Mr. Ziegler filed a computer-generated report which tracked the movement of vehicle #8240, the bus alleged by the Applicant to have been involved in the collision, from approximately 5:30 to 6:30 p.m. on July 19, 1996. The report indicates that this vehicle was travelling along Dundas Street West near Royal York Road, in the west end of the city, at 5:45 p.m. on July 19, the approximate time that the Applicant alleges it was involved in a collision at Queen and Yonge Streets.

Mr. Ziegler also filed a report comprised of data received from all TTC vehicles that passed the signposts on Queen Street nearest to its intersection with Yonge Street between 5:30 and 6:30 p.m. on July 19, 1996. The report indicates that several streetcars, but no buses, passed along this route during that time, and that there was no delay in service. The report also indicates that one vehicle heading westbound on Queen Street passed the intersection of Queen and Dalhousie Street (just east of Church), but then turned south onto Church Street instead of continuing westbound along Queen Street. The data in the report did not indicate why that vehicle had been diverted.

Findings:

After considering all of the evidence as well as the parties' submissions in this matter, I find that Mrs. Campbell was not injured as a result of a collision between a TTC bus and another vehicle on July 19, 1996 as alleged, and is therefore not entitled to the benefits claimed.

While Mrs. Campbell clearly seemed to believe that such an accident had occurred, I am persuaded by the evidence amassed by the TTC that it could not have taken place at the location alleged, on the date and time asserted by the Applicant. The evidence clearly shows that there are various systems in place to both record and communicate information regarding accidents involving TTC vehicles within that organization. While I agree with Applicant's counsel's submission that there may be occasional flaws in these systems and that some of the reports filed may be unreliable or based on incorrect information, I am not prepared to accept that every system and safeguard in place at the TTC to keep track of accidents was flawed or malfunctioning on the day in question.

The lack of any occurrence report for the incident, coupled with the fact that there is no record of the alleged accident in the "surface log" indicates that the operator allegedly involved decided not to report the incident, and that the emergency button on the CIS unit in the vehicle was not activated. While it is theoretically possible that this could have occurred, the likelihood that a collision as was described by the Applicant would have gone unnoticed at Queen and Yonge Streets in the midst of a Friday afternoon rush hour is slim. Given the serious breach of policy that failing to report such an incident would have constituted, a driver choosing to do so would be taking a significant risk. And, as Mr. Mitchell stated, an accident at that location resulting in injuries to patrons and causing a delay in service would have undoubtedly attracted the police, who would have filed some type of report. In the circumstances, I am not persuaded that the TTC's lack of records relating to the alleged accident results from the operator's failure to report the incident.

While there is some evidence pointing to the Applicant having been involved in an accident, such as her reporting to her doctor on July 23, 1996 that she had been injured while travelling on a TTC vehicle a few days earlier, and the fact that she completed an Application for Accident Benefits within a month after the incident, I am ultimately persuaded by Mr. Ziegler's evidence that it is simply not possible for the accident to have occurred at the time and location alleged. The data read from the signposts along Queen Street at the relevant time prove three key facts — that vehicle #8240 did not travel along that route, that only streetcars and no buses travelled westbound from Queen and Church Streets, and that there was no delay in the usual rate of service. Even if the wrong vehicle number was provided, I am simply unable to reconcile the Applicant's evidence with the last two facts. On that basis I conclude that the accident could not have occurred at the time and the location alleged.

It is trite to say that the Applicant bears the onus in a case of this type to prove on a "preponderance of evidence" or a "balance of probability"² that she was injured in an accident. This includes, in my view, the obligation to provide basic details such as the correct date and the location of the incident. Mrs. Campbell has not done so in this case, and while it may seem harsh to dismiss her claim in view of the possibility that her medical condition at the time of the hearing may have prevented her from recalling these details in a clear way, I note that the TTC's efforts to obtain these details shortly after the alleged accident were met with resistance from the Applicant. In the circumstances, I am bound to consider the evidence she provided at the hearing against the above standard, and on that basis, I must dismiss her claim.

EXPENSES:

I heard no submissions from the parties regarding expenses at the hearing. If counsel cannot resolve this issue among themselves, I can be spoken to with regard to expenses.

December 29, 1999

Shari Novick

Arbitrator

Date