Neutral Citation: 2004 ONFSCDRS 10

FSCO A03-000002

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DEBORAH WOOTTON

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

John Wilson

Heard:

November 12, and 13, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Thomas Wolf Zwiebel for Ms. Wootton

Gustavo Garrido for TTC Insurance Company Limited

Issues:

The Applicant, Deborah Wootton, claimed to have been injured in a motor vehicle accident on December 7, 2000. She applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Wootton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this arbitration are:

Did Ms. Wootton suffer an impairment as a result of an "accident" as defined in section 2 of the Schedule?

If so, is Ms. Wootton entitled to receive a weekly income replacement benefit ("IRB") ongoing from December 14, 2000, claimed pursuant to section 4 of the Schedule?

What is the amount of weekly income replacement benefit that Ms. Wootton is entitled to receive pursuant to section 6 of the Schedule? The Applicant claims a weekly IRB of $400.
Is Ms. Wootton entitled to payment of a medical benefit for treatment received from Focus Physiotherapy, in the amount of $5,181, claimed pursuant to section 14 of the Schedule?
Is Ms. Wootton entitled to attendant care benefits in the amount of $1,023.62 a month from February 8, 2001 to December 7, 2002, claimed pursuant to section 16 of the Schedule?
Is either party liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Wootton entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

The hearing, which took place on November 12 and 13, 2003, dealt only with the preliminary issue of whether the events leading up to Ms. Wootton's injuries constituted an accident for the purposes of the Schedule. The balance of the issues will be heard, if necessary, at a later date.

Result:

Ms. Wootton suffered an impairment arising from an "accident" as defined by section 2 of the Schedule.

Background:

The parties are in agreement, for the purposes of this preliminary issue, that Ms. Wootton was injured on December 7, 2000, at the Sunnybrook site of Sunnybrook and Women's College Health Centre, and that her injuries were of a serious nature. There is also little disagreement, as well, that the incidents leading to Ms. Wootton's injuries took place in the area of the bus pickup zone in front of the hospital.

The parties also agreed, procedurally, that the first portion of this bifurcated hearing would be treated as a preliminary issue hearing, with the Insurer having the onus of proof that Ms. Wootton was not involved in an accident as defined by the Schedule.

Ms. Wootton claims that she stumbled and fell while changing buses at the platform and attempting to board a second bus. She further claims that, as a result, any injuries she suffered were arising from the use of a motor vehicle, in this case a bus, operated by the TTC.

The TTC maintains that, however her injuries were occasioned, she was not injured boarding a bus at Sunnybrook. They also claim that, even if a bus was in some way implicated in her injuries, any connection would be too tenuous to support a claim for accident benefits pursuant to the Schedule.

The ultimate question in this matter is whether the circumstances surrounding Ms. Wootton's injuries constituted an accident.

The Law:

The causation test as a pre-condition for accident benefits has a varied legislative history. The most recent versions of the Schedule have changed the definition of an accident from that of an incident which either directly or indirectly causes a named impairment to that of one that directly causes the impairment. Needless to say, this legislative revision has precipitated much discussion about its ultimate meaning.

Section 2 (1) of the current Schedule defines "accident" as:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

There has been much argument in courts and arbitration hearings over what constitutes the use or operation of a vehicle in this context, as well as the question of causal linkage to such usage.

Earlier on it was generally accepted that entitlement could arise as long as the activity giving rise to the impairment took place in the general context of the general use of a motor vehicle given some sort of causal relationship between the use of the motor vehicle and the impairment. Courts and arbitrators in Ontario drew inspiration from the case of Amos v. Insurance Corporation of British Columbia, (1995)1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618, in which the Supreme Court of Canada dealt with the question of the use or operation of a motor vehicle.

Although Amos involved a different statutory insurance scheme², the test enunciated by the Supreme Court was adopted in Ontario. At FSCO, Director's Delegate Draper in Hanlon and Guarantee Company of North America³ endorsed the two-pronged test in Amos:

Did the accident result from the ordinary and well-known activities to which automobiles are put?
Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

More recently, the Court of Appeal has re-examined the wording used in section 2 of the Schedule, in the context of the Ontario accident benefit scheme.⁴ Much of this re-examination turns on the restriction of causation in the current Schedule to the use or operation of a motor vehicle that directly causes an impairment.

The net effect of these decisions has been to direct the focus of the analysis back to an older concept of causation, something more akin to proximate cause than the Amos test. As Laskin J.A. noted in Chisholm (supra):

...the stringent causation requirement -"directly causes"- in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition.

He continued:

Here, in a broad sense, one could say that the use or operation of the car Chisholm was driving was a factual cause of his injuries. As he argued, but for driving his car he would not have been shot. Legal entitlement to accident benefits, however, requires not just that the use or operation be a cause of the injuries but that it be a direct cause.

A direct causation requirement conjures up memories of the famous English tort case of In Re Polemis & Furness Withy & Co. Ltd. [ 1920] All E. R. Rep. 40, [1921] 3 K.B. 560, where recovery was allowed for damages that were not a foreseeable result of the defendant's negligence but were directly caused by it. When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.

In Greenhalgh v. ING Halifax Insurance Co. [2003] O.J. No. 2740, Kiteley J. examined the Chisholm decision in the context of the jurisprudence from other provinces and FSCO arbitrations, and found that the principles of causation enunciated by Director's Delegate Makepeace in Seale and Belair Insurance Company Inc.⁵ best summarized the current judicial consensus:

In my view, these factors - time, proximity, activity and risk - are important in defining the incident that resulted in injury. It is clear that "direct cause" need not be the only cause, that physical contact with an automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is "part of the ordinary course of things."

I find that Kiteley J.'s adoption of the interpretation put forward by Director's Delegate Makepeace to be a sound restatement of the current state of the law in Ontario, and binding on me as an arbitrator.

Analysis:

In Ms. Wootton's case, the question comes down to whether or not an interaction with a TTC bus directly caused her injuries and precipitated her subsequent disabilities.

If Ms. Wootton merely had an unfortunate "slip and fall" while walking on a sidewalk at Sunnybrook, then however serious her injuries and consequent disabilities, she would not be eligible for accident benefits payable by the TTC pursuant to the Schedule.

Not surprisingly, much of the evidence led by both parties related to the potential interaction between Ms. Wootton and one or more of the TTC buses present at Sunnybrook.

Ms. Wootton's recollection of the incident is that she arrived by bus at Sunnybrook and was in the process of transferring onto a second TTC bus to continue her journey when she fell, dislocating her shoulder and fracturing her proximal humerus.

In a statement given some months later to a TTC investigator, she recalled:

I was going to get on the #11 Davisville Bus which pulled in front. I did not get either bus number. I do recall the driver of the 124 was a white male. I think he had dark hair and glasses. He was possibly in his mid to late 40's. I went to enter the #11 bus at (the) front door. A group of people got on before me. I was the last to try and board the bus. I reached up with my left arm. The door closed. I went to bang on the door. There was no-one on the steps. The bus pulled away. I lost my balance and fell. I fell on to my left side and face. I could hear people yell. The bus had travelled only a foot or so.

Ms. Wootton went or was escorted to the hospital where she was assessed by staff in the emergency department and later seen by the fracture clinic. The emergency department triage form completed at the time of her treatment contains the notation "fell running to bus".

Ms. Wootton testified on her own behalf as well. Her testimony mirrored the general outline of events recorded in her earlier statement to the TTC. She reiterated that she left the #124 bus to board the #11 bus to complete her trip to the Granite Club. The doors of the bus closed as she tried to board the #11 bus. She banged on the door as the bus began to move and then fell to the ground, landing on her left side.

It was evident from Ms. Wootton's testimony and from the medical reports filed, that she was immediately in great pain following her fall. The emergency report lists "pain-immediate onset, most severe in shoulder but pain throughout arm." She had of course suffered a four part fracture described by Dr. Axelrode, the consulting surgeon, as "significant."

I accept that pain and the shock of the fall and the fractures may well have clouded Ms. Wootton's perception and recollection of the events of that morning.

To Ms. Wootton, she was engaged in a single journey by bus from the subway to the Granite Club, a journey that entailed a rapid change of bus at Sunnybrook, when she fell and was injured during the process of changing buses.

The TTC views Ms. Wootton's connection with the bus at the time of her fall as being somewhat more remote. While Ms. Wootton clearly slipped and fell, with serious consequences, it had no record of such an accident from any of its drivers on the Sunnybrook route that day and, indeed, no communication from Ms. Wootton until January 24, 2001, almost six weeks post-accident. It took the position that the accident could not have happened as described by Ms. Wootton.

When the TTC did receive notice of the incident, it launched an investigation into the report. Ms. Marianne Boccongello, who testified on behalf of the TTC, stated that the standard protocol was to meet the people involved, get a statement, and consult the delay logs for the service in question.

It was evident, however, from Ms. Boccongello's testimony that the TTC viewed any deviation from the normal accident pattern as a potential cause for suspicion. In this case, the late reporting of the accident, combined with the lack of an accident report by any drivers on the Sunnybrook route, clearly raised the level of suspicion.

Ms. Boccongello stated that the TTC relied specifically on the details of Ms. Wootton's statement made some months after the accident to guide its investigations. As an example, Ms. Wootton believed at the time of her statement that the person who had helped her into the hospital was the driver of the bus she was attempting to board. Consequently, it tried to match the description of that person with the profiles of drivers on that route on the morning of December 7. It made no effort to cross-check with other TTC personnel who might have been on the scene, including the potential drivers of the #124 bus from which Ms. Wootton had just disembarked, who would have likely been in a position to view the incident.

The lack of a match among the drivers of the buses on the #11 route reinforced the investigator's suspicions that the accident may not have had any connection with a TTC bus. Ms. Boccongello also mentioned the lack of corroborating evidence of a TTC connection, such as a transfer issued that morning, raised doubts.

In cross-examination, Ms. Wootton stated that the statement given to the TTC was true to the best of her recollection, and that she had assumed that the person who assisted her was the operator of the bus, perhaps because of the way he was dressed. She also corrected the impression that the person assisting her at the outset must have remained with her until she reached the emergency ward.

In her testimony she also mentioned that she was still on pain medication when she made the statement to the TTC investigator and implied that this may have affected her recollection in some way.

From her cross-examination, it is clear that many of the observations contained in the February 2001 statement were based on her attempt to reconstruct the incident retrospectively. Such assumptions included the identity of the person assisting her after her fall, the source of the information received by the triage nurse at Sunnybrook, and the sequence of events that led her to the fracture clinic where she was treated.

Although these were not meant to mislead the TTC investigation, they had the unfortunate effect of de-railing Ms. Wootton's accident benefit claim. Not being able to find a match for the driver of her description on the bus she identified, nor a delay consistent with a driver taking her to the emergency room and waiting for her to be admitted, the TTC simply assumed, in turn, that the accident had nothing to do with it.⁶

I found Ms. Wootton's own testimony to be credible with regard to the details of the accident itself. She was a reflective witness, willing to concede her lack of certainty on any particular point where she had doubt, and sticking to the essentials of her evidence, even under cross-examination.⁷

While some of the precise details of the period immediately following the accident may remain murky and subject to revision, I find Ms. Wootton's recall of the incidents leading up to the accident to be both plausible and credible.

Since the TTC did not accept Ms. Wootton's evidence, it replied with the theory that she was involved in a simple slip and fall, unrelated to the operation of their buses. It adduced some documentary evidence, including lists of the times its buses passed an electronic signpost at Bayview, schedules, run lists, and the statements of some of its drivers in support of its submission that a driver of the #11 bus was unlikely to have been the person assisting Ms. Wootton into the hospital. The presumed intent of this evidence was to discredit Ms. Wootton's story and to cast doubt on her reliability as a witness. Assuming that the run documents filed are accurate, and the identity of the drivers listed is correct, I accept that it was unlikely that it was a #11 bus driver who assisted Ms. Wootton, either to the hospital or the emergency room.⁸

Given that there were drivers scheduled that day on the #124 bus who were not interviewed by the TTC, and who apparently may have fit the general description given by Ms. Wootton, I cannot agree, however, with the TTC that her story of a "good samaritan" wearing a TTC uniform is either improbable or impossible.

Although Ms. Wootton has the overall burden of proving her claim, in this matter, the TTC has accepted, and its counsel confirmed at the hearing that it has the burden of proving that Ms. Wootton was not injured in a motor vehicle accident, as defined by the Schedule.

Even if the TTC had not expressly conceded this point, I would accept that the "tactical burden" on this issue had shifted to the TTC.

The TTC tendered some evidence relating to its internal operations - schedules, logs and driver identification for the #11 buses that served Sunnybrook the morning of the accident. It had, as well, presumably, the same data related to the #124 bus, but did not trouble to provide it at the hearing.

It asserted, however, that the data related to the #11 bus proved that the elements of Ms. Wootton's story relating to the TTC connection were false.

To quote Viscount Dunedin in Robins v. National Trust 1927 CanLII 469 (UK JCPC), [1927] A.C. 515, "Onus is always on a person who asserts a proposition or fact which is not self-evident."

As noted, it was the TTC's evidence that it keeps detailed records on all its buses and drivers, and logs their location and timing on a consistent basis. There is no reason to believe that the #124 bus was somehow exempt from this documentation.

Where matters are in the particular knowledge of another, and the claimant has adduced positive evidence, the defendant risks an adverse inference in the absence of evidence to the contrary.

Sopinka J., although preferring an analysis based on inference rather than "burden of proof," agreed with the ultimate effect in Farrell v. Snell 1990 CanLII 70 (SCC), [1990] 2 S.C.R., 311, a decision of the Supreme Court of Canada:

In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.

This accords with the dictum of Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

I have little doubt that the evidence of the timing and placement of all of the TTC buses, and the identity of their drivers was within the power of the TTC to produce. This they have not done.

Lord Mansfield's dictum has been interpreted by a long line of decisions recognizing what has been termed as a shifting of the secondary, or evidential burden of proof. This has been also referred to by some commentators as a tactical shifting of the burden of proof. While it may no longer be fashionable to refer to shifting burdens,⁹ in certain circumstances an adjudicator may draw an inference from the failure of a party to respond to evidence adduced at a hearing. In this case, it may well be appropriate to draw such an inference from the TTC's failure to provide the documentation on the #124 bus and its drivers.

I find that, in light of Ms. Wootton's credible testimony, she provided cogent evidence that she was involved in an incident while changing buses at Sunnybrook, testimony that was corroborated to some degree by the information included in the hospital notes of her examination, and the timing of her admission.

I do not accept the TTC's assertion that the change of buses at Sunnybrook constituted a round-about and improbable way of reaching her place of employment at the Granite Club, further north on Bayview. Nor do I accept that their evidence of the timing of the #11 bus, and the identity of the individual drivers on that route means that someone appearing to Ms. Wootton to resemble a TTC driver could not have assisted her to the front doors of the hospital without creating a significant delay in the timings of buses past the electronic checkpoint on Bayview.

Having found that Ms. Wootton is a credible witness, that her story of the fall at Sunnybrook has the ring of truth, and that she has demonstrated, on the balance of probabilities, a linkage between her fall and the presence of TTC buses, there remains the issue of whether the peculiar facts of her incident constituted an accident as defined by the Schedule.

Accepting Ms. Wootton's account that she was effecting an immediate transfer between two buses owned by the TTC as part of a single trip to her workplace at the Granite Club, it is useful to examine her fall in the context of the criteria identified by Arbitrator Makepeace: time, proximity, activity and risk.

Ms. Wootton testified that she disembarked from the first bus and moved briskly towards the second bus, which was in front of the other bus. In time, the process could not have taken much more than a minute. She was in proximity to both buses, and apparently touching the door of the second bus as it closed and the bus pulled away.

The activity of changing buses and making connections forms a necessary part of the normal use of a bus system and, on her evidence, was necessary for a timely arrival at her workplace.

Given the numbers of people in a hurry carried by transit systems, it is likely that falls and other mishaps when boarding and disembarking buses are an unfortunate part of the normal risks of bus transportation, an observation that may, indeed be corroborated anecdotally by the incidence of arbitrations involving the TTC at FSCO.

Nor is there any evidence of any intervening act or the action of a third party to break the chain of causation. As Middleton J.A. commented on Re Polemis (supra) in Harding v. Edwards 1929 CanLII 394 (ON SCAD), 64 O.L.R. 98:

The causal connection in the Polemis case was clearly shewn, but the dammnum would not have resulted had there not been a most extraordinary and unforeseeable concurrence of contributing factors. None of these factors in that case was the conscious intervention of a third party.

As noted earlier, there is no evidence of an intervening act, conscious or otherwise, that interrupted or changed the characterization of Ms. Wootton's activity from a transfer that was a direct part of her bus trip to something else. She made no digression to mail a letter, or pick up a cup of coffee. Rather she went directly from one bus to another as part of her single trip to her workplace.

I find, therefore, that an injury incurred as part of the direct transfer between two buses forms part of the bus trip and a disability arising from such an injury arises directly from the normal use or operation of a motor vehicle (the buses).

Even if it were to be found that the disembarkation from the first bus somehow broke the chain of causation, I find that Ms. Wootton's evidence that she was actively attempting to board the second bus and, indeed, was touching the bus¹⁰ as she fell, demonstrates a close enough connection to the TTC bus to trigger an accident benefit claim.

I find therefore that an incident in which the use or operation of an automobile directly cause(d) an impairment took place the morning of December 7 Ms Wootton sustained her injuries as a result of an accident.

The parties should contact the Commission to set further hearing dates for these matters if they are unable to agree on the disposition of the remaining issues in this bifurcated matter. Should this neither be resolved, nor further dates set within 60 days of the issuance of this decision, the Commission may proceed to set dates for the balance of the hearing.

EXPENSES:

I will reserve the issue of expenses to the final decision in this matter.

January 15, 2004

John Wilson Arbitrator

Date