Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 152

FSCO A03-000002

BETWEEN:

DEBORAH WOOTTON

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David Leitch

Heard:

August 24 and 25, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Thomas W. Zwiebel for Ms. Wootton

Norma Priday for TTC Insurance Company Limited

Issues:

The Applicant, Deborah Wootton, submitted an Application for Accident Benefits to TTC Insurance Company Limited (the TTC Ins. Co.) as a result of injuries she sustained on December 7, 2000. The TTC Ins. Co. denied the Application on the ground that Ms. Wootton was not injured in an "accident" as defined by section 2(1) of the Schedule.¹ The parties were unable to resolve this dispute 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 preliminary issue was:

1. Was Ms. Wootton injured in an "accident" as defined in section 2(1) of the Schedule?

Result:

1. Ms. Wootton was injured in an "accident" as defined in section 2(1) of the Schedule.

Ms. Wootton's evidence at the hearing about how she was injured and assisted to the Sunnybrook Hospital

Ms. Wootton testified at the hearing that in December 2000, she was living in the High Park area of the City of Toronto and was working as a hair colourist at the Granite Club located on Bayview Avenue, north of Lawrence Avenue, also in the City of Toronto. She was 51 years old and had been working for the Granite Club for three years. Since she did not drive, she commuted to work on the public transit system operated by the Toronto Transit Commission (the TTC). She boarded a streetcar near her residence, transferred to the subway at the Dundas West subway station, travelled by subway to one of two alternate subway stations, Davisville or Lawrence, and then took one of two alternate buses, a route 11 which went directly to a stop on Bayview Avenue in front of the Granite Club, or a route 124 bus, which went to Sunnybrook Hospital where she could, with a transfer, board a route 11 bus and proceed north on Bayview Avenue to the Granite Club.

As to the particular events of December 7, 2000, Ms. Wootton's evidence at the hearing was as follows.

Her normal start time was 9:00 a.m. She had wanted to be at work early that day. She got off the subway at the Davisville station. Having missed a route 11 bus, she took a route 124 bus from the Davisville station to Sunnybrook Hospital. The weather was "a bit snowy" with a "light dusting" on the ground but was otherwise "like any other day." The route 124 bus arrived at Sunnybrook Hospital at about 8:30 a.m. She was still on the route 124, preparing to disembark, when a route 11 bus pulled in directly in front of the route 124 bus. Both bus stops were near the entrance to the Sunnybrook Hospital as shown in a photograph produced to Ms. Wootton.² It was a busy morning and other passengers ahead of her started to board the route 11 bus. She followed them, transfer in hand.³ She would have been the last person to board the route 11 bus. There was no reason for her to run and she did not run. Even if she had missed that bus, she would have caught the next one and not been late for work. When she arrived at the front door of the bus, the door closed. She banged on the door with her left arm to get the driver's attention but, as she hit the door another time with her left arm, the bus pulled away with her left arm still touching it and she lost her balance and fell to the left onto her left side and face. Passengers on the bus began yelling "a lady fell, a lady fell" and the bus stopped. When she started to get up, she realized that her left arm "was not there" but was instead above and behind her head. She noticed a person on the steps of the bus whom she assumed to be the driver of the bus because he was wearing gray pants and a burgundy jacket, the colours of the TTC employees' clothing. At first, he just looked at her sprawled on the ground but he then got off the bus and helped her up. He suggested she go into the emergency department of the Sunnybrook Hospital. He then accompanied her into the emergency department of the Sunnybrook Hospital, helped her take off her coat, spoke to someone in the reception area and got her a wheelchair. After asking whether he could do anything else for her, he left without providing his name and she could no longer describe him.

Sunnybrook Hospital records and the evidence of the triage nurse

The first person Ms. Wootton spoke to in the emergency department of the Sunnybrook Hospital was the triage nurse, Ms. D. Wright. The "Emergency Department Triage Form" completed by Ms. Wright indicated that she saw Ms. Wootton at 8:47 a.m., that Ms. Wootton's chief complaint was a left shoulder injury and that Ms. Wootton "fell running to bus - fell onto left side - complains of left shoulder pain." The form also contained a box to indicate whether "supporter/family present" and Ms. Wright checked off the "no" box.⁴

The "Emergency Nursing Assessment" completed by Ms. Wright confirmed that she saw Ms. Wootton again at 9:25 a.m. in order to insert an intravenous line and transfuse 500cc of saline solution in preparation for surgery. Ms. Wootton was thereafter cared for by other hospital staff. On December 11, 2000, she was re-examined in the Fracture Clinic by Dr. Terry S. Axelrod. His consultation note referred to "an injury to her left shoulder" and "a significant impacted four-part fracture of the proximal humerus", the humerus being the bone between the shoulder and the elbow.⁵

Ms. Wright testified at the hearing that while she had no specific recollection of Ms. Wootton, she usually obtains her description of how a patient is injured directly from the patient and she tries to record the "key points." She explained that the Emergency Report, a separate document, was completed by the treating physicians and that the first physician saw her at 9:45 a.m. She agreed that the Emergency Report contained the following description of how Ms. Wootton was injured: "8:30 a.m. fell, landed right outstretched arm, left extention [sic] & external rotated, nil parasthesia, tingling/numbness in left upper limb, pain - immediate onset, most severe left shoulder but pain throughout left arm."⁶

Ms. Wootton's Application to the TTC Ins. Co. and its investigation

Ms. Wootton's Application for Accident Benefits was received by the TTC Ins. Co. on January 24, 2001. It was submitted by her representative at the time, Mr. Robinson Reyes of Triple Seven Consulting Services, who described himself on the Application form as an "A.B. Specialist." Ms. Wootton acknowledged her signature on the Application form but testified that the form was otherwise completed in the handwriting of her representative. As requested in Part 3, the completed Application form provided the following "accident details":

Date and time:

December 11, 2000, 8:30 a.m.

Location:

Bus stop outside Sunnybrook Hospital

Description:

I was about to board Number 11 Bus going north when the bus proceeded to move, I was holding the bus, when I fall down and broke my left arm

Did you go to the hospital?

E.R. Sunnybrook Hospital taken by the bus driver⁷

On receipt of Ms. Wootton's Application, the TTC Ins. Co. assigned Ms. Marianne Boccongelle to investigate her claim. Ms. Boccongelle arranged with Mr. Reyes to take a statement from Ms. Wootton on February 1, 2001 at his offices. The relevant portion of the statement, taken down in Ms. Boccongelle's handwriting, was as follows:

On December 11, 2000, I was on my way to work. I took the 124 Lawrence bus to Sunnybrooke [sic] Hospital. I had a transfer but I have since lost it. I was travelling alone. It was between 8:15 and 8:30 a.m. when I exited the 124 bus. I was going to get on the #11 Davisville Bus which pulled in f ront. 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 front door. A group of people got in before me. I was the last to try and board the bus. I reached up with my left arm. The door closed.⁸ 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. He stopped the bus, opened the door and got off the bus. The driver was a male white about 5'8" or 5.9" tall. He was in his late 40's to early 50's. I think he was clean shaven. I can't recall if he wore glasses but I didn't think so. He was average build. The driver stood on the step. I tried to push myself up with my left arm. I could not. I used my right arm to get up as the driver stood on the step and watched. My left arm was now "hanging down". After I was up he got off the bus. He asked if he could help me and if I was okay. I said I did not know. The driver told me I should go to Emergency. I asked for his help. He led me to emergency and found me a seat. He spoke briefly to the receptionist and left.

The parties agreed that both the Application for Accident Benefits and Ms. Wootton's statement on February 1, 2001 incorrectly identified the date Ms. Wootton was injured. The correct date was December 7, 2000. December 11, 2000 was the date Ms. Wootton re-attended at the Fracture Clinic of the Sunnybrook Hospital. Ms. Boccongelle discovered this error when she received the Sunnybrook Hospital records on February 26, 2001.⁹

Using information supplied by the TTC, Ms. Boccongelle's investigated Ms. Wootton's claim from four different angles: driver descriptions, driver statements, bus delays and internal reporting.

With respect to driver descriptions, Ms. Boccongelle attempted to match Ms. Wootton's description of the driver of the route 11 bus with those of the drivers of buses on that route which were northbound at Sunnybrook Hospital between 8:00 a.m. and 9:00 a.m. on December 7, 2000. TTC records, including those generated by electronic surveillance of TTC buses, were produced in evidence. According to Ms. Boccongelle, these records indicated that only two northbound route 11 buses stopped at Sunnybrook Hospital¹⁰ at the same time as route 124 buses¹¹ during the relevant time period. Ms. Boccongelle testified that she was informed by a TTC employee that the drivers of the two route 11 buses were an East Indian male and a white female, neither of whom corresponded to Ms. Wootton's description of the driver of the route 11 bus in her February 1, 2001 statement. Ms. Boccongelle further testified that a third driver of a route 11 bus was also at the Sunnybrook Hospital stop during the relevant period but not at the same time as a route 124 bus. Since this third driver was a black male, there was again no match with the driver described by Ms. Wootton.

With respect to driver statements Ms. Boccongelle obtained oral statements from the East Indian male driver and the white female driver on February 21 and 22, 2001. Both denied any knowledge of a woman falling near their buses at the Sunnybrook Hospital in December 2000.¹² Ms. Boccongelle then obtained written statements from the East Indian male driver and the black male driver in November 2003. Again, they both denied any recollection of a person falling near their buses at the Sunnybrook Hospital.¹³

With respect to bus delays, Ms. Boccongelle testified that one would have expected to see a delay in a route 11 bus at the Sunnybrook Hospital stop on the morning in question if, as Ms. Wootton maintained, the driver got off the bus to accompany her to the Emergency area of Sunnybrook Hospital. She testified that she attended at the scene and estimated that it took her approximately three and a half minutes to walk "at a good pace", one way, from the place where the route 11 buses stopped to the emergency department of the Sunnybrook Hospital.¹⁴ Yet, she testified, the electronic surveillance of the three northbound route 11 buses arriving and leaving the Sunnybrook Hospital stop between 8:00 a.m. and 9:00 a.m. on December 7, 2000 (i.e., not just the two which were there at the same time as route 124 buses) showed no delays. On the contrary, they showed all three buses arriving at Sunnybrook Hospital and leaving, after turning a short loop, within four or five minutes.¹⁵

Finally, with respect to internal reporting, Ms. Boccongelle produced "surface service log" notes for December 7, 2000 containing brief descriptions of the events of that day which somehow disrupted TTC service. Ms. Boccongelle maintained that such a note might be generated even if the disruption did not cause a delay and she gave as an example an incident which necessitated the calling of an ambulance. However, all notes entered into evidence either concluded with the comment "service adjusted" or "diverted" or involved some kind of delay, property damage or assault. Many of the events described related to passengers or pedestrians, including: an elderly and confused passenger, a pedestrian who smashed the glass pane of a bus door, an ill passenger who was sent to hospital, three fare disputes with passengers, two of which escalated into assaults, a passenger who was caught in a door while boarding a bus, two passengers who fell to the floor during stops, an altercation between two passengers and a sexual assault of one passenger by another.

Ms. Boccongelle testified that there was no record of a disruption of service on a route 11 bus on December 7, 2000, whether due to an event involving a passenger or a pedestrian or for any other reason.¹⁶ In a memo dated June 5, 2001, Ms. Boccongelle further noted that "no operator has filed a miscellaneous report in connection with this incident."¹⁷ At the hearing, she testified that no "customer service complaint" was received in relation to Ms. Wootton's alleged accident. She stated that any such complaint would have been tape-recorded and investigated.

TTC Ins. Co.'s challenges to Ms. Wootton's credibility

The TTC Ins. Co. challenged Ms. Wootton's credibility on many grounds.

First, it argued that the statement "fell running to bus" contained in the Emergency Department Triage Form, and written within moments of the incident, was inconsistent with Ms. Wootton's subsequent statements and evidence about how she was injured. It further noted that while Ms. Wootton testified that she was on medication when she spoke to the triage nurse, the nurse testified that she was the first person to whom Ms. Wootton spoke at the hospital and the hospital records confirmed that Ms. Wootton had not yet received any medication for her injuries by that point.

Second, the TTC Ins. Co. submitted that the results of its multi-angled investigation did nothing to support or corroborate Ms. Wootton's evidence about how she was injured and then accompanied by the driver of the route 11 bus to the emergency department of the Sunnybrook Hospital.

While these were the primary challenges to Ms. Wootton's credibility, counsel for the TTC Ins. Co. questioned Ms. Wootton's evidence on the following additional grounds.

Ms. Wootton could not have caught the route 124 bus from the Davisville subway station, as she testified. Route 124 buses leave from the Lawrence subway station, not the Davisville subway station.¹⁸

The Emergency Department Triage Form indicated that Ms. Wootton's was not accompanied by a "supporter."

Ms. Wootton did not report her injuries for over a month and then only by submitting an Application for Accident Benefits completed in the handwriting of her representative.

Three pieces of evidence would be consistent with a finding that Ms. Wootton fell while running to catch a bus. First, Ms. Wootton testified that she had wanted to be at work early that day. Second, she testified that it was "a bit snowy" with a "light dusting" on the ground. Third, the Emergency Report contained a reference to an "outstretched arm", a typical pose of a person running to catch a bus.

If, as Ms. Wootton's statement to Ms. Boccongelle indicated, the bus moved only about a foot before stopping, and if, as she maintained on cross-examination, she fell towards the bus as it moved away, how then was she able to avoid hitting the bus while falling, as she also maintained on cross-examination?

Counsel for the TTC Ins. Co. identified what she characterized as inconsistencies between the description of the "accident" contained in Ms. Wootton's Application for Accident Benefits, the description she gave to Ms. Boccongelle on February 1, 2001 and the description she gave at the hearing. Counsel focussed on the expression "holding the bus" in the description contained in the Application for Accident Benefits and the expression "I went to bang on the bus" in the description given to Ms. Boccongelle. Counsel submitted that these words provided a different account of the "accident" than the one Ms. Wootton provided at the hearing.

Finally, Ms. Wootton produced no witnesses to corroborate her description of how she was injured.

Findings on credibility

Statement contained in the Emergency Department Triage Form

Counsel for Ms. Wootton submitted that I did not need to resolve any inconsistency between the statement "fell running to bus", contained in the Emergency Department Triage Form, and Ms. Wootton's subsequent statements and evidence about how she was injured. On either version of the facts, he argued, Ms. Wootton was injured in an "accident" as defined in section 2(1) of the Schedule.

I reject this argument. Factual determinations about how the injuries were sustained are at the heart of the cases on the definition of "accident." In my view, this is not a case where I can avoid making such determinations by deciding that, in any event, the two competing versions of the facts both satisfy the definition of accident. This approach would ignore the possibility that one, the other, or perhaps neither, version of the facts is worthy of belief precisely because of the conflict between them. It would also involve applying the law without first determining the facts, a practice which, if employed at all, is better suited to arriving at a negative, not a positive, finding on entitlement.¹⁹

Moreover, apart from the argument of her counsel, this is not a case where the applicant herself advanced competing versions of the facts. Ms. Wootton's testimony at the hearing was clear: the statement that she "fell running to bus" was inaccurate; she was not running when she fell and she had no reason to run. Nevertheless, since the TTC Ins. Co. relied upon that statement to question Ms. Wootton's credibility, I must address the question of whether the conflict between that version of how she was injured and the version she gave in subsequent statements and evidence renders the latter unworthy of belief.

In addressing this question, I begin by noting that since the statement "fell running to bus" was written by the triage nurse within moments of the incident, it was less likely to have been influenced by Ms. Wootton's claim for benefits than her subsequent statements and evidence. However, while I acknowledge that this is an important factor to consider, in my view, it is not the only factor. I have also considered the following four factors.

First, Ms. Wootton's testimony at the hearing included an admission that she may have told the triage nurse that she "fell running to bus." She testified that she could not recall what she told the triage nurse. It impressed me that while Ms. Wootton was given the opportunity to deny telling the triage nurse that she "fell running to bus", she did not attempt to do so. Whereas an untruthful witness would have denied making a prior inconsistent statement, Ms. Wootton admitted that she was "not as clear as a bell" when she was speaking to the triage nurse and that she may have made the statement recorded by the triage nurse.

Second, Ms. Wootton testified that she could not recall anyone at the hospital asking her for a detailed description of how she was injured. This would be consistent with the hospital's primary reasons for seeing Ms. Wootton in the emergency department, namely, to examine her injuries and to provide treatment, neither of which required any detailed knowledge of how she was injured. It is also consistent with the extremely brief descriptions contained in the hospital records.

Third, the hospital records actually contain two descriptions of how Ms. Wootton was injured, one written by the triage nurse in the Emergency Department Triage and the other written by the first treating physician in the Emergency Report which, to repeat, read: "fell, landed right outstretched arm, left extention [sic] & external rotated." The first description, written at approximately 8:47 a.m., indicated that Ms. Wootton fell onto her left side but the second description, written at approximately 9:45 a.m., indicated that she fell onto her right outstretched arm. This second description was inconsistent with the first description and with the actual injuries to Ms. Wooton's left shoulder and arm. Ms. Wootton denied telling anyone that she landed on her right outstretched arm. In my opinion, the reliability of both hospital descriptions of how Ms. Wootton was injured was reduced by the inconsistency between them and by the error contained in the second description.

Fourth, while Ms. Wootton initially testified that she was on medication when she spoke to the triage nurse, she later acknowledged that she did not receive medication until after being x-rayed at around noon. Still, while she was not yet on medication, the Emergency Report confirmed that the onset of Ms. Wootton's pain was immediate. This was consistent with Ms. Wootton's evidence that she was in excruciating pain and shock immediately after her fall and would help to explain her giving a brief, incomplete and imprecise explanation of how she was injured to the triage nurse. It would also be consistent with Ms. Wootton’s primary reasons for going to the emergency department: to have her injuries diagnosed and treated, not to provide a detailed description of how she was injured.

Taking all five factors into consideration, I conclude that the inconsistency between the statement "fell running to bus", contained in the Emergency Department Triage Form, and Ms. Wootton's subsequent statements and evidence about how she was injured does not render the latter unworthy of belief.

The TTC Ins. Co.'s Investigation

In my view, the results of the TTC Ins. Co.'s investigation did not contradict Ms. Wootton's evidence.

Ms. Wootton testified that on December 7, 2000, she was a passenger on a route 124 bus which arrived at Sunnybrook Hospital at about 8:30 a.m. and that she was still on the route 124 bus, preparing to disembark, when a route 11 bus pulled in directly in front of the route 124 bus. There was no dispute that the stop for the route 11 bus was directly in front of the stop for the route 124 bus near the entrance to the Sunnybrook Hospital.

The electronic surveillance records indicated that on December 7, 2000, a route 124 bus arrived at Sunnybrook Hospital and Bayview Avenue at 8:31:00 a.m. and that a route 11 bus arrived at the Sunnybrook Hospital entrance stop at 8:34:00 a.m. That evidence would be consistent with Ms. Wootton's evidence that both buses were in the vicinity of the Sunnybrook Hospital at around 8:30 a.m. on the morning in question, with the route 124 arriving first. However, the same records also indicated that the route 124 bus was at the Sunnybrook Hospital entrance stop, where Ms. Wootton testified that she fell, at 8:34:20 a.m., twenty seconds after the route 11 bus. That evidence would appear to be inconsistent with Ms. Wootton’s evidence that the route 124 bus arrived first.

This gives rise to two questions: first, how reliable were the electronic surveillance records and, second, assuming that they were reliable, did they contradict Ms. Wootton's evidence?

Mr. Zwiebel attacked the reliability of these records by pointing to the fact that the record of the very same route 11 bus showed it, on more than one occasion, arriving at two locations at exactly the same time. By my count, the record actually contained nine "same-time-different-place" entries.²⁰ Ms. Boccongelle acknowledged two of these entries on cross-examination and later in her testimony admitted that she was unable to provide an explanation for any of them. In the absence of an explanation for these physically impossible entries, I am unable to rely upon the record of the electronic surveillance of the route 11 bus as evidence of its precise whereabouts on the morning in question.

Even if I were to rely upon the electronic surveillance records, they did not necessarily contradict Ms. Wootton's evidence. These records only indicated the location of buses at twenty-second intervals, i.e., despite the fact that buses obviously did not always pass the "signposts" precisely on the minute, exactly twenty seconds later, exactly forty seconds later, or precisely on the next minute, etc., that was the only information about time contained in the records. The evidence did not disclose how the system decided which twenty-second time interval to record. However, the records also contained information about the speed of vehicles at signposts. In particular, the signpost at the Sunnybrook Hospital entrance clocked the speed of the route 124 bus as 0 km/hr and the speed of the route 11 bus as 10 km/hr.²¹

If, therefore, the electronic surveillance records indicated times according to the closest twenty-second interval, those records would not contradict the following scenario. Both buses were approaching their respective stops at the Sunnybrook Hospital entrance at 8:34 a.m. on the morning in question but at different speeds. The route 11 bus arrived at the signpost first at 8:34:09 a.m., recorded as 8:34:00, at a speed of 10 km/hr. At that instant in time, the route 124 bus was still approaching the signpost but at such a low speed that when it reached the signpost, two seconds later, at 8:34:11 a.m., recorded as 8:34:20, its speed was recorded as 0 km/hr. A passenger on the route 124 bus who was preparing to disembark would have been able to see the route 11 bus as it overtook the route 124 bus and then pulled into its stop in front of the route 124 bus. This scenario, and others closely proximate in time sequences, would be consistent with Ms. Wootton's evidence.

I further find that the results of the TTC Ins. Co.'s investigation did not contradict the following version of the facts: the person who accompanied Ms. Wootton to the emergency department of the Sunnybrook Hospital was not the driver of the route 11 bus but rather another TTC employee who was also on the route 11 bus, who observed Ms. Wootton "sprawled on the ground" from the steps of the bus and who decided to get off the bus to help her out, leaving the route 11 bus, and its driver, to continue on without disruption or delay.

It would be incorrect to say that there was no evidence to support this version of the facts. On the contrary, in my opinion, it is the only version of the facts which is both consistent with the preponderance of the available evidence and credible.

Ms. Wootton testified that she only assumed that the person who accompanied her to the hospital was the driver of the route 11 bus. This is consistent with her evidence that she never actually boarded the route 11 bus and that there were other passengers ahead of her. According to both her evidence and her written statement of February 1, 2001, the first time Ms. Wootton actually saw the person who accompanied her to the hospital was when he stood on the steps of the bus watching her try to get up.

The TTC Ins. Co.’s investigation only established that Ms. Wootton could not have been helped to the emergency department of the Sunnybrook Hospital by the driver of the route 11 bus. It did not identify the whereabouts of every uniformed TTC employee on the day in question.

Finally, Ms. Boccongelle testified that every TTC employee gets a "free pass" to ride on TTC vehicles, that "it happens quite a lot" that TTC employees use TTC vehicles and that if such employees were "coming home from or going to work, they could potentially be in uniform."

I acknowledge Ms. Boccongelle's evidence that another TTC employee might have reported the incident. I also acknowledge the statements Ms. Boccongelle obtained from the three drivers of the route 11 buses, none of whom had any recollection of a person falling near their buses at the Sunnybrook Hospital. However, Ms. Boccongelle admitted at the hearing that her investigation was unable to determine whether "an operator" may have made a verbal report of the incident to "transit control" without ever filing a written report.²² In any event, the absence of a recollection or a report, oral or written, was not, in my view, necessarily inconsistent with the version of the facts outlined above.

On the one hand, the driver and the other TTC employee may not have realized that Ms. Wootton's fall had anything to do with the operation of the bus, particularly if neither of them heard her banging on the door before the bus pulled away. In this situation, neither the driver nor the other TTC employee may have perceived any need to report the incident. This perception would have been consistent with the contents of the "surface service log" notes presented as part of the TTC Ins. Co.'s investigation. These notes only reported disruptions and adjustments in service caused by passengers or pedestrians who were either on TTC vehicles or who physically interacted in some way with TTC vehicles or drivers. The version of the facts outlined above would not have involved any disruption or delay of service and may not, as far as the driver and another TTC employee were aware, have involved any interaction between a TTC vehicle and a passenger or pedestrian.

On the other hand, neither the other TTC employee nor the driver may have wanted to report the incident, or admit to any recollection of the alleged incident, precisely because they had both heard Ms. Wootton banging on the door before the bus pulled away and, therefore, feared that a report, or subsequent investigation, might portray the driver in a negative light. Ms. Boccongelle acknowledged on cross-examination that this type of fear might motivate a driver not to report an incident. It might also motivate another TTC employee not to report an incident.

In my view, Ms. Wootton's credibility cannot be successfully challenged on the basis of the absence of reports or recollections when their potential makers or possessors may have perceived no reason to make them or may have perceived reasons not to make them or may have perceived reasons to deny possessing them.

I, therefore, find that the results of the TTC Ins. Co.'s investigation did not contradict Ms. Wootton's evidence that she was assisted to the emergency department of the Sunnybrook Hospital by a TTC employee whom she assumed to be the driver of the route 11 bus. The results of the investigation established only that she could not have been assisted by the driver of the route 11 bus and that her assumption in that regard must have been wrong.

Moreover, I am completely unable to understand why Ms. Wootton would have maintained in her statements and evidence that she was assisted by a TTC employee if this was not true. In terms of proving her entitlement to benefits, this evidence was entirely unnecessary. The critical evidence was that which explained how she was injured. Moreover, if Ms. Wootton was lying or was coached by her representative on how to tailor her version of the facts, why did she include facts which, in addition to being unnecessary, portrayed a TTC employee in an entirely favourable light? I find it very difficult to believe that Ms. Wootton simply invented this part of her story.

In view of the previous history of this matter,²³ I should add that there was no onus on the TTC Ins. Co. to identify the whereabouts of every uniformed TTC employee on the day in question in order to show that no TTC employee could have assisted Ms. Wootton in the manner in which she described. Had it done so, this part of my decision might have arrived at a different conclusion. In fact, the TTC Ins. Co. probably could not have produced this kind of evidence but, in law, it was under no onus to do so or to otherwise disprove Ms. Wootton’s claim. The onus was always on Ms. Wootton to prove her claim. To do so, her version of how she was injured had to be worthy of belief. The TTC Ins. Co. was free to attack her credibility and it certainly did so, in part through its investigation. However, I find nothing in the results of that investigation which either contradicted Ms. Wootton’s evidence about how she was assisted by a TTC employee, whom she assumed to be the driver of the route 11 bus, or, more importantly, which justified a finding that her evidence about how she was injured was unworthy of belief.

The other grounds on which Ms. Wootton's credibility was challenged

Ms. Wootton testified that she travelled by subway to one of two alternate subway stations, Davisville or Lawrence. I accept Ms. Wootton’s evidence that she was injured on the morning of December 7, 2000 while transferring from a route 124 bus to a route 11 bus at Sunnybrook Hospital on her way to work at the Granite Club. I would not have accepted that evidence had Ms. Wootton also testified that she always got off the subway at the Davisville station in order to catch a route 11 bus. There would then have been no explanation for her need to take a route 124 bus to Sunnybrook Hospital in order to catch a route 11 bus. But since Ms. Wootton’s evidence was that she sometimes travelled to the Lawrence subway station, I regard her error about where she got off the subway that particular morning, almost five years before, as being of no importance in assessing her overall credibility.

The triage nurse testified that she would have completed the Emergency Department Triage Form with Ms. Wootton sitting in front of her in a chair. She may, therefore, have checked "no" on the "supporter/family present" box merely because Ms. Wootton was alone at that time. The triage nurse testified that she had no actual recollection of Ms. Wootton or anyone else who may have accompanied her to the emergency department. In my view, this evidence did not establish that Ms. Wootton arrived at the emergency department unaccompanied.

Ms. Wootton admitted that she did not report the incident to the TTC before submitting her Application for Accident Benefits, slightly more than a month after the incident. She testified that it was through her son that she contacted her representative. Ms. Wootton was obviously not involved in a typical car accident and, in my view, it was entirely understandable that she took time to obtain advice before submitting a claim and that, having done so, she then relied upon the assistance of her representative in making the claim. These facts do not provide a basis for questioning Ms. Wootton’s credibility.

Ms. Wootton’s evidence that she had wanted to be at work early that day would be consistent with a finding she was in a hurry and that she might, therefore, have fallen while running to catch a bus. However, Ms. Wootton testified under oath that this is not what happened and I have found no reason to reject her evidence. Moreover, there is no evidence that the ground was "slippery" as suggested by counsel for the TTC Ins. Co. during her cross-examination of Ms. Wootton. As previously indicated, I also reject as inaccurate the Emergency Report statement that she landed on her right outstretched arm. An outstretched left arm would be consistent with Ms. Wootton’s evidence about how she was injured.

In my view, Ms. Wootton’s credibility did not depend on her explaining why she was able to avoid hitting the bus while falling. Again, had she been coached on how to strengthen the factual foundation of her claim, one might have rather expected her statements and evidence to be that she did hit the bus while falling.

While they vary in the amount of detail provided and expressions used, I find no significant inconsistencies between the description of the "accident" contained in Ms. Wootton's Application for Accident Benefits, the description she gave to Ms. Boccongelle on February 1, 2001 and the description she gave at the hearing.

Finally, Ms. Wootton testified that passengers on the bus began yelling "a lady fell, a lady fell" just before the bus stopped. Some of those passengers might well have been able to see whether or not Ms. Wootton was injured in the manner she described in her evidence. However, the TTC Ins. Co.'s investigation established that none of the three possible route 11 buses was delayed. On the contrary, all three buses arrived and left Sunnybrook Hospital within the same time frame. There was, therefore, very little, if any, opportunity for passengers who had both witnessed the incident and who wanted to provide their coordinates to Ms. Wootton, to get off the bus and do so. Moreover, it is reasonable to deduce from my previous findings that those same passengers would have also been able to see that Ms. Wootton was almost immediately assisted by a uniformed TTC employee. To the extent that they had any inclination to "get involved", this would have probably eliminated it. For these reasons, I am not prepared to draw any adverse inference about Ms. Wootton’s credibility from the fact that she called no witnesses to corroborate her description of how she was injured.

For all the above reasons, I accept as worthy of belief Ms. Wootton's evidence about how she was injured on December 7, 2000.

Applying the law and Conclusion

The relevant part of the definition of "accident" contained in section 2(1) of the Schedule reads as follows: "accident" means an incident in which the use or operation of an automobile directly causes an impairment

As submitted by counsel for the TTC Ins. Co., the leading case on the interpretation of this definition is the 2004 decision of the Ontario Court of Appeal in Greenhalgh v. INGHalifax Insurance Co. 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338. Since the word "directly" is central to the definition, the Court of Appeal reviewed the jurisprudence on how that word should be interpreted. At paragraph 47, the Court made the following comments in connection with the Supreme Court of Canada's decision in Heredi v. Fensom [ 2002 SCC 50, 2002] 2 S.C.R. 741:

47As stated earlier, in some cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". In Heredi, the Supreme Court was asked to Interpret the phrase "damages occasioned by a motor vehicle" in legislation from Saskatchewan. Ms. Heredi had been injured while riding on a paratransit bus designed to accommodate persons with physical disabilities. Mr. Fensom was driving the bus. Mr. Fensom helped Ms. Heredi place her crutches under her right shoulder, and then proceeded to drive the bus "in such a manner as to cause the plaintiff's crutches to jar her right shoulder, thereby causing injury". The Supreme Court held at para. 34, that if "the dominant feature of the damages is their relation to a motor vehicle accident", then the legislation would apply. The Supreme Court held at para. 41 that "it [was] clear that the direct cause of the injury was the operation of a motor vehicle.

Like the Court of Appeal, I acknowledge that the Heredi decision applied a less restrictive test of causation than the one created by the presence of the word "directly" in the definition contained in the Schedule. Nevertheless, like the Supreme Court of Canada in the Heredi case, I find that the direct cause of the injury sustained in the present case was the operation of a bus. In particular, I accept Ms. Wootton's evidence that the closing of the door of the route 11 bus as she was about to board it, followed by the pulling away of the bus as she was still banging on its door, caused her to lose her balance, fall and sustain injuries. I, therefore, find that Ms. Wootton’s injuries were caused directly by the use or operation of an automobile.

I conclude that Ms. Wootton was injured in an "accident" as defined in section 2(1) of the Schedule.

EXPENSES:

If the parties are unable to agree on expenses, one of them must so advise me within 30 days of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code.

October 27, 2005

David Leitch

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 152

FSCO A03-000002

BETWEEN:

DEBORAH WOOTTON

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Wootton was injured in an "accident" as defined in section 2(1) of the Schedule.

October 27, 2005

David Leitch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab 18.
3. 3Ms. Wootton testified that she did not keep the transfer and it did not, therefore, become part of the TTC Ins. Co.'s subsequent investigation as detailed below.
4. 4Exhibit 1, Tab 6.
5. 5Ibid.
6. 6Ibid.
7. 7Exhibit 1, Tab 2.
8. 8Exhibit 1, Tab 4.
9. 9Exhibit 1, Tab 6. Some of the materials in Exhibit 2 related to the investigation conducted by Ms. Boccongelle before she became aware of the correct date of injury.
10. 10Exhibit 1, Tab 9.
11. 11Exhibit 1, Tab 22.
12. 12Exhibit 2, pp. 46, 47.
13. 13Exhibit 1, Tab 14.
14. 14see also Exhibit 1, Tab 25.
15. 15Exhibit 1, Tab 9.
16. 16Exhibit 1, Tab 15.
17. 17Exhibit 1, Tab 26.
18. 18Exhibit 1, Tab 21. The route followed by buses on route 11 is shown at Exhibit 1, Tab 16.
19. 19An arbitrator might, for example, find it unnecessary to decide between competing versions of the fact on the ground that, in any event, neither satisfied the definition of accident.
20. 20Exhibit 1, Tab 9, first page.
21. 21Exhibit 2, p. 30 provides a list of some signpost locations but none near the Sunnybrook Hospital loop.
22. 22Exhibit 2, p. 31. Ms. Boccongelle testified that the tapes referred to in this memo were not kept beyond a couple of months.
23. 23Wootton and TTC Insurance Company Limited (FSCO P04-00004, November 2, 2004) appeal.