Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 153

FSCO A05-002112

BETWEEN:

VICTOR MARIANO

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Joyce Miller

Heard:

July 13, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Kevin Wolf for Mr. Mariano

Steve Anderson for TTC Insurance Company Limited

The Applicant, Victor Mariano, was injured in a motor vehicle accident on May 5, 2005. He applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule¹ TTC denied Mr. Mariano's claim, alleging he was not involved in an "accident" within the meaning of section 2 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Mariano 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 is:

Was Mr. Mariano injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Mr. Mariano was injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Mr. Mariano, who is 42 years old, emigrated from the Philippines in 1995. He is married and has two children. On May 5, 2005, at 5:20 a.m., Mr. Mariano boarded Bus 29 at the corner of King going northbound on Dufferin. Mr. Mariano was on his way to work as a cleaner at West Park Hospital. It was his intention to change to the 300 night bus going west on Bloor Street which would bring him to his work.

When Bus 29 arrived at Bloor Street it could not stop at the bus bay because of an illegally parked truck. As a result, the passengers were discharged onto the roadway and had to make their way to the sidewalk.²

Mr. Mariano testified that he exited from the rear door. He said it was dark outside. He took two steps when his right foot tripped over a raised hump of asphalt in the roadway. He fell forward and struck his head on the curb. He testified that the fall occurred within one to two seconds after he got off the bus. A passenger alerted the bus driver of Mr. Mariano's fall and the bus driver called an ambulance.

Mr. Mariano claims that he was injured as a result of an accident as defined by subsection 2(1) of the Schedule. TTC disputes this claim.

Mr. Mariano's Submissions

Mr. Mariano submits that when the bus driver could not pull into the designated bus stop, he was compelled to exit the bus onto the roadway and walk across the road to the sidewalk. Mr. Mariano submits that disembarking from a bus is an ordinary and well known activity to which buses are normally put to. He submits that until he made it to the sidewalk, he was still in the course of disembarking from the bus.

Mr. Mariano submits that by stopping on the roadway, instead of at the bus bay, the TTC bus set in motion an unbroken chain of events that ultimately led to his injuries. In terms of time, proximity and activity his injuries were very closely tied to the use and operation of the bus.

Even if the bump in the road can be described as an intervening event, he submits, it arises out of the bus stopping in the traffic lane and it is a foreseeable risk associated with disembarking across a lane of traffic. The fact that he did not come into contact with the bus is irrelevant. He submits there is, in fact, an uninterrupted chain of causation and the bump in the road can best be described as ancillary to the incident. The dominant cause of the accident was the bus.³

Accordingly, Mr. Mariano submits that as a result of the use and operation of the TTC bus on May 5, 2005, he was injured in a motor vehicle accident within the meaning of subsection 2(1) of the Schedule.

TTC'S SUBMISSIONS

TTC submits that Mr. Mariano exited the bus and began walking away from the bus before encountering the raised asphalt in the middle of the roadway. TTC submits that Mr. Mariano tripped and fell after he had safely exited the bus and that the bump in the road was an intervening force that broke any chain of causation that was set into place by the bus dropping off Mr. Mariano where it did. TTC submits that the journey had ended when Mr. Mariano got off the bus.

Relying on the case of Mahadan and Co-Operators⁴ TTC submits that the bus "led Mr. Mariano to the location, but his injuries were sustained from a new independent source," tripping over the asphalt on the road.

The Law

Subsection 2(1) of the Schedule, which was enacted on November 1, 1996, defines "accident" as follows:

"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.

Prior to November 1, 1996, the definition was more expansive in that it encompassed impairments caused "indirectly or directly" by the use or operation of an automobile. The post-November 1996 definition limited the definition to "directly causes."

In the Court of Appeal decision of Chisholm and Liberty Mutual, Justice Laskin clearly confirms that the new definition of "accident" significantly narrows the scope of what can be considered an accident in comparison to the definition prior to November 1996.

A leading arbitration case in interpreting the revised definition of an accident is Petrosoniak and Security National Insurance Company.⁵ In that case, Arbitrator Novick found that the deletion of the word "indirectly" from the definition now required that there be a direct link between the circumstance that caused an injury and the incident. In interpreting the new definition of "accident," Arbitrator Novick adopted the definition of "direct cause" found in Black's Law Dictionary where the phrase was defined as:

... the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source, [emphasis omitted]

This interpretation of "directly causes" has been consistently adopted by both arbitrators and judges in interpreting the post-November 1996 definition of "accident."

A number of arbitration cases have discussed the new definition in depth and its effect on the concept of what is an "accident" post-November 1996. I have relied on them and the Chisholm case to extract the following propositions applicable to dealing with the issue of what is an "accident" pursuant to subsection 2(1) of the Schedule. These are:

The use or operation of a motor vehicle must directly cause the impairment.⁶
A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.⁷
Direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim's injuries, and one of the direct causes must be the use or operation of a motor vehicle.⁸
The motor vehicle need not come into direct physical contact with the accident victim.⁹
The role played by the motor vehicle must be more than just the location, opportunity or motive.¹⁰
The motor vehicle must be a dominant feature in the incident, and not ancillary to it.¹¹
Time, proximity, activity and risk are factors that are relevant in determining the causal connection between the use or operation of the automobile and the loss.¹²
The injury was a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.¹³

These principles are incorporated in my analysis below.

ANALYSIS AND FINDINGS

The burden of proof rests with Mr. Mariano to show on a balance of probabilities that he was injured as a result of an accident pursuant to subsection 2(1) of the Schedule. For the following reasons I find that Mr. Mariano has satisfied his burden.

As noted above, TTC takes the position that the bus merely brought Mr. Mariano to the location of his accident and that the tripping over the asphalt bump in the roadway was an intervening event that broke the chain of causation. TTC compared Mr. Mariano situation to that of the facts in Mahadan and Co-Operators.

In the Mahadan case, the applicant had parked his car in a parking lot. After taking out his groceries from the trunk, he turned away from the car and tripped and fell as a result of a groove in the pavement. In that case, the applicant's injury was found not to be as a result of an accident pursuant to subsection 2(1) of the Schedule. As the presiding arbitrator, I found that "the crack in the pavement had nothing to do with the use and operation of the motor vehicle, but was there because of construction work being done on the parking lot."

I find that the Mahadan case can be distinguished on the facts. I find that the facts in the present case are more in keeping with the Pinarreta case.

In Pinarreta, the applicant was injured as she disembarked from a bus when she slipped and fell on snow that was heaped at a bus stop. Arbitrator Muzzi found as fact that the applicant "had placed both of her feet outside the bus and onto the snowbank present at the bus stop and then slipped and fell." She further found "that there is no question in this case that the use or operation of the bus was involved in Mrs. Pinarreta's injury."

Arbitrator Muzzi then went on to find, for the reasons noted below, that Mrs. Pinarreta was involved in an accident pursuant to subsection 2(1) of the Schedule:

... Mrs. Pinarreta did not get off of the bus without incident. She slipped as she was getting off the bus. Mrs. Pinarreta's use of the bus here caused an uninterrupted chain of events ending in her injuries. She was using the bus for its intended purpose - to get her from point A to her place of work (point B). Disembarking the bus was integral to its use. When she slipped, Mrs. Pinarreta was simply attempting to descend from the bus, something she needed to do in order to make use of it. The presence of the snowbank at her exit point does not qualify as an intervening act or force. Rather it is an external condition existing at the time of the incident. Furthermore, even if the snowbank was an intervening force, it would qualify as one that did not break the link of causation because surely it is part of the ordinary course of things that bus passengers will have to attempt disembarking a bus in all manner of weather conditions. Moreover, even if the snowbank at the bus stop contributed in some way to her injury, it is clear that it was not the sole cause, as the act of disembarking also caused her to slip and injure herself.

Mrs. Pinarreta slipped within mere minutes, if not seconds, of descending from the bus, right at the bus stop, engaging in an activity required by the use of the bus. Her fall, and injuries, resulting from her attempt to leave the bus were within the realm of risks associated with motoring and, in particular, with the use of a public transit vehicle.

In the present case, Mr. Mariano was on the 29 bus so that it would take him to the 300 Bloor Street bus which would take him to work. Integral to the use of taking the bus was getting on and off of the bus in a safe manner. Not unlike the Pinarreta case, where the applicant was compelled to disembark at a snowbank on the sidewalk, in the present case, when the bus stopped in the roadway, and not in the bus bay at the sidewalk, Mr. Mariano was compelled to exit onto the dark roadway.

As in the Pinarreta case, I find that, like the snowbank, the raised asphalt in the roadway was an external condition existing at the time of the incident rather than an intervening act or force. As stated in Chisholm, a direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of an applicant's injuries, and one of the direct causes is the use or operation of a motor vehicle. In this case, I find that the use and operation of the bus was the "dominant" feature in the incident and a direct cause of Mr. Mariano's injuries.

I find that when the TTC bus stopped on the roadway, the bus set in motion an unbroken chain of events which resulted in Mr. Mariano tripping on the asphalt. Although tripping on the asphalt caused Mr. Mariano's injuries, I find this was "ancillary" to Mr. Mariano being compelled to disembark from the bus onto the dark roadway.

In exiting from the bus, Mr. Mariano, who was on his way to catch another bus, was engaged in a normal activity required by the use of the bus, namely, disembarking in a safe manner. Within one to two seconds after he exited the bus and before he reached the sidewalk, Mr. Mariano, who was still in the process of disembarking, tripped over the raised asphalt in the roadway. Like in the Pinarreta case, I find that Mr. Mariano's fall and injuries resulting from his attempt to leave the bus "were within the realm of risks associated with motoring and, in particular with the use of a public transit vehicle." I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle, the TTC bus, caused an uninterrupted chain of events ending in Mr. Mariano's injuries.

Accordingly, for these reasons, I find that Mr. Mariano was injured as a result of a motor vehicle accident pursuant to subsection 2(1) of the Schedule.

EXPENSES:

If needed, the parties may, within 14 days of receipt of this decision, speak to me on the issue of expenses.

September 15, 2006

Joyce Miller Arbitrator

Date