Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 16
FSCO A05-000865
BETWEEN:
MARTIN ADUSEI-PEASAH Applicant
and
TTC INSURANCE COMPANY LIMITED Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Joyce Miller
Heard: May 23 and 24, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received by August 3, 2006.
Appearances: Murray Tkatch for Mr. Adusei-Peasah Norma Priday for TTC Insurance Company Limited
Issues:
The Applicant, Martin Adusei-Peasah, claims he was a passenger on a bus that was involved in a motor vehicle accident on March 15, 2004. He applied for and was denied 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 Mr. Adusei-Peasah 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. Adusei-Peasah injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
Result:
Mr. Adusei-Peasah was injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
If needed, I may be spoken to on the issue of expenses within 30 days of receipt of this decision.
BACKGROUND
Mr. Adusei-Peasah, whose first language is Twi, emigrated from Ghana in 1969. He is 68 years old and is a retired pensioner from his job as a courier.
Mr. Adusei-Peasah testified that on the morning of March 15, 2004, he got on a bus on the northeast corner of Jane and Driftwood, with the intention of going to a shopping centre at Steeles and Dufferin. It was his impression that the shopping centre would open at 9 a.m. Mr. Adusei-Peasah testified that when he got on the bus he took a transfer and went to sit in the back of the bus. Before the bus started a car ran into the bus. Mr. Adusei-Peasah testified that he instantly felt the impact on his neck where he was vulnerable as he had previously broken his neck in a car accident in 1978.
Also, on impact, Mr. Adusei-Peasah's heart began to beat rapidly. He realized he did not have his medication, nitroglycerin, with him. His apartment was less than a five-minute walk from the bus stop. He stated he needed to "rush" home to take his medication.
Mr. Adusei-Peasah testified that when he got off the bus he took note of the bus number. He also took a quick glance at the car that hit the bus. He noted that it was a Honda, but did not get a good view of it because of the people standing around it. He stated that when he got home he took his medication. It took about 30 minutes for his heart to slow down and he fell asleep. When he woke up he felt pain in his body.
Mr. Adusei-Peasah testified that he called the TTC to report the accident and was told that the TTC would send him the application for accident benefit forms. He stated that when the forms did not come he asked his doctor to call the TTC for the forms. The forms were hand delivered to him on April 15, 2004.
In the meantime, Mr. Adusei-Peasah had obtained a copy of the application for accident benefit forms from his lawyer. On April 2, 2004, Mr. Adusei-Peasah sent in his application for accident benefits to the TTC,2 which it acknowledges it received on April 7, 2004.
Mr. Adusei-Peasah testified that he saw his doctor, Dr. Ampofo, after the accident. Dr. Ampofo recommended physiotherapy and sent him for x-rays on March 31, 2004. Dr. Ampofo's disability certificate of April 20, 2004 stated that his first post-accident examination with Mr. Adusei-Peasah was on March 22, 2004. His description of Mr. Adusei-Peasah's injuries was as follows:
Thoracic spine strain
Lumber spine strain
Left shoulder strain
Left knee strain
Neck strain and headaches
Blunt chest injury
On April 4, 2004, Mr. Adusei-Peasah sent TTC a treatment plan for chiropractic treatment. On April 12, 2004, TTC denied Mr. Adusei-Peasah's treatment plan. In its letter of denial dated April 12, 2004, the TTC stated:
We have not received an Application for Accident Benefits. We are unable to confirm based on information provided, that Mr. Peasah (sic) is covered under a policy at the time of this accident.
TTC sent Mr. Adusei-Peasah for an Insurer's Medical Examination with Dr. Platnick on May 11, 2004.
In his report dated May 11, 2004, Dr. Platnick stated that Mr. Adusei-Peasah "was co-operative, very pleasant and answered my questions in a straightforward manner."
In his summary, Dr. Platnick stated: "Mr. Adusei-Peasah sustained minor soft tissue injuries to his neck and back (myofascial strain), chest strain, and left knee strain." He stated that these injuries should have resolved in six weeks. He stated that "[d]uring the physical examination I did not identify evidence of musculoskeletal or neurological accident-related injury." He noted that there was pain focussed behaviour indicating symptom amplification and a number of inconsistencies. He concluded that he did not identify any accident-related injury "that would prevent Mr. Adusei-Peasah from resuming all of his pre-accident activities of daily living, personal care, mobility and housekeeping/home maintenance activities."
It should be noted that under "Medical History", there is no mention in Dr. Platnick's letter that Mr. Adusei-Peasah had suffered a broken neck in 1978 and had reconstructive surgery in that a piece of bone from Mr. Adusei-Peasah's hip was removed and placed in his cervical spine. No mention that Mr. Adusei-Peasah suffered from a burning sensation in his feet. There is no mention of two previous car accidents, one in September 1992 and the other in January 2003. The only note of a previous car accident is in the year 2000. However, Mr. Adusei-Peasah was never involved in a car accident in 2000.
On May 13, 2004, Mr. Peter Ashbourne, who investigated the accident for the TTC, took a statement from Mr. Adusei-Peasah. Mr. Ashbourne testified that Mr. Adusei-Peasah provided his statement from memory in a straightforward, credible manner.
Mr. Ashbourne was not the adjuster on the file, but was investigating the accident because six people had come forward, including Mr. Adusei-Peasah, claiming they were injured in the accident, although none had reported any injuries to the bus driver at the time of the accident. Mr. Ashbourne testified that it was his view that Mr. Adusei-Peasah could not show that he was a passenger on the bus. Accordingly, he advised the Accident Benefit Claims Adjuster, Mr. Steve Cummins, to deny the claim on the basis that Mr. Adusei-Peasah was not a passenger on the bus.
On June 10, 2004, Mr. Cummins wrote to Mr. Adusei-Peasah's counsel denying Mr. Adusei-Peasah's claim for accident benefits. In his letter, Mr. Cummins stated that the TTC "has been unable to confirm that your client's injuries, if any, arose out of the direct use or operation of a TTC vehicle insured with the Toronto Transit Commission Insurance Company Limited."
ANALYSIS AND FINDING
The issue to be decided in this case is whether Mr. Adusei-Peasah was a passenger on the TTC bus when it was involved in an accident on March 15, 2004. The burden of proof rests with Mr. Adusei-Peasah to show, on a balance of probabilities, that he was a passenger on the bus.
For the following reasons I find that Mr. Adusei-Peasah has satisfied his burden that it is more likely than not that he was a passenger on the bus on March 15, 2004 when it was involved in an accident.
Credibility is a key factor in this case. In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness's testimony has been contradicted by other evidence; and whether the testimony is plausible.
In addition, where there are inconsistencies and contradictions in the evidence, the adjudicator must decide when weighing and balancing the evidence, whether these inconsistences and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.
I find that, notwithstanding vigorous and extensive cross-examination covering not only the accident itself, but also the aftermath, the evidence of both Mr. Adusei-Peasah and Mr. Baffoe, a witness who testified on behalf of Mr. Adusei-Peasah, was internally consistent and consistent with each other, except for minor non-consequential details.
I find that Mr. Adusei-Peasah's evidence regarding the accident, on the substantial and material elements of his claim, to be consistent. At the hearing, Mr. Adusei-Peasah's report of the accident to the TTC on March 31, 2004 was read into the record. These facts in the report include that:
Mr. Adusei-Peasah was seated in the rear of the bus on the left side;
the bus was hit at the rear by a white Honda;
that the contact by the car caused the bus to move forward and then brake causing Mr. Adusei-Peasah to fall forward into the bar of the seat directly in front of him;
the bus driver left the bus and talked to someone, either police or ambulance personnel, but Mr. Adusei-Peasah was not sure with whom in fact the bus driver was speaking;
the bus driver re-entered the bus, and came to the rear of the bus and asked Mr. Adusei-Peasah if he needed any medical assistance;
Mr. Adusei-Peasah told the driver he did not need any medical assistance, however when he got home he started to feel pain; and
Mr. Adusei-Peasah visited his family doctor and was awaiting x-ray results.
On April 2, 2004, when Mr. Adusei-Peasah applied for accident benefits, he described his accident as follows: "I was a passenger on a TTC bus #6107 travelling north bound Jane Street and at Driftwood were hit on rear bumper fender by a Honda Car."
In Mr. Adusei-Peasah's statement to Mr. Ashbourne on May 13, 2004, given from memory without any notes, he confirmed:
that he boarded the TTC bus #6107 at Driftwood going north;
that he went to sit in the back of the bus;
that after he sat down he heard a bang from behind the bus and that the impact pushed the bus forward;
that he was thrown back in his seat and then forward;
that his head hit the back of his seat and his left knee hit the seat in front of him;
that his heart beat fast;
that he initially felt pain at the back of his head, back of his neck and left knee; that he did not tell anyone on the bus that he was hurt because he did not think it was serious;
that when he got off the bus there was no snow on the sidewalk and he did not see anyone fall;
that at the back of the bus he saw a white Honda and that the full front of it was in contact with the rear of the bus; that there was no one in the back of the Honda but believed there was more than one person in the car;
that he noted the number of the bus;
that there were no fire trucks or police cars present when he left the accident;
that he went home without much delay to take some Nitro-spray for his heart and then fell asleep;
that later in the evening he felt pain at the back of his head, neck, lower back, left knee and left shoulder;
that he called his family doctor and made an appointment the following week but does not remember which day it was.
At the arbitration hearing, Mr. Adusei-Peasah provided detailed evidence very similar to his two statements. There were no significant contradictions or inconsistences that would impugn his credibility. While TTC tried to make much of the fact that Mr. Adusei-Peasah was mistaken by one hour as to what time the shopping center Mr. Adusei-Peasah was heading for would open, I do not see how this would impugn his credibility regarding whether or not he was on the bus. As well, although Mr. Adusei-Peasah remembered that it was a white Honda that had crashed into the bus and that there were no passengers in the back of the car, the fact that he mistook that there was more than one person in the Honda again is not so significant when compared to the many other details he got correct. Most importantly, despite the passage of time, Mr. Adusei-Peasah's evidence was consistent with his statements.
The principle objection that TTC had to Mr. Adusei-Peasah's credibility is that in its view Mr. Adusei-Peasah could not have been on the bus because he got the weather conditions wrong. In Mr. Adusei-Peasah's statement to Mr. Ashbourne, which he gave from memory without any notes, he described the weather and sidewalk conditions that morning as being:"... a cold day, with no snow. The roads and sidewalks were clear, with no snow on them.... There was no snow on the sidewalk when I got off." A witness, Mr. Emmanuel Baffoe, who claims to have been a passenger on the bus and who testified on Mr. Adusei-Peasah's behalf, also stated that at the time of the accident, when he got off the bus there was "no snow and not too much dry."
TTC, however, submits that Mr. Adusei-Peasah's evidence is not credible because there was "a very significant weather event" at the time of the accident. TTC submits that: "the bus had travelled through a sudden severe storm directly before the accident;" that there was an "intense spell of precipitation ... with a major drop in visibility" and that "driving and walking conditions were hazardous."
When the bus driver, Paul Ineson, testified in chief, he stated that there was a strange weather pattern and that most of the line (three-quarters of the way) was fine, "just wet roads," but that halfway between Finch and Steeles "... there was a very strange squall come through and the road suddenly became very, very icy and there was flurries and it was just a scary road condition."
Under cross-examination, it was put to Mr. Ineson that TTC's counsel had stated that his evidence would be that a sudden storm came up that restricted his visibility. At question 982 in the transcript, Mr. Adusei-Peasah's counsel asked: "Was there a sudden storm that obstructed your vision at that time?" Mr. Ineson gave an ambivalent response at line 983: "If there was a sudden storm, I don't believe my vision was obstructed that badly." [emphasis added]
Mr. Ineson's Occurrence Report of the accident confirms that his visibility was not obstructed at the time of the accident. The report stated that he was able to see when checking his mirrors before pulling out that a car was sliding into the back of the bus.
In Mr. Ineson's report of the accident in describing the weather, although there was a box referring to "snow" that he could have ticked off, he ticked off "overcast" and "flurries." At the hearing, he confirmed this by stating that there was no accumulation of snow. This would be in keeping with the "Official Weather Record" from Environment Canada, provided by the TTC, which indicates that for the City of Toronto there was just a trace of snow on March 15, 2004. When asked by TTC counsel, at question 1010 of the Transcript "when you got off the bus, did you find it slick and slippery?", Mr. Ineson's response was "No."
In a follow-up question, Mr. Ineson stated that he did not get off the bus for at least a half hour after the impact. The inference of this evidence is that by the time Mr. Ineson got off the bus, the condition of the sidewalk had changed from what he had allegedly observed.
I do not find it plausible that a car would crash into the bus and all of the passengers (approximately 35) would get off the bus and stand around waiting for another bus to arrive, but the bus driver would remain sitting in an empty bus for "at least a half hour" before getting off to inspect the accident. I find Mr. Adusei-Peasah's statement to the TTC on March 29, 2004 that when the impact happened the bus driver first got off the bus to speak to someone and then returned to see if anyone had been injured is more realistic and believable.
Moreover, I do not find it plausible that an alleged slick and slippery sidewalk could be transformed within a half hour, especially when the sky was overcast. In any case, there is no objective verifiable evidence that in fact the "walking conditions were hazardous."
For these reasons, I find that TTC's submissions that Mr. Adusei-Peasah was not a passenger on the bus because he did not confirm that there was an "intense spell of precipitation" and that "driving and walking conditions were hazardous" to be of no merit. I find that the bus driver's testimony and his Occurrence Report support Mr. Adusei-Peasah's evidence regarding what the weather and sidewalk conditions were like at the time of the accident, namely, that there was no accumulated snow and the sidewalks were not slippery or hazardous.
Mr. Adusei-Peasah's claims for accident benefits, approximately $3,400 for attendant care from March 16 to May 31, 2004 and housekeeping benefits from March 16, to September 2004, were set down to be heard with the Preliminary Issue. At the start of the arbitration hearing, counsel for the TTC requested that the arbitration be bifurcated and that the issue of disability and entitlement for benefits should be dealt with separately from the Preliminary Issue of whether Mr. Adusei-Peasah was on the bus at the time of the accident.
Despite the fact that I agreed to TTC's request to separate the Preliminary Issue from the issue of entitlement issue, TTC cross-examined Mr. Adusei-Peasah quite vigorously and extensively on his alleged accident-related injuries, the evidence of which only became available to the TTC after it had denied Mr. Adusei-Peasah's claim.
Having agreed not to deal with the issue of entitlement, nevertheless, for the sake of completeness, I will deal with TTC's submissions on Mr. Adusei-Peasah's alleged accident- related injuries insofar as it affects his credibility in regard to whether he was a passenger on the bus at the time of the accident.
For the following reasons, I give very little weight to TTC's allegations that Mr. Adusei-Peasah was not credible in reporting his accident-related injuries so as impugn his credibility as to whether he was a passenger on the bus that was involved in the accident.
In his statement to the TTC on May 13, 2004, Mr. Adusei-Peasah stated that on the Thursday after the accident he called Dr. Ampofo and made an appointment with him the following week. He could not remember which day this was. Dr. Ampofo's disability certificate of April 20, 2004 states that he first saw Mr. Adusei-Peasah for a post accident examination on March 22, 2004. This is consistent with Mr. Adusei-Peasah's statement that he saw his doctor a week after the accident.
TTC, however, submits that the March 22, 2004 date that Mr. Adusei-Peasah alleges he saw Dr. Ampofo is not reflected in Dr. Ampofo's clinical notes and records. Dr. Ampofo's clinical notes for this date are handwritten, but the date is a printed stamped date. Although Mr. Adusei-Peasah saw Dr. Ampofo on March 22, 2004, there is no mention of the car accident under this date. The next page in the clinical notes, which is date stamped March 26, 2004, states, "Also TTC accident 15/3/04" and gives a description of the accident and Mr. Adusei-Peasah's symptoms.
TTC submits that this is proof that Mr. Adusei-Peasah is not credible because he did not report his accident in a timely fashion to his family doctor. I disagree.
While the exact date of when Mr. Adusei-Peasah first saw Dr. Ampofo post accident is not clear, what is clear is that Mr. Adusei-Peasah saw Dr. Ampofo a number of times for accident-related injuries. The clinical notes and records show that post accident Mr. Adusei-Peasah saw Dr. Ampofo regarding his injuries from the accident on March 26, 27, and April 5, 17 and 23, 2004. Also recorded in notes is a visit in May 2004 where the day is not clearly printed. In addition, Dr. Ampofo sent Mr. Adusei-Peasah for x-rays on March 31, 2004, recommended physiotherapy and provided a disability certificate on April 20, 2004.
I find that Dr. Ampofo's clinical notes and records clearly indicate that Mr. Adusei-Peasah saw Dr. Ampofo a number of times for accident-related injuries.
The fact Mr. Adusei-Peasah may have seen Dr. Ampofo either seven or ten days after the accident is not so unreasonable that it would impugn his credibility. It is important to note that Mr. Adusei-Peasah has no control of what Dr. Ampofo, or any other doctor, writes in his/her clinical notes and records. Accordingly, for these reasons, I find that Mr. Adusei-Peasah's multiple visits to his family doctor at a reasonable time after the accident to be consistent with his claim that he was a passenger on the bus that was involved in an accident.
Post accident, Mr. Adusei-Peasah saw a urologist on April 14, 2004 regarding his prostate; a neurologist on June 16, 2004 regarding chronic burning sensation in his feet; another neurologist on June 28, 2004 for his diagnosis of neuropathy; his chest surgeon on July 13, 2004 as a follow up to surgery he had to remove a growth on his chest, ten months previously; and a doctor of Geriatrics and Internal Medicine on July 28, 2004.
TTC submits that Mr. Adusei-Peasah did not mention to any of these specialists that he was injured in a bus accident and that he needed attendant care as a result of the accident. Accordingly, TTC submits that Mr. Adusei-Peasah's claim that he suffered injuries as a result of the accident is not credible, and therefore his credibility is impugned regarding whether he was in fact involved in an accident. I disagree.
First, Mr. Adusei-Peasah's claim for attendant care was only to May 31, 2004. Except for his urologist, his other visits are all after May 31, 2004 when he no longer needed attendant care.
Second, I accept as a plausible answer Mr. Adusei-Peasah's reason for not telling the specialists that he was in an accident was because he was seeing them for a non-accident reason. I accept this as a plausible answer, especially in the light of what Dr. Leslie Goldenberg, a doctor of Geriatrics and Internal Medicine, stated in her report dated July 28, 2004.
In her report, Dr. Goldenberg notes that Mr. Adusei-Peasah "provides very little, useful information"... "He reports that for 20 years, he has had burning of the feet which have gotten worse in the last year . He is a non-smoker, non drinker. I cannot extract any further useful history." This observation, that Mr. Adusei-Peasah is reticent in describing his medical problems, would be consistent with Mr. Adusei-Peasah's testimony with his belief that he did not need to report his accident-related injuries when seeing a specialist for a non-accident reason.
If in fact, as TTC posits, Mr. Adusei-Peasah was pretending to be injured to obtain accident benefits, it would certainly have been to his advantage to report to the many doctors that he saw that he had been injured in a car accident. He did not. Accordingly, I accept Mr. Adusei-Peasah's plausible response that he did not feel he needed to report his bus accident to the specialists that he saw, because he was seeing them for non accident-related reasons.
I also give little weight to TTC's assertion that Mr. Adusei-Peasah did not advise TTC about his involvement in the accident in a timely manner. Although Mr. Adusei-Peasah testified that he believes he had advised TTC about the accident before March 31, 2004, even if I were to accept TTC's position that he only advised TTC about the accident on March 31, 2004, I note that this is only 16 days after the accident. This is not an unreasonable delay.
Although pursuant to subparagraph 32(2)(a) of the Schedule, which states that "The insurer shall promptly provide the person with, (a) the appropriate application forms," I note that TTC did not provide the application forms to Mr. Adusei-Peasah until April 15, 2007, 16 days after he had advised the TTC that he was involved in the accident. Nevertheless, Mr. Adusei-Peasah sent in his application for benefits well within the time limits required by the Schedule.
Subsection 32(3) requires an applicant to submit an application to the insurer within 30 days of receiving the application forms. In this case, Mr. Adusei-Peasah was able to obtain the application forms from his counsel before he received the application forms from the TTC. Consequently, Mr. Adusei-Peasah sent in his application to the TTC, on April 2, 2004, two days after he reported the accident to TTC. Accordingly, for these reasons, I find that Mr. Adusei-Peasah's application for accident benefits was well within the time limits required by the Schedule and does not impugn Mr. Adusei-Peasah's credibility as whether he was on the bus at the time of the accident.
TTC further submits that a witness, Emmanuel Baffoe, who testified on Mr. Adusei-Peasah's behalf, was not credible and therefore Mr. Adusei-Peasah's credibility was impugned regarding whether he was on the bus as a result of the accident. I disagree.
Mr. Baffoe, whose first language is Twi, testified without an interpreter in support of Mr. Adusei-Peasah's claim that Mr. Adusei-Peasah was on the bus at the time of the accident. Mr. Baffoe testified that at the time of the accident, which he identified to be at Jane and Driftwood, he was standing in the middle of the bus by the back door, when the car hit the bus. He said that before debarking he noticed Mr. Adusei-Peasah coming from the back of the bus with "the hands on his back neck." He again noticed Mr. Adusei-Peasah crossing the street "holding the hands on his back neck." He said he kept watching Mr. Adusei-Peasah because he thought he might be seriously injured.
Mr. Baffoe testified that when he got off the bus he noticed a white Honda had hit the bus. He stated that after the accident he continued to his destination. He said he was not injured in the accident and had not made an accident benefit claim.
Mr. Baffoe testified that sometime in February 2005 he saw Mr. Adusei-Peasah at the Sheridan Mall, which was not too far from his house. He said he recognized Mr. Adusei-Peasah because he was wearing the same jacket that he had on at the time of the bus accident. He approached Mr. Adusei-Peasah, who did not recognize him, and asked him how he was as a result of the accident. During the conversation Mr. Baffoe told Mr. Adusei-Peasah if he needed his assistance in his claim, he could call him.
On October 11, 2005, Mr. Baffoe wrote a letter in support of Mr. Adusei-Peasah's claim that he was on the bus at the time of the accident. The letter was passed on to the TTC by Mr. Adusei-Peasah's counsel. After not being able to reach Mr. Baffoe by phone, and without previously advising Mr. Baffoe, on October 28, 2005, Mr. Ashbourne paid a visit to Mr. Baffoe. Mr. Baffoe was not at home. On November 7, 2005, Mr. Ashbourne wrote to Mr. Baffoe and asked Mr. Baffoe to contact him. Mr. Baffoe called him on November 11, 2005 and left a voice mail. Mr. Ashbourne returned the call on November 15, 2005 and left a voice message for Mr. Baffoe to call back. Mr. Ashbourne testified that Mr. Baffoe did not call back and there was no further follow up.
TTC submits that Mr. Baffoe is not a credible witness and, consequently, Mr. Adusei-Peasah's credibility is impugned on his claim to have been a passenger on the bus at the time of the accident.
First, TTC submits that Mr. Baffoe was not credible when Mr. Baffoe testified that he "saw" the car hit the bus. TTC points out that Mr. Baffoe's evidence was that he was standing in the middle of the bus when it was hit and consequently he could not have in fact seen the bus being hit. Second, it submits that Mr. Baffoe, in his letter of October 11, 2005 wrote that he saw Mr. Adusei-Peasah holding his back after the accident but at the hearing he testified that Mr. Adusei-Peasah was holding his neck after the accident. Third, in his letter Mr. Baffoe said the police were there when he saw Mr. Adusei-Peasah leave the bus which was contrary to what Mr. Adusei-Peasah said. Fourth, TTC submits Mr. Baffoe did not know that there was a significant weather condition at the time of the accident. And fifth, that it was not plausible that Mr. Baffoe bumped into Mr. Adusei-Peasah in February 2005 in the Sheridan Mall.
For the following reasons I give little weight to TTC's submission that Mr. Baffoe's testimony impugns Mr. Adusei-Peasah's credibility.
First, I give very little weight to TTC's submission that Mr. Baffoe was not a credible witness because he said he "saw" the bus hit in the back while he was standing in the middle of the bus. The transcript of Mr. Baffoe's testimony clearly shows that Mr. Baffoe is not articulate in the English language. His description of the accident in examination-in-chief at page 29 of the Transcript was as follows
A. I'm standing. I saw a hit. Hit. A car hit back of the bus.
Q. And how did that hit feel to you?
A. Well, I just gripped the bar, so I just push a little bit forward.
Q. But you felt the impact?
A. Yeah. So - yeah.
The Oxford Concise Dictionary defines, in part, the word "see" (past tense "saw") not only to mean "discern by use of the eyes; observe; look at;" but to also mean "discern mentally; understand." In my view, Mr. Baffoe's testimony can easily be seen to mean that Mr. Baffoe "understood," that the bus was hit in the back, as opposed to his literally seeing the car hit the bus while he was standing in the middle of the bus.
Second, I do not find the alleged contradictions between Mr. Baffoe's letter of October 11, 2005 and his testimony impugns Mr. Adusei-Peasah's credibility. I first note that Mr. Baffoe was able to describe where the accident happened, how the accident happened, and the model of the car that hit the bus. As well, his testimony that he saw Mr. Adusei-Peasah "holding the hands on his back neck" is consistent with Mr. Adusei-Peasah's testimony that he felt the impact on his neck, a vulnerable spot, as he had previously broken his neck.
Taking into consideration that the letter of October 11, 2005 was written some 18 months after the accident and the fact that English is not Mr. Baffoe's first language, I find that when balancing the totality of the evidence, where the letter says "After the police arrived I saw a man crossing the street holding his back ... " as opposed to his testimony where he said "the hands on his back neck" not to be so material a contradiction that it would impugn Mr. Adusei-Peasah's credibility that he was on the bus at the time of the accident.
Third, I give little weight to TTC's submission that Mr. Baffoe did not get the weather conditions right for that day. I find Mr. Baffoe's account of the weather and ground conditions that there was "no snow and not too much dry" to be consistent with Mr. Adusei-Peasah's and the bus driver's evidence, that there was no snow on the ground.
Finally, I find it well within the realm of possibility that Mr. Baffoe, who lived near the Sheridan Shopping Center where Mr. Adusei-Peasah also shopped, could cross each other's path. Although Mr. Adusei-Peasah did not recognize Mr. Baffoe, I find it plausible that Mr. Baffoe could remember Mr. Adusei-Peasah from the bus accident.
Accordingly, for these reasons, I find that Mr. Baffoe's evidence does not impugn Mr. Adusei-Peasah's credibility with respect to his being on the bus at the time of the accident.
CONCLUSION
In summary, for the following reasons, I find that Mr. Adusei-Peasah has provided sufficient evidence, which was plausible, detailed and consistent, to show that, on a balance of probabilities, it is more likely than not, that he was a passenger on the bus when it was involved in an accident on March 15, 2004.
First, Mr. Adusei-Peasah lived a few minutes away from the bus stop. It would therefore be very plausible that Mr. Adusei-Peasah would more likely than not board a bus at the Driftwood bus stop.
Second, it is also plausible that the alleged "squall " came and went so quickly, that Mr. Adusei-Peasah, who lives so close to the bus stop, would have missed the alleged flurries.
Both Mr. Adusei-Peasah and Mr. Baffoe's evidence about the weather and the state of the sidewalk at the time of the accident is consistent with the bus driver's testimony and his accident Occurrence Report, namely, that there was no snow on the sidewalk when they debarked from the bus.
Third, Mr. Adusei-Peasah provided the TTC with a very detailed statement from memory on May 13, 2004, wherein he was able to describe where he sat on the bus, how the impact occurred, and the model and colour of the car that hit the bus. As well, he was able to describe what the bus driver looked like and was able to provide the number of the bus, 6107, that was involved in the accident.
Fourth, Mr. Adusei-Peasah's family doctor's clinical notes show that after the bus accident he visited his doctor a half a dozen or more times and was referred for x-rays and treatment regarding injuries he received in the accident.
Accordingly, for all of these reasons, I find that Mr. Adusei-Peasah had provided TTC, at the time of its denial of his claim for accident benefits, with consistent, detailed evidence to support the fact that it was more likely than not that he was a passenger on the bus at the time of the accident on March 15, 2004. Accordingly, I find that pursuant to subsection 2(1) of the Schedule Mr. Adusei-Peasah was involved in a car accident on March 15, 2004
EXPENSES:
If needed I may be spoken to on the issue of expenses within 30 days of receipt of this decision.
February 2, 2007
Joyce Miller Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 16
FSCO A05-000865
BETWEEN:
MARTIN ADUSEI-PEASAH 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:
Mr. Adusei-Peasah was injured as a result of an "accident" as defined in subsection 2(1) of the Schedule.
If needed, I may be spoken to on the issue of expenses within 30 days of receipt of this decision.
February 2, 2007
Joyce Miller Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Mr. Adusei-Peasah testified that he believed his doctor's secretary filled out the forms for him as he cannot write.