TTC Insurance Company Limited v. Victor Mariano, 2008 ONFSCDRS 67

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 67

Appeal P06-00032

OFFICE OF THE DIRECTOR OF ARBITRATIONS

TTC INSURANCE COMPANY LIMITED

Appellant

and

VICTOR MARIANO

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Steve Anderson for the TTC

Marilyn P. Shupak and Golan Mergui for Mr. Mariano

HEARING DATE:

July 11, 2007, with additional written submissions received October 29 and November 5, 2007

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. TTC Insurance Company Limited’s appeal of the arbitration decision dated September 15, 2006 is dismissed.
2. If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 28, 2008

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

TTC Insurance Company Limited (“the TTC”) appeals the arbitrator’s decision that Mr. Mariano was injured as a result of an “accident” as defined in s. 2(1) of the SABS–1996.¹

II. BACKGROUND

On May 5, 2005, at 5:20 a.m., Mr. Mariano boarded Toronto Transit Commission Bus 29 at the corner of King Street going northbound on Dufferin Street. He was intending to change buses at Bloor Street, but when the bus arrived at Bloor Street, it could not pull into the bus bay because of an illegally parked truck. Accordingly, he and the other passengers were discharged onto the street and had to walk to the curb. The arbitrator described Mr. Mariano’s testimony about what happened next:

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.

The arbitrator concluded that this incident met the definition of accident – “an incident in which the use or operation of an automobile directly causes an impairment” – on the following basis:

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,² 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.

III. ANALYSIS

The definition of accident in the SABS continues to be the subject of much litigation. The issue is whether the arbitrator erred in law in her application of the law to the evidence before her. In that regard, she relied on a number of principles. I do not find it necessary to review them all in light of the recent appeal decision Lombard General Insurance Company and Webb, (FSCO P06‑00038, October 5, 2007), which dealt with similar issues and in which the delegate commented upon the arbitrator’s decision in this case.

As discussed by the arbitrator, the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, compared the current definition limiting the meaning of accident to use or operation that “directly causes” an impairment with the previous definition that included use or operation that “indirectly or directly” caused an impairment. The court noted that the new definition significantly narrowed the definition of what could be considered an accident. The most relevant arbitration cases the arbitrator considered were her own decision in Mahadan and Co-operators General Insurance Company, (FSCO A00-000489, March 15, 2001), and the arbitration decision in Pinarreta and ING Insurance Co. of Canada, (FSCO A04-001734, November 17, 2005). In the former case, Mr. Mahadan was found not to have been in an accident when, after closing the trunk of his car and starting to walk away, he tripped and fell in a crack in the pavement. In the latter, conversely, Mrs. Pinarreta was found to have been in an accident when she slipped and fell on a snow bank very shortly after getting off a bus. The arbitrator found that Mr. Mariano’s situation was closer to that of Mrs. Pinarreta than Mr. Mahadan and concluded Mr. Mariano had been in an accident.

In a later decision, the arbitrator in Webb and Lombard General Insurance Company of Canada, (FSCO A06‑001004, November 10, 2006), found that a taxi passenger suffered an accident when she slipped and fell after exiting the taxi. He also suggested that Mahadan might not be decided in the same way today. This led to the TTC’s submission that unless the decision in this case is overturned, arbitral case law will deviate from that set out by the Court of Appeal in Chisholm, especially since the court approved of the Mahadan decision. Webb was appealed, however, and the delegate in the decision I referred to above, as part of finding that Webb was wrongly decided, concluded that Mahadan was indeed correct. As a result, the case law at the Commission is in line with that of the Court of Appeal.

The delegate also noted that the arbitrator in Mahadan had drawn a “fairly bright line,” leading the TTC to submit that the delegate approved a bright line test where use or operation ends the moment the claimant leaves a vehicle. I do not agree. As discussed below, the delegate emphasized that drawing the line always involves a judgment call.

The delegate also referred to Pinarreta and Mariano with approval, a topic to which I will return.

The heart of the dispute in the case before me is that the TTC submits the arbitrator erred and should have found Mr. Mariano’s situation was essentially the same as Mr. Mahadan’s. As part of its argument, the TTC submits that the arbitrator erred in failing to give sufficient reasons when she wrote that the Mahadan case could be distinguished. It submits that the arbitrator did not explain the statement and relied on the delegate’s decision in TTC Insurance Company Limited and Kanareitsev, (FSCO P05-00021, November 2, 2006)³ on the sufficiency of reasons. The arbitrator wrote: “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.” Over the next couple of pages, the arbitrator then set out how the facts in Mariano were similar to those in Pinarreta. In doing so, I find that she was elucidating exactly how the Mahadan case was distinguishable. Seen in the context of the decision and the passage in question, I find that the arbitrator did give sufficient reasons to distinguish Mahadan.

To return to the Webb appeal decision, the delegate issued it after the appeal hearing in this case, and the parties then filed further submissions on its relevance. The TTC submits that the delegate was correct in overturning the Webb arbitration decision, but incorrect in coupling Mariano with Pinarreta. I find though that the TTC fails to appreciate the analytical framework within which the delegate set the relevant case law – the beginning of the journey, the interruption of the journey and the end of the journey. The delegate noted that the interruption of journey cases represent a special and difficult category,⁴ which I do not need to consider here. As for the beginning and end, the insurer in Webb – and the TTC here – submitted that the same law respecting the beginning of journey cases should apply to the end of journey cases, referring to the case of Fedrizzi and TTC Insurance Company, (FSCO A97-000839, March 25, 1998) in particular. As the delegate noted in Webb, Fedrizzi on the contrary was a beginning of journey case that she decided as an arbitrator where the claimant slipped on slick TTC property on the way to a streetcar – and the streetcar’s only role was as the claimant’s destination. She concluded this was not enough to bring the incident within the scope of coverage under the old “directly or indirectly” test. She went on to say in Webb that the application of the definition of accident inevitably involves a judgment call, judging its outer limits is a line-drawing exercise, and drawing the line for the beginning of “use or operation” is easier than for its end:

A person may trip while getting off a bus, for example, but stumble several steps before falling, even if surface conditions play no part in the incident, as in Pantazis.⁵ Since use or operation of the bus started the chain of events, the incident is more likely to be found to be an “accident,” all else being equal, than if the person had tripped on the way to the bus, as in Pangolino⁶ or Fedrizzi, when surface conditions or passenger activity, for example, are more likely to be what started the causal chain.

I agree with this analysis. It also explains why it was stated in Fedrizzi that the placement of the streetcar in relation to the designated stop made no difference, as the journey had not yet begun. The placement of the bus was relevant in this case, as I will note in the following paragraph. I am therefore not persuaded that Fedrizzi is relevant to the facts in this end of journey case or that the arbitrator erred in not applying that decision.

The TTC submits that the delegate in Webb also erred when she wrote as follows regarding the end of journey cases:

As I read the decisions, the prevailing consensus is that use or operation generally ends when the claimant leaves the vehicle without incident and walks away. However, a different conclusion may be reached where use or operation of the vehicle created or added to the risk that befell the claimant, as found in Pinarreta and Mariano.

The TTC submits that this coupling is incorrect because the claimants in both cases were not equally exposed to an “immediate and obvious hazard.” The TTC submits that this was the test used by the arbitrator in Pinarreta. This is incorrect, as that phrase occurs nowhere in the arbitrator’s decision. The only place the phrase seems to appear is in the decision by the arbitrator in Webb, where he was simply stating the similarities between Pinarreta and Mariano and not setting out some sort of test. Furthermore, the TTC is essentially submitting that, while the delegate in the Webb appeal decision was correct to overturn the arbitrator’s decision, she was incorrect in failing to apply a test from the very decision she overturned. This argument is unconvincing. Accordingly, the placement of the bus was a relevant factor in this end of journey case when its placement added to the risk.

To sum up, I agree with the delegate’s suggestion in Webb that Pinarreta and Mariano are similar to each other and distinguishable from Mahadan. The arbitrator in the case before me correctly noted that the court in Chisholm held that there can be more than one “direct” cause of an injury. I am not persuaded that the arbitrator erred in not considering Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (Ont. C.A.), since it involved very different facts: Ms. Greenhalgh set out on foot from her disabled car and suffered injuries over a long journey on a country road. In this case, it was within the arbitrator’s jurisdiction to determine that Mr. Mariano’s disembark­ation was not yet complete, as he had to walk from the middle of the street to a point of safety. As the delegate in Webb pointed out, the bus created or added to the risk to the claimant, and so the bus remained a direct cause of Mr. Mariano’s injuries. This determination is at most a question of mixed fact and law, and the dispute resolution system deems the arbitrator’s determination of facts to be determinative. I am not persuaded that the arbitrator has reintroduced indirect causation into the law, and I am satisfied that she considered the relevant law and applied it. I therefore have no basis on which to intervene.

The appeal is accordingly dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 28, 2008

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Discussed below.
3. 3Subsequently reversed by the Divisional Court in Kanareitsev v. TTC Insurance Company Ltd. (February 6, 2008), Court File No. DC-060081917-00.
4. 4See the cases listed in footnote 15 of the delegate’s decision.
5. 5Pantazis and TTC Insurance Company Limited, (FSCO A01–001564, September 16, 2002).
6. 6Pangolino and TTC Insurance Company Limited, (FSCO A03–001718, May 20, 2005).