Donna Pilleggi v. TTC Insurance Company Limited, 2010 ONFSCDRS 44

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 44

FSCO A09-000881

BETWEEN:

DONNA PILLEGGI

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller

Heard: November 5, 6 and December 21, 2009 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Matthew Consky for Ms. Pilleggi

Steve Anderson for TTC Insurance Company Limited

Issues:

The Applicant, Donna Pilleggi, alleges that on April 11, 2007 she was injured as a result of a motor vehicle accident. She applied for statutory accident benefits from TTC Insurance Company Limited (“TTC”) payable under the Schedule.¹ TTC denied her application for benefits n the basis that Ms. Pilleggi was not injured as a result of a motor vehicle accident. The parties were unable to resolve their disputes through mediation, and Ms. Pilleggi 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 Ms. Pilleggi injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

Ms. Pilleggi was not injured as a result of an “accident” as defined in section 2(1) of the Schedule.

EVIDENCE AND ANALYSIS:

(1) Ms. Donna Pilleggi's Testimony

Ms. Pilleggi is 50 years old and has three grown children, two sons and a daughter. Ms. Pilleggi alleges that on April 11, 2007 she was injured as a result of an incident on a TTC bus.

Ms. Pilleggi testified that at the time of the alleged incident she worked for Executive Catering. The business was both a catering business as well as a coffee shop that served breakfast and lunch. She stated her job included preparing food platters and working as a cashier.

Ms. Pilleggi testified that on April 11, 2007, she bought a small rug (2 feet by 3 feet) at a Dollar Store on St. Clair Avenue. She testified that she had gone to the store at about 5:30 p.m. after having coffee with a friend, Louisa Morrel, at her home. She stated that after her purchase, at 6:15 p.m., she boarded the 29 Dufferin bus, going southbound to return home. She stated that the bus ride to her home was usually 5 minutes; however, because of heavy traffic it took 10 minutes to get to her stop at Chandos Street.

Ms. Pilleggi testified that she carried the rug, which was rolled up in a plastic bag, in her left hand. She said that she carried her knapsack on her right shoulder.

Ms. Pilleggi testified that when she got on the 29 bus on Dufferin Street she noted the bus number as being 9517. She stated that noting bus numbers was a tendency she had when boarding buses. She also noted that the bus driver was an “elderly man.” She further stated that there were no seats in the bus and that she stood close to the bus driver, beside a pole.

Ms. Pilleggi testified that when her stop approached she pushed the stop button. She stated that there was no one in front of her and the doors were open when she debarked. She was the only person who exited at the stop. No one was waiting to come in.

In direct examination, Ms. Pilleggi reiterated that the bag with the rug was in her left hand and her knapsack was on her right side as she was debarking. Without describing where the handles on the door were located, on which door her bag got caught, or how her bag got caught in the handles, Ms. Pilleggi testified that the rug got stuck in the yellow handicap handle of the bus.

In cross examination Ms. Pilleggi gave more details about the alleged incident and changed her testimony regarding which hand held the rug and contradicted her direct testimony and her May 2, 2007 statement to the TTC.² In cross examination Ms. Pilleggi described that the door handles were on the back of the door and, when opened, faced into the bus – with the left handle facing the windshield and the right handle facing the passengers on the bus. Ms. Pilleggi testified that the bag got stuck in the door handle on the right hand side of the bus.

When asked to explain how, if she was carrying the bag in her left hand, did the bag get stuck on the right-hand side when she exited, Ms. Pilleggi testified:

Let me explain that. In between when I'm trying to come out, maybe it got switched over to that side, but I know that side [the right side] is where my rug got stuck. [emphasis added]

Ms. Pilleggi testified that when she stepped out of the bus she left her hands in the bus trying to get the bag which was still stuck. Ms. Pilleggi stated that when she tried to pull the rug out, the bus driver had a clear view of her. Ms. Pilleggi did not explain in direct or re-direct examination why, if the bag was stuck in the handle on the back of the door facing into the bus that, she would step outside to try and remove it.

Ms. Pilleggi testified that with her hands still in the bus, the driver, who had a clear view of her, closed the doors and began to drive off. She stated that the door had closed on the area between her wrists and the first quarter of her forearms.

Ms. Pilleggi testified that the bus began to move yielding into the next lane and estimated the speed of the bus as 20 miles an hour. She stated the bus pulled her about 15 to 20 feet. She stated that she was running as fast as the bus was going and was screaming for the bus driver to open the doors.

Ms. Pilleggi testified the bus finally stopped in front of a variety store. She said the bus driver opened the door and asked if she was “okay.” She stated “I was in shock. That's all he did, he closed the door and left. Well, I took my parcels out.”³ Ms. Pilleggi did not provide an explanation of how she finally extracted her rug without entering the bus, given that the rug was allegedly stuck in the right handle of the door that, when open, faced into the bus.

Ms. Pilleggi testified that after the bus left she entered the corner variety store and asked the clerk if he had seen what happened. She testified that he said he had not seen what had happened but he had heard her screaming.

In a statement given to the TTC on May 2, 2007, Ms. Pilleggi stated “There were no witnesses outside the bus.”⁴

In a handwritten statement to the TTC on May 25, 2007, Ms. Pilleggi wrote “I stop [sic] right in front of the variety store called QUICK PICK VARIETY. THE INDIAN MAN SEEN WHAT HAPPEN HE TOLD ME. HE ASK ARE YOU OKAY.” [capitalized in the original] Ms. Pilleggi did not call the variety store clerk to support her story.

Ms. Pilleggi testified that she arrived home around 6:30 p.m. She stated she was hysterical and was crying at the door. Her daughter, who was at home, asked her what happened. She stated “I told her the story of what happened to me, that the bus dragged me and the bus finally stopped in front of the variety store.”⁵

Ms. Pilleggi testified that when she got home she wrote down the bus number, 9517, on a piece of paper. Ms. Pilleggi stated that she did not call the police because she thought it was a TTC matter. She said she took some Tylenol and went to see her doctor on Thursday. The next day, on Friday, April 13, 2007, she went to the TTC to make a statement.

A further statement was taken on May 2, 2007 by a TTC Task Claims Adjuster, Ms. Marianne Boccongelle. Ms. Pilleggi stated that she hand wrote the four page statement that was later typed up. The handwritten statement was not signed by Ms. Pilleggi, only the typed version. When Ms. Boccongelle testified she stated that it was she who had recorded the handwritten statement.

Ms. Pilleggi testified that a month after the incident her doctor booked an appointment for physiotherapy. She stated she began physiotherapy on her left arm at Toronto Sports Medicine but had to stop because TTC was not paying for the treatment.

Ms. Pilleggi testified that after the alleged incident, she went back to work. She stated that her endurance and ability to do things at work got slower and slower and she was not able to do her tasks like she did before the incident.

Ms. Pilleggi testified that six months after the incident on the bus, she collapsed at work. She stated that in the middle of her shift, her legs gave out on her and she had to be taken to the hospital. She stated that she was bedridden for five months and was not able to return to work.

Ms. Pilleggi attributes the collapse at work and her subsequent disability to the incident on the bus in April.

(2) Ms. Ashley Pilleggi's Testimony

Ms. Pilleggi’s daughter, Ashley Pilleggi, (hereinafter referred to as Ms. A. Pilleggi) testified on behalf of Ms. Pilleggi.

Ms. A. Pilleggi did not witness the event. She testified as to what her mother had told her. She said that when her mother came home circa 6:30 she was crying and hyperventilating. Both her wrists were swollen.

Ms. A. Pilleggi testified that as a result of the alleged incident on the bus Ms. Pilleggi could no longer do her housework or activities of daily living. Ms. A. Pilleggi stated that she took over the cooking, cleaning, laundry, taking out the garbage and grocery shopping. The only thing her brothers helped her with was the grocery shopping. She said her mother complained a lot about her wrists and back. “... she couldn't go out any more, it was hurting her too much, she just wanted to be bedridden.”⁶

Under direct testimony Ms. A. Pilleggi stated that on the morning of the alleged incident her mother’s health was “perfectly fine.” She had no problem with her hands or forearms.

Ms. A. Pilleggi further testified that one month prior to the alleged incident her mother did not have any problems doing her housework or daily activities. However, under cross-examination Ms. A. Pilleggi admitted that the week before the alleged incident her mother was taken twice, by ambulance, to the hospital. She stated that one time was because her mother had had a fight with her boyfriend and had an anxiety attack. The second time was because her potassium was low.

Ms. A. Pilleggi stated that she remembered the alleged incident more clearly than her mother being taken to the hospital twice the week before because “... that week, [Ms. Pilleggi] got in the accident, my cousin got murdered. I remember that more clearly than her having a fight with her boyfriend and having an anxiety attack.”⁷

(3) Ms. M. Boccongelle's Testimony

Ms. Boccongelle, is a Task Claims Adjuster who has worked with the TTC for the past twelve and a half years. Ms. Boccongelle testified that she interviewed Ms. Pilleggi on May 2, 2007 and handwrote the statement taken from Ms. Pilleggi. This statement was typed up and sent to Ms. Pilleggi for verification. On May 25, 2007, Ms. Pilleggi signed and returned the statement. In addition to a handwritten note attached to the typed statement, Ms. Pilleggi made some corrections on the typed copy, which included a change in the date of the incident from April 9 to April 11, 2007.

Ms. Boccongelle stated that on investigation she discovered the bus number, 9517, that Ms. Pilleggi had given was not in service on the day she alleges the incident to have occurred. Out of an abundance of caution Ms. Boccongelle testified that she investigated every bus on Dufferin Street that day, who was driving it, what the vehicle number was, what direction the bus was travelling at the time of the alleged occurrence, 6:25 p.m., and the physical descriptions of the operators driving the buses. She pinpointed ten drivers, having eliminated one driver who was black. These drivers were interviewed by their supervisors. Their reports were passed on to Ms. Boccongelle. The drivers all indicated they had no knowledge of the alleged incident. She then decided to interview the driver who was closest in time.

Ms. Boccongelle determined from this interview that this driver had no knowledge of the alleged incident. She noted that the configuration of the exit on the bus was different than Ms. Pilleggi's description. It had stairs as opposed to being a low level bus without stairs which was Ms. Pilleggi’s evidence. She also noted that the bus driver did not fit Ms. Pilleggi’s description.

It was pointed out in cross-examination that according to the records another bus – Run Number 22 - had arrived at the Bloor and Dufferin station at 6:21 p.m., and that the driver of this bus had not been interviewed. In her submissions, Ms. Pilleggi submitted that TTC’s investigation was “fatally flawed” because it failed to interview the bus driver of Run Number 22.

ANALYSIS AND FINDINGS

The burden of proof rests with Ms. Pilleggi to show that on a balance of probabilities she was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

Pursuant to section 2(1) of the Schedule an accident is defined as:

... an incident in which the use or operation of an automobile directly causes an impairment ...

While there may have been an incident on April 11, 2007 where Ms. Pilleggi injured her forearms, I find that she did not present any credible, objective, evidence that this incident occurred on a TTC bus. Succinctly, I find that Ms. Pilleggi failed, on a balance of probabilities, to prove that she was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

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’ 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 inconsistencies and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.

In the case of Faryna v. Chorny⁸, Justice O’Halloran made the following remarks in assessing the credibility of an interested witness which I agree with:

... The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

In the case of Erskine and Personal Insurance Company of Canada⁹ Arbitrator Skinner held that “...the uncorroborated evidence of an interested party is not sufficient to meet the onus of proving the location of the incident. This is particularly so when that testimony is marked by inconsistencies on important points.” I agree with these comments and find them applicable to the present case.

On the facts of this case, I find that Ms. Pilleggi did not present any objective evidence that would corroborate her version of the alleged incident. Accordingly, for the following reasons, I find that Ms. Pilleggi’s uncorroborated evidence was not credible. I find that her evidence was, vague, contradictory and implausible.

Aside from the significant contradiction, not reasonably explained, as to how the plastic bag suddenly moved, under cross examination, from her left hand into her right hand, I find that Ms. Pilleggi completely failed to provide either a reasonable or plausible description of the alleged incident. I find that she failed to give any details as to the size or width of the handles, whether they were bolted into the door from both ends or one end and most importantly, how the bag with the rug got caught in the door handle.

Specifically, Ms. Pilleggi testified that when she approached the doors, they were already open, with the handles now facing into the bus. However, she failed to describe in any reasonable detail how the rug managed to get stuck in the handle on the door facing into the bus when the doors were already open as she approached towards the exit.

More specifically, and what strikes me as the most implausible part of her story, is why if the rug is stuck in the handle facing into the bus, would Ms. Pilleggi step off the bus onto the road to pull the rug out of the handle.

Moreover, once the bus stopped with her arms allegedly caught in the door and the door opened, Ms. Pilleggi failed to explain how she got her parcel free. Her testimony was that when she did not answer the bus driver's question if she was “okay”, he immediately closed the door. She stated “I was in shock. That's all he did, he closed the door and left. Well, I took my parcels out.”¹⁰ How she freed her bag allegedly stuck in the handle facing into the bus without getting on the bus was not explained.

Also most implausible in Ms. Pilleggi's description of the alleged incident is that the handles, which are supposed to assist one when getting on or off the bus, according to Ms. Pilleggi’s description were facing in a direction, i.e. into the windshield and into the bus that would be of no use for its alleged purpose.

Ms. Pilleggi provided no objective evidence to support her description of the incident. Of significance is the fact that Ms. Pilleggi wrote to the TTC on May 25, 2007 to say that the clerk in the variety store had seen the alleged incident. Aside from the fact that this note contradicts her testimony that the clerk had not seen the alleged incident but merely heard her screams, she failed to produce the clerk as a witness to support her story of this alleged incident. No explanation was provided as to why he was not called. Accordingly, I draw an adverse inference from this failure.

I give little weight to Ms. Pilleggi's daughter's evidence. As Ms. Pilleggi’s daughter I do not find her evidence to be of a disinterested party. She was not a witness to the alleged incident and merely described it as her mother told her.

I did not find Ms. A. Pilleggi’s testimony credible regarding her mother’s inability to do any housekeeping or activities of daily living. Ms. A. Pilleggi’s testimony was that “...[her mother] couldn’t go out any more, it was hurting her too much, she just wanted to be bedridden¹¹”, is diminished by the fact that Ms. Pilleggi testified that she returned to work at Executive Catering for the following six months after the alleged incident. If Ms. Pilleggi was as debilitated as Ms. A. Pilleggi claims it is not plausible that she would be able to return to work at Executive Catering, which is a physical job, that included preparing food platters and/or working on the cash.

I give very little weight to Ms. Pilleggi's submission that TTC’s investigation was “fatally flawed” because Ms. Boccongelle did not interview the bus driver of Run Number 22. The fact is according to the document provided by the TTC that indicates the location of buses at a certain time, Run Number 22 was nowhere near the vicinity at the time in which Ms. Pilleggi testified the incident took place, i.e., 6:25 p.m. In any case, the burden of proof in this case rests with Ms. Pilleggi to provide credible evidence that the incident had occurred and not with the TTC to show that it had not occurred. On the facts of this case, Ms. Pilleggi failed in her burden of proof.

In summary, I find that Ms. Pilleggi’s uncorroborated evidence of the alleged incident was vague, contradictory and implausible. Accordingly, I find that Ms. Pilleggi failed on a balance of probabilities to prove that she was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

EXPENSES:

I may be spoken to on the issue of expenses if the parties cannot agree within 14 days of receipt of this decision.

April 9, 2010

Joyce Miller

Arbitrator

Date