Neutral Citation: 2013 ONFSCDRS 27 FSCO A11-002956

BETWEEN:

EZRA CLARKE Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Deborah Pressman Heard: October 3 and 4, 2012, at the offices of the Financial Services Commission of Ontario in Toronto and by written submissions Appearances: Margaret Gratsias for the Applicant, Mr. Clarke Karen McGuire for TTC Insurance Company Limited (“TTC”)

Overview:

The Applicant, Ezra Clarke, claims that he was injured on a TTC bus on October 23, 2009, when he fell down and allegedly hurt his toe on the underseat of the bus, leading to the amputation of his lower leg several months after this incident. TTC rejected his claim for statutory accident benefits on the basis that Mr. Clarke was not in an “accident” as defined by the Schedule¹, meaning that his injury or impairment was not sustained directly as a result of the use or operation of the bus, but rather that he was involved in a fight with another passenger on the bus. Mr. Clarke applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act² and TTC requested a preliminary issue hearing.

The preliminary issue is:

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

Result:

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

EVIDENCE AND ANALYSIS:

The Definition of “Accident”

Section 2(1) of the Schedule defines the term accident as “an incident in which the use or operation of an automobile directly causes an impairment…”³ This definition raises two questions:

Did the incident arise out of the use or operation of an automobile; and if so,
Did such use or operation of an automobile directly cause Mr. Clarke’s injury?

On a factual basis, the parties agree that a fight took place on the bus between Mr. Clarke and another passenger and that at some point Mr. Clarke lost his balance and fell down. However, the parties disagree on the following:

whether the bus was moving at the time of Mr. Clarke’s fall;
whether the bus was the reason for the fight and Mr. Clarke’s fall;
whether Mr. Clarke injured his toe on the under seat of the bus; and
whether Mr. Clarke’s amputation related to the incident on the bus.

Mr. Clarke claimed that he was not responsible for the fight and that the bus was moving when he fell down. He claimed that his toe came into physical contact with the under seat of the bus and as a result of this contact he developed an infection, which eventually led to the amputation of his right leg below the knee.

TTC submitted that Mr. Clarke was responsible for instigating a fight with another passenger on the bus, and as a result of the fight he lost his balance and fell down and that the bus was not moving at the time of the fall. TTC also submitted that Mr. Clarke did not injure his toe in this incident and that the amputation of his leg is not related to what occurred on the bus because the medical evidence is silent on any injury to the toe, except as it relates to Mr. Clarke’s diabetes several months after the incident.

I find that: (i) there was a fight on the bus between Mr. Clarke and another passenger; (ii) the bus was not moving at the time of Mr. Clarke’s fall; (iii) if he was injured it was because of the fight, and (iii) whatever injury he suffered was not on account of anything that happened on the bus. I so find because Mr. Clarke’s testimony was inconsistent with the cogent evidence provided by the video surveillance, the police report, TTC’s investigation and the clinical notes and records of his treating practitioners. Consequently, I find that Mr. Clarke was not in an “accident” that involved an injury or impairment directly caused by the use or operation of the bus, as defined by the Schedule.

Did this incident arise out of the use or operation of the bus?[^4]

The question is whether the incident Mr. Clarke was involved in arose out of the use or operation of the bus. I find that the incident in question is a fight between two passengers and it cannot be said that the incident arose from the ordinary and well-known activities to which automobiles are put. The evidence supports TTC’s position that Mr. Clarke was involved in an incident that is more appropriately characterized as a fight.⁵ The evidence does not lend support to Mr. Clarke’s claims that the bus was moving at the time of his fall, that he was the victim in this incident or that he was involved in an accident. An examination of all the evidence including the video surveillance, etc. leads me to the following findings of fact.

On the afternoon of October 23, 2009, Mr. Clarke boarded a crowded TTC bus in the neighbourhood of Keele Street and Wilson Avenue. Unable to find a seat, he was compelled to stand in the aisle. An unknown passenger, in his 50’s, also boarded the bus while carrying 2 grocery bags. He bumped into Mr. Clarke as he was making his way to the rear of the bus. Mr. Clarke, believing this brief physical contact was intentional, instigated an unfriendly verbal exchange.

During the verbal exchange, the other passenger threw his crumbled bus transfer at Mr. Clarke and gestured him with a kiss. Mr. Clarke felt provoked and he pushed the unknown passenger several times escalating the confrontation to a violent fight. At one point, the unknown passenger attempted to walk away from the fight but regrettably, on his way to the front door, he touched Mr. Clarke’s neck. Mr. Clarke then chased him, grabbed him and did not allow him to get off the bus. The fight continued with the two punching each other until Mr. Clarke stumbled backward and fell down.⁶

The incident was captured by video surveillance. The importance and usefulness of video surveillance to a trier of fact has been recognized by the Supreme Court of Canada.⁷ The court deemed video surveillance that is of good quality to be relevant and admissible evidence. The court compared surveillance evidence to that of a silent and unbiased witness that is never subject to stress with instant and total accurate recall of all that it observes.

Overall, Mr. Clarke’s inability to recall accurately what happened on the bus diminished his credibility. Mr. Clarke testified that the bus was moving at the moment of his fall. However, it is undeniable from the video that during the fight between Mr. Clarke and the unknown passenger, the bus had stopped moving, and passengers were getting off at the Falstaff Avenue and Keele Street stop. I find as a fact that the bus was completely stopped at the time of Mr. Clarke’s fall.

Mr. Clarke’s case is also weakened by his insistence that he was not responsible for the fight.

He testified that the other passenger was the aggressor in this incident. However, the video clearly shows Mr. Clarke pushing the other passenger several times, as well as pulling him back into the confrontation as he attempts to leave the bus and walk away from the incident. In addition to the evidence provided by the video, there is also other evidence that supports TTC’s position that Mr. Clarke was not the victim in this incident. The police investigation concluded that “the incident appears to be a consensual fight at the least, with the complainant [Mr. Clarke] as the aggressor who loses the fight in the end.”⁸

Mr. Clarke claimed that after his fall his toe came into physical contact with the under seat of the bus. He submitted that the location of the fight and his physical contact with the under seat of the bus satisfied the purpose test, meaning that the incident and injury arose from the use or operation of the bus. I disagree. The case law does not support Mr. Clarke’s position that such elements alone, location and contact, automatically satisfy the purpose test.⁹

The jurisprudence says that it is not enough that a vehicle provides the location, opportunity and motivation for the assault.¹⁰ It is also not enough that Mr. Clarke had physical contact with the interior of the bus to bring this incident into the definition of “accident”. I find that the bus, as the mere location of the fall, and the alleged contact with the interior of the bus, is ancillary to Mr. Clarke being knocked down by the other passenger. In Mr. Clarke’s case, the elements of location and contact are peripheral to the use or operation of the bus.

Therefore, I find that Mr. Clarke does not prove that this incident arose out of the use or operation of the bus and does not satisfy the first question in the definition of “accident” under the Schedule.

Did such use or operation of the bus directly cause Mr. Clarke’s injury?[^11]

Mr. Clarke claimed that the use or operation of the bus directly caused his injury because when he fell down, his toe came into contact with the under seat of the bus and as a result he developed an infection, which led to a below the knee amputation of his right leg.

I find that the use or operation of the bus did not directly cause Mr. Clarke’s injury because the bus was not a dominant feature in this incident. Mr. Clarke’s impairment was caused by a fight, an intervening act which breaks the chain of causation. In addition, Mr. Clarke was unable to link his amputation to the incident on the bus.

Leading cases on causation stand for the principle that one should look to “the aspect of the situation that most directly caused the injuries” and that for an incident to qualify as an accident, an automobile must be a dominant feature in the incident, and not ancillary to it.¹²

I find that the dominant feature of Mr. Clarke’s claim is the assault, the aspect that most directly caused his injury, and not the use or operation of the bus. I find that the bus was ancillary to the incident because it merely provided the opportunity and the location for a fight between Mr. Clarke and the other passenger and, in fact, was not moving at the critical time of this incident. During the assault, Mr. Clarke lost his balance and fell down. His fall may have caused the alleged contact with the under seat of the bus. However, this brief moment of physical contact with the interior of the bus does not prove direct causation and it does not negate the fact that the use or operation of the bus is ancillary to this incident.

A direct cause is a cause, which sets in motion a train of events leading to a result without any later intervening act.¹³ What amounts to a “direct cause” will turn on the facts and circumstances of each case.¹⁴ However, assault cases are relatively clear. In cases involving assaults, it is the assault and not the use or operation of the automobile that causes the impairment. In this case, the assault is the intervening act that is the integral part of this incident and the cause for Mr. Clarke’s impairment.¹⁵

Judges and arbitrators have consistently held that impairments resulting from assaults are not covered under the definition of “accident.”¹⁶ Where, as in this case, the impairment is caused by an assault and there is no continuous use or operation of the bus beyond the assault and the impairment is not caused by ongoing use or operation, the assault is treated as an intervening act that breaks the chain of causation and accident benefits will not be payable.¹⁷

In addition, an assault on a bus cannot be said to be within a normal incident of risk created by the use or operation of a bus. In fact, road rage, typical in situations involving two motorists, has not been found to be within the normal incident of the risk created by the use or operation of a vehicle.¹⁸ Likewise, an overcrowded bus that causes some passengers to become frustrated or aggressive and assault other passengers is not part of the ordinary course of things. The case law on road rage does not lend support to Mr. Clarke’s submissions that bus rage is within a normal incident of the risk created by the use or operation of the bus. In this case, there was no peril or added risk related to the use or operation of the bus.¹⁹

While Mr. Clarke contends that the assault on the TTC bus may have caused some impairment, Mr. Clarke was not able to link this incident to his amputation on December 26, 2009. Any impairment Mr. Clarke may have suffered on the bus with respect to his toe was not raised in the medical evidence until a couple of months after the incident. For example, none of the reports authored by the police, the TTC, or the medical practitioners that attended to Mr. Clarke at the scene or shortly after make any mention of an injury to the toe or contact with the under seat.²⁰ I find it telling that two doctors that physically examined Mr. Clarke’s feet just days after the bus incident do not note any issues related to his toe and do not mention the assault on the bus. Dr. Rudinskas, in her report dated October 27, 2009 noted “he has no edema of his feet” and Dr. Lee, a diabetes specialist, examined Mr. Clarke on October 29, 2009 and noted “feet pulses were normal.”²¹

From a factual perspective, the evidence did not reflect a nexus between the incident on the bus and Mr. Clarke’s impairment because the first mention of an infection to the toe appears on November 10, 2009, in a medical imaging report and again in Dr. Krajewski’s report dated November 26, 2009, where he noted “a history of diabetic foot ulcers.”²² I do not accept Mr. Clarke’s evidence that this bus incident caused his toe infection and subsequent amputation because his evidence originated months after the incident and consisted of retrospective self-reporting.²³ It is not unreasonable to assume that the cause of Mr. Clarke’s unfortunate amputation related to his diabetes.²⁴ Therefore, I cannot find that the bus played any significant or contributing role in Mr. Clarke’s impairment.

For all of the reasons discussed above, I find that Mr. Clarke’s impairment did not arise directly from the use or operation of the bus. Mr. Clarke was not injured as a result of an “accident” as defined in section 2(1) of the Schedule.

EXPENSES:

The parties did not make submissions on the issue of expenses. If the parties are unable to reach an agreement, they may request a determination pursuant to Rule 79 of the Dispute Resolution Practice Code.

February 28, 2013

Deborah Pressman Arbitrator

Date

Financial Services Commission of Ontario