Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 73
FSCO A12-001559
BETWEEN:
ABA HAMMOND
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Susan Sapin
Heard: September 4, 2014, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Ms. Hammond, briefly, by telephone
Steve Anderson for TTC Insurance Company Limited
Issues:
The Applicant, Aba Hammond, claims she was injured when she fell while riding in a Toronto Transit Commission bus on or about February 7, 2007. She submitted an Application for Accident Benefits to TTC Insurance Company Limited (“TTC”), payable under the Schedule, on May 25, 2007.1 TTC refused to pay statutory accident benefits on the basis that it was unable to verify that the incident occurred as alleged, i.e., there was no ‘accident’ within the meaning of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Hammond 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. Hammond injured as a result of an “accident” as defined in section 2(1) of the Schedule?
Result:
Ms. Hammond was not injured as a result of an accident.
Ms. Hammond’s claims are dismissed.
Adjournment Request Denied:
Ms. Hammond did not attend at the Commission for her hearing, scheduled to begin at 10:00 a.m. At 9.58 a.m. she called the Commission inquiries line to advise that she was unwell and would not be attending the hearing.
When I called Ms. Hammond at home at the start of the hearing, she explained she was not well, due to ‘too many motor vehicle accidents,’ and requested an adjournment, stating she had consulted three lawyers, but had yet to retain one, and had other ‘matters going on.’ On August 8, 2014, Arbitrator Mutch permitted Ms. Hammond’s previous paralegal to withdraw as her legal representative, due to a breakdown in the counsel-client relationship based on a lack of communication. Arbitrator Mutch noted that Ms. Hammond indicated she intended to proceed with this preliminary issue hearing without counsel and that she would ‘do her best’ to provide TTC with a list of witnesses and copies of documents she intended to rely on, in advance of the hearing.
I note that as of the date of this preliminary issue hearing, neither TTC nor FSCO had received any documents from Ms. Hammond.
Ms. Hammond further advised that she intended to forward a doctor’s note attesting to her inability to participate in this preliminary issue hearing on medical grounds.
Mr. Anderson, counsel for TTC, attended at the hearing with TTC’s witnesses, ready to proceed. He objected to the adjournment due to the short notice and because Ms. Hammond’s reason for not attending differed from what she had told him in a conversation the week before.
As Ms. Hammond advised that she did not wish to listen to Mr. Anderson’s submissions, or participate in the hearing, I terminated the telephone call.
Mr. Anderson submitted correspondence confirming a conversation he had with Ms. Hammond on August 28, 2014, in which she advised him she would not attend the hearing as she would be requesting an adjournment, and where he advised her that TTC would oppose her adjournment request, or, if she failed to attend, would ask that her action be dismissed. Ms. Hammond had not provided a witness list or any documents in support of her case, contrary to her undertaking to Arbitrator Mutch.
Ms. Hammond did not attend the pre-hearing that took place on November 7, 2013, and did not comply with specific undertakings required of her by Arbitrator Feldman at that time.
Ms. Hammond did not request an adjournment of the preliminary issue hearing until after I called her at her home the morning of.
I denied Ms. Hammond’s adjournment request and proceeded with the preliminary issue hearing because I was not persuaded, based on the sequence of events described above, that Ms. Hammond had any intention of following through with this proceeding.
Ms. Hammond’s alleged accident took place almost 7 years ago. She waited almost two months before advising the TTC that an incident had even occurred. The record indicates she waited until April 5, 2012, over five years later, to submit an Application for Arbitration, and then failed to attend the pre-hearing scheduled for November 7, 2013, despite being represented and despite being notified. I find she has been well aware of TTC’s position, that it has not been able to confirm that any incident occurred in February 2007 since May 29 of that year, and in all the time since then, she has not provided any information to corroborate her allegations.
I find that the information on which this preliminary issue hearing is to be decided has been in the possession of both parties for several years now. The Commission’s mandate is to provide the most just, quickest and least expensive resolution of the dispute. I find it would be contrary to that mandate to further prolong this matter and cause the parties to incur additional costs, by adjourning the hearing of this preliminary issue, convening a further pre-hearing, and scheduling a new hearing date. For these reasons, I denied the adjournment and proceeded with the hearing.
On September 12, 2014, I received a hand-written note from Ms. Hammond dated September 5, 2014 with a note attached from a Dr. S. Goldhar, M.D. dated September 2, 2014. The note states only that Ms. Hammond has been a regular patient of The Doctor’s Office medical clinic and has been suffering from ongoing low back pain and bilateral knee pain since a TTC accident; that she has ongoing emotional and financial stress; that she has been unable to obtain employment; and that she requires ongoing medical care. As the note did not explain why Ms. Hammond was not able to attend the hearing, and did not contain fresh evidence not previously available, I found no reason to re-open the hearing.
Substantive Issue: Was There an Accident?
The Schedule defines an accident to mean ‘an incident in which the use or operation of an automobile directly causes an impairment . . .’ An impairment means a loss or abnormality of a psychological, physiological or anatomical structure or function.2 The onus is on Ms. Hammond to establish, on a balance of probabilities, that: 1) an incident occurred on a TTC bus; 2) she was injured in the incident on the TTC bus; and 3) the injuries she suffered in the incident caused an impairment.
On the evidence submitted, I find Ms. Hammond has not been able to establish any of these elements, for several reasons.
First, TTC’s evidence indicates Ms. Hammond’s evidence was not plausible or reliable and was full of gaps. She did not report the alleged incident to the TTC until almost two months later; she gave different versions to TTC investigators of what happened at different times - even different dates the incident was supposed to have occurred -; and she began resubmitting claims for benefits to TTC in 2010, after three years had elapsed with no activity. There were no independent witnesses to the incident, and the scant medical evidence on file does not establish any causal link between any injuries Ms. Hammond claimed she sustained, and any incident on a TTC bus.
Second, I find TTC went out of its way to conduct a timely and thorough investigation of Ms. Hammond’s allegations, and was unable to establish that any incident occurred on any of February 5, 6, or 7, 2007 – the possible days suggested by Ms. Hammond - on any of the likely vehicles on the bus route in question.
EVIDENCE AND ANALYSIS:
Mr. Leary, a claims adjuster with TTC for 29 years and the person who investigated Ms. Hammond’s allegations, testified at the hearing. The documentary evidence submitted by TTC corroborates his testimony.3
Mr. Leary testified that Ms. Hammond first contacted a clerk at the TTC on April 10, 2007, two months after the incident was supposed to have taken place, to report that she had fallen on bus #1017 on the southbound 137A Islington route near the Bergamot stop at 7:45 a.m. on February 6, 2007. The clerk recorded this information on a standard form entitled ‘event information,’ and also wrote a description of the incident as related by Ms. Hammond. Also included on the event form was a description of the bus driver: ‘black male, clean-shaven, no glasses, possibly average build.’
Mr. Leary began to investigate the incident the next day, April 11, and continued to investigate over the next few months, well into June 2007, based on changing information provided by Ms. Hammond.
Mr. Leary’s investigation consisted of personal interviews with Ms. Hammond and three possible bus operators, as well as obtaining and reviewing a number of data sheets and reports that TTC regularly generates to track buses and bus operators throughout the city.4
The following details are contained in a memo Mr. Leary wrote on June 21, 2007.5 At first he looked into the reports for bus #1017 on the southbound Islington 137A route on February 6, 2007, between 5:45 and 8:15 a.m. He testified that he considered this broad window of time in case Ms. Hammond might have been mistaken about the exact time the incident occurred. He discovered that bus #1017 was operating on a different route that day and was nowhere near Islington Avenue. Mr. Leary also noted that a bus with a similar number – #1013 – was in the area about 7:50 a.m., and followed up in case Ms. Hammond had mistaken the bus number. The driver of bus #1013, however, was East Indian. As Mr. Leary thought the driver could have been mistaken for a black male, he made a note to interview him, even though the driver had already submitted a report that he had no knowledge of any incidents on his bus on that day. 6
When Mr. Leary informed Ms. Hammond of these facts, she told him the incident must have occurred the previous day, February 5.
Mr. Leary then checked the records for February 5, to give Ms. Hammond the benefit of the doubt, and determined that a bus #1017 was in the right place in the right time frame – 7:21 a.m. However, as it was driven by a white male, he ruled it out. Another bus with a similar number, #6517 was also in the area at approximately 6:52 a.m. That bus was driven by Cleveland Phillips, the only one of the operators to match Ms. Hammond’s description.
Mr. Phillips testified at the hearing. He has been a full-time bus driver with the TTC since 2002. Mr. Phillips stated that the TTC has strict protocols for incidents involving passengers that must be followed. The bus driver must make notes of the date, time, and location of the incident and the nature of injuries, if any, and must contact a supervisor for instructions. The notes are important because the supervisor will want a report, and so will police or ambulance if they are called to the scene. Mr. Phillips stated that he keeps a notebook with him for those reasons. He also emphasized that all incidents must be reported, whether there was an injury or not, in the form of an occurrence report, at the end of the operator’s shift.
Mr. Phillips testified that he had no recollection of any incident occurring on his bus at 7:45 a.m. on February 5, 2007, as claimed by Ms. Hammond, and no notes of any such incident. He further stated that if an incident such as the one Ms. Hammond described had occurred, he would have reported it. This is consistent with what he told Mr. Leary when the latter interviewed him on August 26, 2007. Although Mr. Phillips’ testimony was not subjected to cross-examination, I have no reason to disbelieve it.
As part of his investigation, Mr. Leary also reviewed the Service Reports for the Islington 137A bus on February 5 and 6, 2007.7 These reports would indicate whether there were any delays on the route on those days, and why. There were no delays reported for any incidents involving passengers on that route on those days.
On an Application for Mediation received by the Commission on February 22, 2010, three years after the incident is supposed to have occurred, it is identified as having taken place on February 7, 2007.8
I find Mr. Leary went out of his way to conduct a very thorough investigation of Ms. Hammond’s allegations, and was unable to substantiate them.
I note that the medical records provided do not support Ms. Hammond’s claim that she was injured on a TTC bus on February 5, 6, or 7, 2007. Although an OHIP summary of medical visits between April 15, 2006 and April 6, 2013 indicates Ms. Hammond did visit a Dr. Jatinder Dhillon on the 14th and 15th of February for what is categorized as ‘lumber strain, lumbago, coccydynia, sciatica,’ this does not correspond to her April 20, 2007 statement to Mr. Leary that she went to see Dr. Dhillon the same day she claims she fell on the bus.
The records also indicate frequent visits to doctors for a number of physical and psychological complaints, including musculoskeletal complaints, in 2006 and up to 2013, before and after the alleged incident. A Disability Certificate completed by Dr. Dhillon after a visit on May 18, 2007, three months after the accident, includes a description of the incident by Ms. Hammond and lists her injuries as neck pain, thoracic pain, back pain and low back pain. I find it cannot be determined, even on a balance of probabilities, that there is any connection between visits to Dr. Dhillon on the 14th and 15th of February and Ms. Hammond’s claim that she suffered musculoskeletal injuries due to a fall in a bus a week or more earlier.
More recent medical information submitted on Ms. Hammond’s behalf is similarly unhelpful to her claim. After an unexplained gap of three years, Ms. Hammond submitted a Disability Certificate dated January 22, 2010, completed by Dr. Maya Pando, a chiropractor at New Age Recovery.9 In that document, the incident is described as having occurred on February 7, 2010, with Ms. Hammond falling ‘forward on the ground,’ which was all ‘wet and slippery,’ and that she hit her shoulder and face on the ground. This is contrary to Ms. Hammond’s more contemporaneous description of the incident in a Disability Certificate dated May 22, 2007, where she stated that she “fell backwards on the floor of this bus on February 5, 2007.”10 In an even earlier statement to Mr. Leary on April 20, 2007, Ms. Hammond said she fell and landed on her posterior, on February 6.11
As there is no reliable evidence to substantiate if, when, or how Ms. Hammond fell on a TTC bus, and no evidence to link her many physical and psychological complaints to an incident involving a TTC bus, I find Ms. Hammond has not established, on a balance of probabilities, that she suffered impairments as a result of an accident within the meaning of s.2(1) of the Schedule.
EXPENSES:
S. 282(11) of the Insurance Act states that an arbitrator may award expenses of preparing for and presenting a hearing to either party in accordance with criteria prescribed by regulation. Rule 75.2 of the Dispute Resolution Practice Code sets out the criteria referred to in the Expense Regulation, which is found in Section F of the Code. The only relevant criteria in this case is the success of each party in the outcome of the proceeding. As TTC was the successful party in this case, I exercise my discretion to award it its expenses incurred in this preliminary issue hearing. Under the circumstances, and as the hearing was brief, I fix these expenses at $250.
April 13, 2015
Susan Sapin
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 73
FSCO A12-001559
BETWEEN:
ABA HAMMOND
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:
- Ms. Hammond’s application for arbitration is dismissed.
April 13, 2015
Susan Sapin
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- S. 2(1) of the Schedule, Definitions and Interpretation.
- Exhibit 4, TTC Document Brief, Tabs 60 – 76.
- Exhibit 4, Tabs 65 – 76.
- Exhibit 4, Tab 65.
- Out of caution, Mr. Leary also interviewed the driver of bus #1023, a bald black male with a slight moustache and prescription glasses, who advised that no incident had occurred on his vehicle.(Tab 67)
- Exhibit 4, Tab 68.
- Exhibit 4, Tab A3.
- TTC Document Brief, Tab B-55.
- TTC Document Brief, Tab B-54.
- TTC Document Brief, Tab B-61.