Licence Appeal Tribunal File Number: 25-002090/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Marta Villatoro
Applicant
and
TTC Insurance Company Limited
Respondent
DECISION
ADJUDICATOR:
Steve Gilchrist
APPEARANCES:
For the Applicant:
Marta Villatoro, Applicant
Rajiv Kapoor, Paralegal
For the Respondent:
Stephen Sargent, Counsel
Interpreters:
Daniella Corradi, Spanish language
Patricia Ribeiro, Spanish language
Heard by Videoconference:
November 24 and 25, 2025
OVERVIEW
1Marta Villatoro, the applicant, was involved in an incident while travelling as a passenger on a Toronto Transit Commission (“TTC”) bus on October 9, 2023. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TTC Insurance Company Limited, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant entitled to accident benefits pursuant to s. 268(1.1) of the Insurance Act, R.S.O. 1990. C. I.8, as amended?
ISSUES
3The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 16, 2023, to date and ongoing?
iii. Is the applicant entitled to $4,707.44 for physiotherapy services, proposed by Healthmax St. Clair in a treatment plan/OCF-18 (“plan”) dated December 13, 2023?
iv. Is the applicant entitled to $4,167.00 for physiotherapy services, proposed by Healthmax St. Clair in a plan dated August 24, 2024?
v. Is the applicant entitled to $2,486.00 for a Psychological Assessment, proposed by Centre for Psychological and Counselling Services in a treatment plan dated September 16, 2024?
vi. Is the applicant entitled to $2,655.50 for a Chronic Pain Assessment, proposed by Rehab & Pain Management Inc. in a treatment plan dated September 28, 2024?
vii. Is the applicant entitled to $903.95 for cost of clinical notes and records, submitted on a claim form (OCF-6) dated October 21, 2024?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not entitled to accident benefits as a result of the incident as such benefits are barred by operation of section 268(1.1) of the Insurance Act.
6Given that there was no entitlement to benefits under the Schedule, there is no need to consider the other issues in this appeal.
PROCEDURAL ISSUES
7At the start of the hearing, the applicant’s Counsel advised that two of his witnesses, Dr. Victor Antonio Vera Silva and Dr. Mohamed El-Saidi, would not be appearing, despite their being listed in the final witness list for the applicant. There was considerable discussion regarding a third witness for the applicant, the insurance company adjuster, Leah Brown-Ramjohn.
8On November 4, 2025, the Tribunal approved a summons, as requested by the applicant, to Ms. Brown-Ramjohn. Applicant’s counsel had no confirmation that the subpoena had been personally served, as required by Tribunal Rule 64(2)(c). The applicant’s counsel had attempted to serve the summons by fax to the Respondent’s Counsel who had advised he could not accept service on behalf of Ms Brown-Ramjohn.
9The applicant’s counsel requested an order to compel the attendance of Ms. Brown-Ramjohn, which was denied, on the basis that he could provide no evidence of personal service of the summons.
10The applicant’s counsel also filed a Notice of Constitutional Question under Rule 11, however, to be valid, the Notice had to be received by the Tribunal a minimum of 15 days prior to the hearing. It was received late, namely 14 days before the hearing.
11More importantly, Form 4F of the Ontario Courts of Justice Act specifies that the Notice must include the date and time at which the questions are to be argued, in order to provide an opportunity for the Attorneys General of Ontario and Canada to submit their responses. This information was not noted on the Notice and, on the contrary, the wording on the Notice states the questions are to be argued “after the release of the LAT decision”.
12Section 24(1) of the Charter of Rights and Freedom states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
13In his Notice, the applicant’s counsel asserts that s. 268(1)(1) of the Insurance Act “disproportionately impacts persons of limited means, persons with disabilities, and commuters who rely on public transportation, thereby perpetuating inequality and social disadvantage”.
14Applicant’s counsel further asserts that this section of the Insurance Act “ is arbitrary, overbroad, and discriminatory, failing to meet the principles of fundamental justice, and cannot be demonstrably justified in a free and democratic society under section 1 of the Charter”.
15Meeting the procedural step of submitting a Notice, alone, is not enough to mount a successful challenge. In the Notice, the applicant counsel’s arguments are limited to general comments about ss. 6(2)(3) and (4), 7 and 15(1). Applicant’s counsel provided no case law laying out the test for determining whether a breach of s. 15(1) has been established. Even setting aside the defects in the Notice, I find it provides no context or argument, nor any authorities, that impact my consideration of the facts in this hearing.
16As a final procedural issue at the commencement of the hearing, the applicant’s counsel sought to introduce, without notice, a Google 3-D street view photograph of the intersection of Rogers Road and Kane Road. The respondent’s counsel objected on the basis that there was no prior notice and the photograph was not taken on the date of the accident. I permitted the introduction of the photograph, as an exhibit, with the condition that it would only be used to provide context, if needed, to any discussions involving the various elements of the roadway.
ANALYSIS
17On October 9, 2023, the applicant was an occupant of a TTC bus. The bus had come to a stop in the westbound driving lane on Rogers Road approaching the intersection with Kane Road.
18When the traffic light ahead of the bus changed to green, the bus accelerated. The acceleration of the bus caused the applicant, who was not holding on to anything, to fall. The applicant submits that the force of the sudden acceleration resulted in physical contact between her and the interior of the TTC bus, which resulted in injuries.
19The parties agree that the TTC bus did not collide with any other vehicle.
Legal Test
11The Insurance Act provides an exception to the applicability of the Schedule to passengers in a public transit vehicle, unless that vehicle is in a collision. At the time this exception was introduced, such passengers were granted additional tort rights, as an offset for the elimination of the coverage of the Schedule. The onus is on the applicant to demonstrate that a collision occurred.
12Section 268(1) of the Insurance Act provides:
268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.
Exception, public transit vehicles
(1.1) Despite subsection (1) and the Statutory Accident Benefits Schedule, no statutory accident benefits are payable in respect of an occupant of a public transit vehicle, in respect of an incident that occurs on or after the date this subsection comes into force, if the public transit vehicle did not collide with another automobile or any other object in the incident.
13The applicant takes the position that it was the transiting of the bus over a manhole cover in the roadway that created the motion which caused her to fall. To the extent that the manhole cover could be considered “any other object”, she argues that the interaction with the manhole cover therefore constitutes a collision, which would nullify the effect of section 268(1.1) and make her entitled to accident benefits.
14The respondent argues that the manhole cover could not have been the source of any action by the bus that occasioned the fall by the applicant for the simple reason that she had already fallen by the time the front right wheel was parallel to the manhole cover and, more importantly, the bus never drove over the manhole cover in question. The respondent asks that section 268(1.1) be applied to this incident and the applicant barred from eligibility for any statutory accident benefits under the Schedule.
15The applicant’s counsel introduced several documents which were claimed to reflect comments made by the applicant in the immediate aftermath of the accident and in subsequent written submissions to the respondent. These included the Toronto Police Service Collision Report; the Toronto Paramedic incident notes; the report by psychiatrist Dr. El-Saidi; the admission records of Humber River Health and the disability certificate (OCF-3) prepared for the respondent. In every instance, the applicant describes the action that caused her fall as a “hard” or “strong” motion caused by either the rapid acceleration or braking of the bus.
16The applicant’s counsel conceded that, after having the benefit of viewing the video, that the applicant ceased having any doubts about the direction of the force that precipitated her fall.
17After establishing the applicant’s impression of what occurred during the incident, applicant’s counsel then introduced a video recorded by four cameras installed in the interior of the subject TTC bus. The single video integrated a simultaneous feed from the four cameras plus it displayed additional information, including time, date, the speed at which the bus was travelling and the latitude and longitude of the bus.
18The four cameras are mounted on the ceiling of the bus placed in such a way that one faces out the front right door, the second faces the front half of the bus interior, the third covers the rear doors and the fourth faces the rear half of the bus interior.
19There were no issues raised, by either party, on the placement of the cameras, their clarity, the timestamp, the accelerometer that displayed the speed at which the bus was travelling or the display of the GPS data which showed the geo-location of the bus. The parties agreed that the cameras accurately recorded the circumstances on that bus on the day in question.
20The counsels had the ability to advance the cameras frame-by-frame, with multiple frames per second. As the applicant’s counsel walked the applicant through the timeframe of the incident, the sequence of events becomes obvious. As the bus begins to accelerate from a stopped position, at 4:01:05 pm, the applicant, who had previously relinquished her hold on one of the poles adjacent to the rear doors, begins to fall. By 4:01:09 pm, the applicant has fallen and hit the floor. There is agreement by the parties as to this timing.
21The view of the front-right facing camera, in that same time period, reveals the position of the bus relative to a manhole cover and a bike lane, both of which were to the right of the bus. The applicant’s counsel spent considerable time on the manhole cover. He highlighted a white line which was painted through most, but not all, of the width of that manhole cover. From the Google 3-D street view photograph, it is clear that the white line was part of the dotted lane that separated the driving lane westbound on Rogers Road from the bike lane between the driving lane and the curb.
22The applicant’s counsel provided no specific measurements where that line was in relation to the width of the manhole cover, however, a lay person observing the photograph can clearly see that the white line falls on the extreme left hand side of the manhole cover, meaning that, given the angle of the camera view to the front right of the bus, it cannot follow that the bus transited the manhole cover.
23The position of the bus is further confirmed by another feature of the video which shows where the bus is located, relative to the roadway, based on a GPS view. In that view, the bus can be seen to travel in a continuous straight line, with no swerving, in any direction, and shows the bus remained in the driving lane at all times.
24The applicant’s counsel suggested that the width of the bus wheels could have extended beyond the side of the bus, itself. The bus driver testified that, while that is the case, on some buses, it is by a minimal distance. No evidence was introduced to demonstrate whether the bus in question had tires which were flush with the side of the bus or extended beyond the side and, if so, by what distance. The bus driver indicated that most buses had wheels which did not extend outside the wheel well.
25From those facts, it is possible to conclude that there was, at no time, any ability for the bus wheel to contact the manhole cover. Furthermore, at the time the applicant’s counsel established the applicant was already on the floor, i.e. 4:01:09 pm, the front-right facing camera shows the entire manhole cover still in advance of the front right wheel of the bus. This is incontrovertible visual confirmation that the applicant’s fall could not have been caused by the manhole cover, as the applicant had already fallen before the bus reached a position parallel to the manhole cover.
26As a final consideration, applicant’s counsel provided no detailed evidence as to the distance, if any, that the manhole cover was recessed below or extended above the surrounding roadway surface. He did introduce a photograph of a different manhole cover, which he indicated was the next manhole westbound on Rogers Road. In that photograph, there are signs of repairs to cracks in the road surface surrounding the manhole. However, no similar photograph of the manhole cover he claimed was responsible for the incident was provided.
27It is important to emphasize that, at no point since the accident, including her testimony before me, did the applicant describe a “bump” as the reason for the fall. Instead, it was a lateral motion of the bus – either accelerating or braking – which caused her to fall.
28The only reasonable conclusion which can be drawn is that the manhole cover contributed in no way to the fall experienced by the applicant.
29The respondent’s counsel suggested that for several months following the incident the issue of a manhole cover was never raised as a contributing factor. It was only after the release of the Janes v TTC Insurance Company Limited, 2025 CanLII 23490 (ON LAT) (“Janes”) decision on March 14, 2025, that the applicant’s counsel offered an alternative to his original theory of how the incident occurred.
30I have considered Janes but I find the facts in that case were materially different from those of the case before me. In Janes, the road surface had been milled (i.e. the asphalt road surface ground down) which resulted in manhole covers being left in an elevated position relative to the road surface. Adjudicator Yan found that the manhole covers could then be considered an “object” which nullifies the exemption of s. 268(1.1).
31In this case, there appears to be no difference in the height of the road surface and the manhole cover. It would be an illogical extension of the reasoning in Janes to consider a flush manhole cover to constitute the same hazard as one which is significantly elevated above the roadway. For that reason, I do not believe that Janes serves as a relevant precedent for the case before me.
32More importantly, notwithstanding the differences in the relative height of the manhole cover and the roadway, it is not necessary for me to draw any parallels with the Janes decision because the visual evidence is compelling and absolute. The applicant’s fall commenced and was completed prior to the wheels of the bus being even parallel with the manhole cover that the applicant’s counsel suggests caused the fall.
33The acceleration of the bus, by 4:01:09, had yet to result in a speed which changed the display on the accelerometer under the visuals of each camera. We are left to conclude that it was not speed but the rate of change of speed which caused the fall, complicated by the fact that the applicant had given up her hold on one of the poles on either side of the rear doors. Because she was not supporting herself as the bus began to move, the inevitable reaction was to fall backwards.
34After consideration of the evidence, the authorities and the testimony of the witnesses, I find the bus made no contact with “any object” and, as a result, there was no collision in this matter. I found the testimony of the applicant to be credible and detailed and, in large part, her oral testimony was consistent with comments she had previously made to medical practitioners and on forms submitted to the respondent in the months following the incident. Aside from some initial confusion as to whether the movement of the bus related to acceleration or braking, in all cases she recounted that it was a lateral “movement” not a “bump” that caused her fall.
35There is no doubt that the exemption provided in section 268(1.1) of the Insurance Act applies in this circumstance.
36Accordingly, the applicant is not entitled to accident benefits as a result of the incident as such benefits are barred by operation of section 268(1.1) of the Insurance Act.
Substantive Issues In Dispute
37I find that the applicant is not entitled to the accident benefits listed as issues in dispute as a result of the incident as such benefits are barred by operation of section 268(1.1) of the Insurance Act.
ORDER
38The applicant is not entitled to accident benefits as a result of the incident as such benefits are barred by operation of section 268(1.1) of the Insurance Act.
Released: December 12, 2025
Steve Gilchrist
Adjudicator