COURT FILE NO.: CV-11-434756
DATE: 20150807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADEL AHMED
Plaintiff
– and –
TORONTO TRANSIT COMMISSION
Defendant
Adel Ahmed in person
Madeline Ferreira, for the Defendant
HEARD: June 11, 12, 15, 16, 17, 18, 19, 22 and 23, 2015
G. DOW, j
reasons FOR JUDGMENT
[1] The plaintiff claims damages from the defendant for injuries sustained as a result of falling off the Coxwell Subway Station platform to track level on May 6, 2011. The plaintiff was self-represented and utilized an Arabic interpreter, Zaid Mohammed. The plaintiff is also visually impaired as a result of retinitis pigmentosa.
[2] The plaintiff alleges he slipped when his left foot stepped on a gluey substance that caused him to lose his balance and fall off the platform onto the track level of the station. The defendant denies any negligence on its part claiming the platform was clean and dry in the area where the incident occurred.
[3] The trial was scheduled to proceed with a jury. At the commencement of the trial counsel for the defendant proposed the jury notice be struck out. I provided the plaintiff with the pamphlet “Instructions for Self-Represented Litigants” and adjourned to permit the interpreter to review same with the plaintiff. I also explained the process of selecting a civil jury and what the plaintiff would be required to do as part of that process. I explained to the plaintiff that he could consent to striking the jury notice and adjourned for about 15 minutes in order to permit the plaintiff to consider same. Upon court resuming, the plaintiff confirmed his consent to having the matter proceed, without a jury. I ordered the jury notice be struck out, on consent, and the matter proceeded without a jury.
Facts
[4] The plaintiff, born January 18, 1957, states that when he lived in Sudan, prior to coming to Canada, he was subject to torture at the hands of the government as a result of his democratic and unionist views. He came to Canada in or about late 2004 as indicated in medical records produced and made exhibits. In 2009, he was referred by his family physician, Dr. Obaji, to a neurologist, Dr. Veidlinger for right-sided low back pain and general shaking of his body. Dr. Veidlinger prescribed Lorazepam which is used to treat anxiety disorders.
[5] In cross-examination, the consulting note of Dr. Syed, orthopedic surgeon, November 13, 2009, was tendered (Exhibit 20) with regard to right knee pain from a “right knee injury in 2003 in Egypt when he fell”. The findings were positive on examination and he was referred for physiotherapy. He began treatment at Main and Gerrard Physiotherapy on or about November 18, 2009. Their initial assessment included “lower back strain-sprain” and “lower limb weakness”. The OHIP decoded summary (Exhibit 12) indicates regular attendances on more than 150 occasions from November 18, 2009, to May 5, 2011, or the day before the incident in question.
[6] The plaintiff is also diabetic with records indicating he was taking Metformin since at least December, 2006 and was assessed by Dr. Groenewoud, endocrinologist, whose consulting note April 8, 2010, indicates complaints of feeling “dizzy and tired”. While the note also says the plaintiff was not doing any glucose monitoring at that time, the plaintiff gave evidence that he had an audible glucose monitoring device which he was regularly using but which was misplaced after the May 6, 2011 incident. I would note that, while each of these prior complaints were tendered as evidence, regrettably, the plaintiff was not asked if any of them were the reason he fell off the platform.
[7] A colour photo of the boots he was wearing at the time of the incident (Exhibit 2) show they are over the ankle in height, with laces and a rubberized sole with what appears to be a significant tread and capable of adequate traction during a Toronto area winter.
[8] The plaintiff claimed he was familiar with the subway system and able to take a bus from his one-bedroom apartment, where he lived alone, to Coxwell Station. However, the plaintiff tendered an Orientation and Mobility Report from an organization that supports people with vision impairments known as Balance which indicated efforts by them to teach him safety procedure and basic cane use skills was discontinued by the plaintiff. He was “adventurous and travelling on his own” and cancelled or was not available for four of seven scheduled lessons in August, 2005.
[9] On Friday, May 6, 2011, the plaintiff’s evidence was that he was travelling from his home by bus to Coxwell Subway Station so he could visit a friend after sunset prayers. He was travelling to the Danforth and Victoria Park area. He claims he was familiar with Coxwell Station due to frequent use. He planned to exit the subway system at Main Street Station. To that end, he was aware that the platform exit he would take at the Main Street Station was at a point where he should get on the subway at the Coxwell Station opposite to what he called a billboard sign (and appears to actually be the overhead television monitor) which required him to walk some distance from the bottom of the stairs, which is closer to the western edge of the eastbound platform. His entry into the Coxwell Subway Station began by descending a set of stairs to a mezzanine level, and veering to the left to descend a second set of stairs before reaching the platform level. He was using and only carrying his white collapsible cane.
[10] While on the platform, the plaintiff testified he felt a “gluey” substance with his left foot and tried to maintain his balance but slipped off the platform onto track level. (When cross-examined about whether the substance was gluey or sticky, the interpreter advised using the same word in Arabic, “laziga”. When he was cross-examined about his discovery evidence that the substance was “slippery”, the Arabic word used was “zaliq”.) The plaintiff testified he was shocked and began screaming and attempting to stand and return to the platform. He became aware of two men assisting him, one of whom was on the platform lifting him by his arms while the other was pulling/pushing his back. He was lying on the platform for three or four minutes trying to breathe and relax when he began to feel a strong pain in his back. He was assisted to stand up and walked to a bench on the platform where he sat down. Emergency services arrived and transported him to the hospital.
[11] It is worthwhile to note the medical records detailing the incident. The ambulance call records (Exhibit 4 – page 17) indicates he “lost his footing with walking cane and fell to track level pt (sic) denies dizziness or C/P”. The emergency intake records from Toronto East General Hospital describe “54 yr male fell @ subway – off platform onto track (5’ drop)”. The first post-accident clinical note of the family physician, Dr. Obaji (Exhibit 16) includes “fell down on subway car track”.
[12] There is no mention of a substance on the platform until a September 21, 2011 consulting note of Dr. Hassan, psychiatrist, which equivocally states: “He could not tell me the particulars of the case, for example the reason for his fall, except for believing that there might have been something slippery that he stepped on” (Exhibit 22).
[13] While a judge or jury can prefer the evidence of one over many, it is important to recognize and compare the information and evidence of the defendant’s employees and an independent witness. In this regard, Subway Supervisor Ivan Petkovsky testified for the defendant. He had held his position for about 1.5 years before the incident. He impressed me as a fair-minded, articulate and credible witness. His duties include managing the subway service, particularly subway operators as well as coordinating any emergency response required. It was learned that the Coxwell Subway Station is a “crew station”, that is, this is a station on the Bloor-Danforth line where subway operators on the Bloor-Danforth line start their shift, take breaks and end their shift. As a result, on the eastbound platform there is a “break” room where subway operators hand over operation of subway cars mid-shift to replacement operators.
[14] Mr. Petkovsky explained that, like all Toronto Transit Commission employees, his duties included being vigilant for hazards to passengers and reporting them to “Transit Control” so they can be rectified.
[15] Mr. Petkovsky was working a 4:00 p.m. to midnight shift on Friday, May 6, 2011. Counsel for the Toronto Transit Commission tendered a series of eight photographs (Exhibit 29) which Mr. Petkovsky took during the week of June 5, 2015, of the stairway down into and the eastbound platform of Coxwell Subway Station. He testified the station remains the same as existed on May 6, 2011. The photos were orally described to the plaintiff before they were marked as exhibits.
[16] Mr. Petkovsky walks the eastbound platform many times over his shift in order to communicate with subway operators and had a specific recollection of events of May 6, 2011, given what occurred. He was in the break room (under the stairway to the eastbound platform with a door onto the platform) when he heard a human scream. He was talking to Subway Operator Robert Leithwood who had just commenced his mid-shift break. They exited the room and turned to their right (or east) and observed someone at track level with two individuals trying to assist that person back onto the platform. As he was walking towards these individuals, he was using his two-way radio to call Transit Control to advise them of the incident and an “unsafe platform condition”.
[17] An unsafe platform condition puts into place a protocol in which subway drivers (particularly those eastbound approaching Coxwell Station) are not to enter the station unless they can first determine it is safe to do so and then at a reduced speed.
[18] Mr. Petkovsky estimates the individuals were about 100 feet east of the break room near the overhead television monitor on the eastbound platform in the station. He assessed the situation by asking if the individual if he was injured and was advised by the plaintiff, still screaming, that he was not injured. The plaintiff was now on the platform. He expected the plaintiff to be bleeding and immobile but this was not the case. He assisted the plaintiff to his feet and they proceeded to a red bench against the wall of the eastbound platform (visible in Exhibit 29, photograph 7) which is about one-half of the way between where the plaintiff was returned to the platform and the door to the break room.
[19] As part of Mr. Petkovsky’s responsibility to determine the cause of the incident, he began looking for a reason why the plaintiff fell off the platform including any hazard upon which he could have slipped or tripped but did not see anything. He also inspected the yellow, contoured platform edge in the area and found it to be in good repair.
[20] Mr. Petkovsky questioned the plaintiff for his name and physical condition. The plaintiff was now complaining of pain on the right side of his back. When Transit Control is contacted, they in turn call 911 and request attendance by Emergency Medical Services, who Mr. Petkovsky estimated arrived within five minutes. Mr. Petkovsky continued to update Transit Control after the plaintiff was removed from the station and began preparing the Supervisory Occurrence Report (Exhibit 30). He was required to complete this form before his shift ended. It identified the plaintiff as visually impaired, having fallen to track level, complaining of soreness to his lower back and being transported to Toronto East General Hospital by Emergency Medical Services. It also included that the plaintiff was assisted back to platform level by Kevin Fernie and Darren Gaudet and indicated their contact information. The condition of the subway platform was described as “normal” or, as Mr. Petkovsky testified, “clear, dry and good”. Mr. Petkovsky admitted he did not repeat what one of the individuals had told him which was the plaintiff had “walked off the platform”. Under cross-examination, Mr. Petkovsky acknowledged the existence of video cameras on the platform which record on a 48-72 hour cycle and that are only utilized for criminal investigations with the police initiating the request to view the video.
[21] The police were not requested to attend this incident either by himself or Transit Control although Mr. Petkovsky added it was open to the 911 operator to make that decision.
[22] When Mr. Petkovsky was questioned about not having taken a picture of the area immediately after the incident, he explained that he would have done so if he had been told the plaintiff had slipped on something, but that was not something the plaintiff indicated and the information from the witnesses was to the contrary. The first complaint of the plaintiff having slipped was not made until four months after the incident.
[23] Robert Leithwood is a 22-year veteran subway driver whom I find also gave evidence in a straightforward and credible manner. He testified his duties are to safety operate the subway cars as well as possibly to observe if there is anything that can affect platform safely for passengers. If he sees something which constitutes a hazard, he can report it to his supervisor or report it directly to Transit Control from his position as a subway driver.
[24] Mr. Leithwood was assigned the 5:30 p.m. to 2:30 a.m. shift on May 6, 2011. He reported to work at Coxwell Station. He gets a 27-minute break at 9:30 p.m. He was one of two operators on the subway train driving eastbound arriving at Coxwell at about 9:30 p.m. He exited the lead car about 25 feet from the east end of the eastbound platform. Platforms are approximately 500 feet in length. He then proceeded to walk back to the break room (as can be noted, this requires him to walk over the spot where the plaintiff was about to fall off the platform). He testified to observing the eastbound platform to be clean and dry. If it had been otherwise, he would have called the supervisor or janitor to remove the hazard.
[25] Mr. Leithwood confirmed seeing some people coming from the stairwell area beyond or west of the break room door before he entered the break room and began to retrieve his lunch. He began talking with his supervisor, Ivan Petkovsky, and estimated they were two of about six to eight individuals in the room. Within 60-90 seconds he heard a scream of pain from outside the break room and went out to investigate. He was followed by Petkovsky. He observed a male person on the track level who was pushing a second person back onto the platform. There was another person on the platform also assisting.
[26] Mr. Leithwood immediately assessed whether it was necessary to cut power to the 600-volt third rail while asking the three individuals what had happened. He was advised by one of the persons assisting the person being returned to the platform that this individual had just walked off the edge of the platform.
[27] Mr. Leithwood asked the person laying on the platform if he was all right and did not get a response. He observed pain from the facial expression of the plaintiff.
[28] Mr. Leithwood heard someone say the plaintiff’s cane was down on the track level and that he would need it so Mr. Leithwood jumped down and retrieved the cane which was partially lying on the cover board to the electrified third rail. He was aware that subway trains would be arriving about every five minutes and estimated it had been about three minutes since the subway train he had departed had left the station.
[29] Mr. Leithwood placed the position of the plaintiff when returned to the platform as just east of the overhead television monitor or about 250-300 feet from the break room. He again checked the condition of the platform floor and saw it to be clean and dry. He admitted in cross-examination he could not and did not check directly under where the plaintiff was laying. With his supervisor involved, he returned to the break room for his lunch and to complete the required “Report of Train Occurrence” form which had to be done before his shift could be completed. In cross-examination, Mr. Leithwood was referred to the telephone recorded statement of Kevin Fernie (marked Exhibit 34 following information to the Court that the individual has since passed away). At page four of the transcript, Mr. Fernie states “None of us actually went down on the tracks.” Mr. Leithwood specifically disagreed with that statement. Mr. Leithwood corroborated Mr. Petkovsky’s evidence that Transit Control was contacted, that Transit Control called 911 and that 911 also evaluates what services to send. Mr. Leithwood agreed that the incident did not require the police to respond.
[30] Mr. Leithwood’s Report of Train Occurrence identifies the location, date and time (9:37 p.m.) of the incident, and in the box titled “Details of Occurrence” the statement “The 2 guys who helped him back onto the platform said he just walked off. The platform was clear of debris + dry”.
[31] The defendant called Darren Gaudet who testified in a straightforward and forthright manner and whose evidence was credible and is accepted as to what occurred. He was on the eastbound platform with Kevin Fernie when he first observed the plaintiff at the bottom of the stairs leading to the platform. The plaintiff was walking eastbound with his cane in front of him and on a “touch” of an angle away from the wall on the south side of the eastbound platform. Mr. Gaudet admits he looked away but got a “feeling” or “vibe” to resume watching the plaintiff and saw him walk towards the edge of the platform and off onto the tracks. In cross-examination, he maintained this observation while sensibly acknowledging being less certain of all other details of the evening given the passage of time. Mr. Gaudet detailed his observing the plaintiff taking not less than six steps, walking at a normal speed with his cane in front of him and the two of them being about 30-40 feet apart when the plaintiff fell off the edge of the platform.
[32] Upon observing the plaintiff’s fall, he and Kevin Fernie ran up to the spot where the plaintiff left the platform and observed him getting up. Kevin was reaching out from the platform to offer his hand but because the plaintiff was visually impaired, Gaudet concluded he could not see Kevin’s hand and thus jumped down to track level where he pushed the plaintiff towards Kevin and helped push him back up onto the eastbound platform.
[33] Mr. Gaudet also testified as he made his way to the edge of the platform and after the plaintiff was back onto the platform, he did not see anything such as a substance on the platform. He confirmed being asked by a TTC employee, whom he believed was a subway driver, what happened. He confirmed he told that individual he saw the plaintiff walk off the edge of the platform onto the tracks. He gave the TTC employee his name and address and remained with the plaintiff until the paramedics arrived.
[34] In cross-examination, Mr. Gaudet was also confronted with the statement by Kevin Fernie that neither of them went down to track level. In disagreeing with that statement, Mr. Gaudet testified he “can’t answer for anyone else - - only what I did.”
[35] The defendant, apparently mindful of s. 3(1) of the Occupier’s Liability Act, R.S.O. 1990, c. 0.2 which requires the occupier to take “such care as in all the circumstances is reasonable to see…persons are reasonably safe while on the premises.”, also called evidence about the design and maintenance of the subway platform floor. In this regard, Henry Wan, a four-and-one-half year employee and architectural designer, testified about the terrazzo floor installed at Coxwell Subway Station prior to its opening in 1966. Mr. Wan was forthright and credible. He provided the detailed specifications and grinding of the surface to a specified coefficient of friction of 0.5 which is in accord with standards established by the Terrazzo, Tile and Marble Association of Canada. The coefficient of friction is a ratio of horizontal forces required to overcome the friction of a surface compared to the vertical component of the object’s own weight. In short, a ratio of 0.5 is considered safe to walk on.
[36] The surface is stripped and re-sealed every 12-18 months and Coxwell Subway Station was last done before this incident in January, 2010.
[37] There was also evidence about the yellow safety strips on the edge of the platform installed in 1992. A sample 24-inch-by-20-inch tile was brought to court and orally described in detail by me for the benefit of the plaintiff. This final design was the result of TTC testing and approval by the Canadian National Institute for the Blind (CNIB). In addition to its bright yellow colour, the tiles have round, two-dollar coin sized contoured bumps with smaller nubs both on the bumps and between them.
[38] There was also evidence in cross-examination about platform barrier doors and the $10-$15 million cost per station to retrofit a station with them. While it was agreed they would provide a greater margin of safety, the evidence of Mr. Wan also noted that the stationary nature of platform barrier doors made them not feasible so long as the subway trains are operated by individuals and their stops in each station lack the precision required to make platform barrier doors match up with the subway doors. Automatic subway train operation is in a developmental stage and may be ready by 2022.
[39] Regarding the system of maintenance at Coxwell Subway Station in the eastbound platform, Derek Howe, a 15-year employee and janitor gave evidence. He testified in a straightforward and credible manner. He was on duty Friday, May 6, 2011, working the 3:00 p.m. to 11:30 p.m. shift that started at Greenwood Station. His work schedule had him attend Coxwell Station at 5:00 p.m. where he remained until 8:00 p.m. This included a 30-minute break between 7:00 and 7:30 p.m. He then departed to Donlands Station where he remained for the balance of his shift, subject to reassignment. His scheduled duties while at Coxwell include collecting trash from litter/recycling containers, cleaning staff washrooms and maintaining the platform by removing “spillage, gum, graffiti, and slap tags/stickers” (Exhibit 37).
[40] Mr. Howe confirmed nothing unusual occurred at the Coxwell Station that evening and he was not there when the plaintiff fell. He likely did not hear about the incident until the following day when he was asked to complete a Miscellaneous Incidents Report, which unfortunately is not dated but which confirmed his absence at the time of the incident.
[41] Susan Austin, Foreperson of Station Services for the past four plus years with the TTC gave evidence in a straightforward manner about her job supervising the janitors. She was one of four individuals working the 3:00 p.m. to 11:30 p.m. shift on Friday, May 6, 2011, who randomly roamed the system ensuring that janitors are completing their duties and responding to any additional needs at any of the current 69 stations. She explained that the three-stations-per-janitor system varies depending on the size and traffic in each station. At that time, there were 28 schedules for janitors and Mr. Howe was one of 68 janitors working the 3:00 p.m. to 11:30 p.m. shift. The busiest station (Yonge-Bloor) has one janitor dedicated to it. A janitor can be assigned to as many as four (less busy) stations in a shift.
[42] Coxwell station, one of three stations covered by a single janitor, occurs in 13 of the 28 schedules.
[43] The Coxwell Subway Station eastbound platform was power washed twice per month when the system is closed to the public. It is floor-scrubbed once per week and receives janitorial mopping when and where needed during subway open hours. Coxwell Subway Station traffic is moderate with an average of 16,000 passengers per day (as opposed to the 200,000 passengers using the Yonge-Bloor Station).
[44] Norbert Koot, a Plant Communications Engineer, has been employed by the Toronto Transit Commission for the past 17 years. He gave evidence in a straightforward and competent manner. His job involves the design of communications systems including security systems. That is, he was involved in the installation of video cameras on subway platforms. With regard to Coxwell Subway Station, he confirmed the existence of five cameras which were installed on the eastbound platform in September, 2010. Four of the cameras only record, while a fifth camera aimed at the Designated Waiting Area (DWA) is also fed to the collector’s booth at the station. The purpose of installing cameras was for platform safety from overcrowding. The recording equipment is automated for 72 hours. That is, each recording device automatically erases, at 4:00 a.m., data which is 72-96 hours old. This system was determined in accordance with the recommendations by the Privacy Commission of Ontario.
[45] Access to what is recorded is restricted to requests by law enforcement, specifically the Metropolitan Toronto Police Force and TTC Special Constables. Upon such a request, the data requested is downloaded and can be maintained indefinitely.
[46] In cross-examination, Mr. Koot acknowledged the entire Coxwell eastbound platform would be captured by the cameras installed. He agreed that cameras would independently show what occurred. He disagreed that a 911 call should automatically trigger a police response.
[47] It is my conclusion that the evidence is overwhelming and in favour of the defendant. The plaintiff unfortunately veered towards the platform edge as he walked along the platform and missed sensing the yellow safety strip before, as Mr. Guadet observed, the plaintiff walked off the edge of the platform falling down onto the tracks. The evidence from all but Mr. Ahmed is that the platform was clear and dry. The system of maintenance, inspection and care of the eastbound Coxwell Subway Station platform in the circumstances meets the duty of care established by s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. 0.2. As a result, the plaintiff’s claim must be dismissed.
Damages
[48] Regardless of the finding of no liability on the defendant, the damages of the plaintiff must be assessed.
[49] Regarding general damages for pain and suffering, the medical records filed clearly indicate the plaintiff suffered multiple undisplaced left-sided rib fractures (Exhibit 3) which would clearly be painful and require some months to heal. This is in accordance with the plaintiff’s evidence and that of his witness, Mr. Abdlazeez, who testified about daily trips to the plaintiff’s apartment to assist him with activities and daily living for four months after his injury followed by weekly visits which eventually reduced to once per month. Mr. Abdlazeez did cleaning, cooking and laundry for the plaintiff. What is less clear is the physical condition of the plaintiff before May 6, 2011 and the extent of his recovery. The medical records referred to above make clear the plaintiff was having issues requiring regular medical review and ongoing physical therapy for, at least, low back pain. His evidence included an admission that regular treatment was being rendered before May 6, 2011 but he also testified that his pain levels since May 6, 2011 have been at an “excruciating” level.
[50] Mr. Abdlazeez also gave evidence that the plaintiff’s attendance and participation at the Sudanese Community Centre reduced after the May 6, 2011 incident. However, it is also clear this was due, in part, to the Centre moving from its previous location at 1454 Coxwell Avenue (or blocks north of the plaintiff’s residence) to the Lawrence and Midland Avenue area, making travel to and from much more difficult for the plaintiff.
[51] The post-May 6, 2011 medical reports tendered as exhibits from the plaintiffs’ family physician, Dr. Obaji, the psychiatrist, Dr. Hassan, and the orthopaedic surgeon, Dr. Syed fail to analyse or attempt to separate the pre-May 6, 2011 condition from the post-May 6, 2011 condition. Similarly, while the consulting notes of Dr. Veidlinger, neurologist, which predate May 6, 2011, describe shaking, nervousness and low back pain, they do not attempt to separate what was caused by the fall of May 6, 2011.
[52] The records indicate the plaintiff resumed physiotherapy July 20, 2011 and continued until October 7, 2013 when he was discharged and at which point, according to his testimony, Community Care would no longer fund the treatments.
[53] The diagnosis by Dr. Hassan, psychiatrist, in a note dated March 11, 2015 (part of Exhibit 6) is of an adjustment disorder with anxiety and generalized anxiety disorder. As indicated, there does not appear to be any recognition or analysis of the plaintiff’s psychiatric issues before May 6, 2011. It should be noted that an adjustment disorder is the least serious psychiatric diagnosis generally available.
[54] In submissions, counsel for the TTC proposed an assessment in the range of $15-$25,000. The plaintiff requested compensation in the amount of $50,000 in total. I assess general damages in the amount of $40,000.
[55] Regarding special damages (or those claims which are supposed to be precisely quantified), the following are being claimed by the plaintiff:
a) Subrogated account of OHIP in the amount of $3,080;
b) Physiotherapy expenses after October, 2013;
c) Medication expenses (in accordance with Exhibit 4);
d) Caregiving claims for assistance provided by Mr. Abdlazeez;
e) Legal expenses including previous lawyer’s account in the amount of approximately $3,800, expenses for obtaining documents from record storage and retrieval services (Exhibits 8 and 9), OHIP decoded summary of services and taxi receipts.
[56] While the actual claim by OHIP for the amount it wished to advance or recover was not produced, there was general agreement between the parties that it existed and was in the amount of $3,080. I would have found this reasonable and allowed this claim had any negligence been found on the part of the defendant.
[57] Regarding the claim for additional physiotherapy from Main and Gerrard Physiotherapy Clinic after October 7, 2013, the plaintiff submitted a prescription script from Dr. Veidlinger dated March 6, 2014 (as part of Exhibit 7). This Exhibit also contained an email letter to the TTC dated March 10, 2014 requesting they fund further treatment, which was declined. The specific dollar amount requested was not quantified by either the plaintiff or the treatment provider. Given treatment began in November, 2009 and continued on a regular basis up until the day before the incident of May 6, 2011, it is difficult to understand how this claim is appropriate. Further, it was admitted there was payment for treatment after the incident until the plaintiff’s discharge by the clinic in October 2013 (Exhibit 4 at page 30) and that the treatment was paid by a collateral source (Social Assistance) with no claim of subrogation. In addition, the claim advanced is more than two years after the incident of May 6, 2011 and after what is assessed to be a substantial recovery by the plaintiff from the injuries which occurred on May 6, 2011 and required therapy, likely for a period of months. As a result, had there been negligence on the part of the defendant, based on the evidence presented, this claim would have been and is dismissed.
[58] Regarding medication expenses, while prescription printouts from L & A Pharmacy were marked as part of Exhibit 4 covered the period July 4, 2012-May 29, 2014, there was evidence that these were all paid for by the plaintiff’s Ontario Disability Support Plan, again, with no claim of subrogation. Further, there was not sufficient evidence that the medication was prescribed as a result of injuries arising from the incident of May 6, 2011. Had there been negligence on the part of the defendant, these claims would have not been allowed and are dismissed.
[59] Regarding the caregiving claim for the assistance rendered by Mr. Abdlazeez, the Court accepts this occurred and has a value. Using a current minimum wage of $11 per hour and an average of three hours per day for 120 days (four months) following the incident, the Court assesses the claim at $3,960. Including weekly three-hour visits for an additional eight weeks, the additional cost and assessment of the claim is $264. For six additional monthly visits until the plaintiff was capable of resuming is pre-May 6, 2011 level of activity, an additional amount of $198 would be allowed. The total assessment is $4,422.
[60] There is a typewritten statement (Exhibit 28) which details the assistance provided and that the plaintiff paid Mr. Abdlazeez $100 after he sold a computer. While Mr. Abdlazeez testified he was not asking for money for his efforts, he also testified the plaintiff promised to pay him when he could for the assistance provided. Had the defendant been found to be negligent and responsible for the plaintiff’s damages, this claim would have been allowed in the amount of $4,422.
[61] Regarding the balance of the plaintiff’s claims, they appear to relate to legal expenses either directly or indirectly. The direct claim for the outstanding account of the plaintiff’s counsel was not produced but submitted to be about $3,800. It is assumed this included payment for various medical records and reports addressed to plaintiff’s counsel (and the plaintiff’s portion of the mediation expense of $847.50 which counsel for the TTC confirmed at my request in a letter dated June 26, 2015). Had the defendant been found to be negligent and responsible for the plaintiff’s damages, this amount would have been included.
[62] With regard to the indirect expenses, the plaintiff sought recovery of the following:
a) Taxi receipts marked as Exhibits 14, 15 and 43, or 14 receipts totalling $330.75;
b) Payment for a decoded OHIP summary in the amount of $140;
c) Registered mail receipts for $11.53 (Exhibit 5) and $12.11 (Exhibit 8);
d) Records Storage and Retrieval Service expenses (presumably for the clinical notes and records of the family physician, Dr. Obaji) for $60.00 (Exhibit 13 – Visa statement) and a $25 cheque (Exhibit 8).
[62] Had the defendant been found to be negligent and responsible for the plaintiff’s damages, these expenses totalling $579.39 would also have been allowed.
Costs
[63] As the claim by Mr. Ahmed is dismissed, the TTC has been successful and is entitled to its costs. However, no Costs Outline was provided at the conclusion of the trial in accordance with r. 57.01(6). Further, it is important that Mr. Ahmed, as a self-represented litigant, understand the process. Given its success at this trial, the TTC is entitled to recover its partial indemnity costs, if demanded, after assessment subject to an Offer to Settle of which the Court is unaware and may entitle the TTC to a higher level of legal costs called “substantial indemnity”. For Mr. Ahmed’s benefit, the phrase “if demanded” allows the Toronto Transit Commission the choice of whether to proceed with appearing before an Assessment Officer on a date and time to be scheduled and served on Mr. Ahmed along with a copy of its proposed account. Mr. Ahmed will have the opportunity to attend and make oral submissions about what an appropriate amount should be with regard to each step of this action. If counsel for the Toronto Transit Commission wishes to make a claim for substantial indemnity costs, she should forward me a letter, copied to Mr. Ahmed briefly setting out the basis for such a claim.
[64] Alternatively, the Toronto Transit Commission may choose to not pursue its entitlement to quantify and attempt to collect legal costs in all of the circumstances. I trust counsel for the Toronto Transit Commission will advise Mr. Ahmed of its decision in a timely manner that takes into account Mr. Ahmed’s visual impairment and difficulty with the English language.
Mr. Justice G. Dow
Released: August 7, 2015
COURT FILE NO.: CV-11-434756
DATE: 20150807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADEL AHMED
Plaintiff
– and –
TORONTO TRANSIT COMMISSION
Defendant
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: August 7, 2015