COURT FILE NO.: 05-CV-295522PD1 DATE: 20160603 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MIKE ZARAVELLAS Plaintiff – and – GARRY ARMSTRONG and THE TORONTO TRANSIT COMMISSION Defendants

Counsel: Daniel J. Holland and Silene M. Malhao, for the Plaintiff Chad Townsend and Stephen Sargent, for the Defendants

COURT FILE NO. 09-CV-00393040

AND BETWEEN: MIKE ZARAVELLAS Plaintiff

• and – CITY OF TORONTO Defendant

Counsel: Daniel J. Holland and Silene M. Malhao, for the Plaintiff Nicole D. Tellier and Divya Khurana, for the Defendant

HEARD: December 18, 2015

S.A.Q. Akhtar J.

I. FACTUAL BACKGROUND AND OVERVIEW

Introduction

1The plaintiff, Mike Zaravellas, felt that he “was born” to be a TTC bus driver. When he was offered a job by the Toronto Transit Commission (“TTC”) in 1992, his dreams came true. One year later, however, an incident involving the doors of a TTC streetcar (the “TTC Accident”) shattered his dreams and precipitated a chain of events which he claims led to lifelong physical pain and psychological distress.

2In December 2007, when walking to a local bus stop, the plaintiff suffered a further injury by slipping on an icy sidewalk ensuing from a snowstorm that had occurred a week earlier.

3The plaintiff, in two separate actions, alleges negligence on the part of the TTC and the City of Toronto and seeks substantial damages. These reasons set out why both actions are dismissed.

The Plaintiff’s Background

4The plaintiff is a 52-year-old man with a varied employment history. Originally born in Toronto, he moved to Greece at the age of six, returning to Canada in 1985 after performing 22 months of national service in the Greek army. He worked as a waiter for a number of restaurants including Tom Johnston, Eddy’s Dining Lounge and the Silver Rail. He also found employment as a school bus driver at Stock Transportation Limited, a company used to transport students.

5His goal, however, was to work for the TTC, and he made two separate applications to fulfil this ambition. Despite being turned down on his first attempt, the plaintiff persevered and was offered a job as a bus driver on 13 September 2002. After completing a ten-month probationary period, he was promoted to Full Operator Status on 21 August 2003. The plaintiff was ecstatic and told the court that “I loved driving, it’s unionized, good pay, and this is the job for me. I was thinking, for the rest of my life.”

6The joy of being hired as a TTC bus driver was a constant thread that ran through the plaintiff’s trial testimony. His evidence was replete with his love of driving, devotion to the job, and his desire to remain working as a bus driver: for him, this was “the job of [his] life.”

The Plaintiff’s Employment and Accident History

7One of the significant features of the plaintiff’s employment history is how little he actually worked. In examination in-chief, the plaintiff sought to portray himself as having full time jobs in the months leading up to his TTC employment. His work record, however, illustrates the opposite, and reveals the plaintiff as having spent a substantial amount of time claiming benefits as much as salary in the period leading up to his hiring by the TTC.

8The plaintiff’s T4 slips disclose that his annual earnings between 1987 and 2001 amounted to approximately $11,000.00. From 1997 to 2002, the figure was approximately $9,000.00. Based on those totals, any employment would have to be sporadic or, at best, part time. The Employment Insurance applications made eighteen months prior to the plaintiff’s TTC hire date show three separate applications for sickness benefits in addition to disability applications for social assistance dated 3 October 1998 and 17 April 2002.

9The plaintiff’s prowess in holding down a job was equally erratic. He was employed by Eddy’s Dining Lounge from April 2000 to October 2001, when he was dismissed for failing to meet acceptable standards. On 8 November 2001, the plaintiff began working at the Toronto Marriott Bloor Hotel, but found his employment terminated ten days later after he had failed to attend work and respond to calls. At trial, the plaintiff testified that he could not remember if he had actually informed the Marriott of his departure.

10From 29 January 2001 to 12 February 2002, he drove a school bus for Stock Transportation. He quit because he was required to drive on Fridays and doing so would conflict with his weekend job as a waiter at the Silver Rail North.

11His tenure at the Silver Rail North ended on 23 March 2002 due to a purported rib injury, sustained at his home by trying to pick up an object from the floor while sitting on a chair. He attended North York General Hospital to report a pain on the left side of his body. X-rays taken that day, however, confirmed that there was no rib fracture.

12Prior to taking up the TTC job, the plaintiff also had a history of being involved in a number of accidents. In 1992, his car was “rear ended” in an automobile accident. Surprisingly, he could not remember or say for certain whether he had made a claim or even sustained injury.

13As a pre-condition of his employment, the TTC conducted a physical examination to confirm there were no impediments to performing the job. Despite his antecedent injuries, the plaintiff was given a clean bill of health. All remained rosy in the garden until 30 August 2003.

I. THE CLAIM OF NEGLIGENCE AGAINST THE TTC

A. LIABILITY

The TTC Accident of 30 August 2003

14Two witnesses, the plaintiff and the co-defendant, Garry Armstrong, gave evidence about the incident at the core of this trial. Each gave dramatically differing accounts.

The Plaintiff’s Evidence

15The plaintiff testified that he finished his shift at the Malvern bus garage and proceeded to make his way home at or around 10 p.m. Still wearing his TTC uniform, the plaintiff took his usual bus route across Sheppard Avenue to McCowan Road. After exiting that bus he waited for the northbound Number 129 bus, together with other passengers, at the corner of McCowan and Sheppard. When it arrived, the plaintiff stood aside as an act of courtesy to allow other passengers to board ahead of him. As he stood in the centre of the bus doorway, the driver, Armstrong, closed the doors. As a result the plaintiff was forced to block the doors to protect himself. At trial, the plaintiff demonstrated how he had done this: by extending his arms outward in front of him, at head height, and moving them apart in a very rapid movement to keep the doors open. As the doors made contact with his hands, he immediately felt pain in the back of his left hand.

16The plaintiff was familiar with the protocol governing bus drivers, which required Armstrong to look at the doors of the bus when passengers were boarding and continue to do so until the doors were closed. In this case, however, the plaintiff testified that Armstrong had been looking through the front windows of the bus when the doors closed. It was only when the plaintiff prevented the doors from closing that Armstrong turned his head in the plaintiff’s direction and re-opened the doors. By then, the plaintiff had been holding the doors apart for one to two seconds and held them in such a way that they did not close completely.

17After Armstrong re-opened the doors, the plaintiff got on the bus and said nothing. Armstrong, according to the plaintiff, informed the plaintiff that he had not seen him. The plaintiff walked to the back of the bus, his left hand now painful and swollen, and alighted five minutes later at his home stop. When he awoke the next day with his hand still swollen, the plaintiff reported the injury to his supervisor before going to Centenary Health Centre for treatment. The plaintiff described the injury as being on the top of the left hand between the index and middle finger, extending to approximately one centimetre above his wrist. Upon examination, the hospital found no fracture to the wrist and diagnosed only the possibility of a soft tissue injury.

Garry Armstrong’s Evidence

18Garry Armstrong denied the plaintiff’s version of events. Armstrong has worked for the TTC since 16 February 1998 and continues to drive buses at the present time. He agreed that the passengers waiting at the McCowan/Sheppard bus stop boarded before the plaintiff. He insisted, however, that his attention remained on the entrance doors throughout. The plaintiff was not visible when he operated the switch to close the doors but appeared suddenly, with Armstrong not knowing “where he [the plaintiff] came from.”

19Armstrong rejected any suggestion that the plaintiff used his arms to push open doors that were closing. Armstrong maintained that, upon seeing the plaintiff, he had turned the switch to re-open the doors. He never saw the plaintiff move his hands in the manner described, but was willing to concede that the door may have touched the plaintiff’s hand. Armstrong asked the plaintiff if he was “okay” as a courtesy because the doors had closed just as the plaintiff appeared. However, there were no concerns of any injuries. When Armstrong was questioned as to why he had ticked the box labelled “Caught in doors” in his incident report, he explained that this option came closest to describing the incident on the pre-set criteria on the forms. It was not, however, an acknowledgement that the plaintiff had actually been physically caught in the doors.

Was the TTC Negligent?

20There is no doubt that the TTC owed the plaintiff a duty of care. The plaintiff argues that Armstrong breached that duty when he prematurely closed the doors before the plaintiff had safely entered the bus.

21Since only the plaintiff and Armstrong were called as witnesses to the incident, their individual credibility is of paramount importance.

22Dealing first with the plaintiff, I found him to be a very unimpressive witness. He was evasive, argumentative and, at times, more interested in simply advancing his own position than responding to questions from counsel. His continuous failure to answer questions due to a lack of memory gave the appearance of a person who was doing his best to avoid committing himself to a position in areas that did not assist him. Finally, as will be discussed in detail throughout this judgment, his testimony was replete with inconsistencies and contradicted by the facts.

23On the other hand, I found Armstrong to be a reliable witness who sought to answer questions in a truthful fashion. He was willing to concede points that might not have assisted him, and his evidence, as discussed below, was logical and consistent. Although he was unable to remember some aspects of the incident, he was not shaken on the important points of his evidence.

24The following additional reasons explain why I conclude that the plaintiff’s claim of negligence fails.

(a) The Circumstances of the Injury

25The plaintiff, on several occasions, spoke of the manner in which the doors made contact with his hand. At times, there were variations to his account. For example, at one point he demonstrated that, as he approached the doors, he took a step forward signifying entry onto the bus. In cross-examination, however, he denied placing his foot on the entrance step.

26The plaintiff appeared to settle on the position that his upper body was inside the doorframe of the bus. In cross-examination, he indicated a leaning motion into the bus implying partial entry. Later, the plaintiff agreed that his hands were several inches in front of his body and he demonstrated his location by leaning forward and then moving his arms across his body in a horizontal motion. In his words “as I was going in, going in, my force, going in and I block.”

27The plaintiff’s position in relation the door frame is very important and his testimony on this point significantly undermines his version of events. Samuel Kodsi, an engineer retained by the TTC to examine the impact of closing doors on a person’s hands, gave evidence supported by video recordings that TTC bus doors do not open and close in a straight horizontal direction as described by the plaintiff. Instead, they initially open slowly in a horizontal motion and then swing outwards. When closing, the doors operate in reverse, slowly swinging inwards before closing horizontally.

28The result is that if the plaintiff had been entering the bus in the manner he described the doors would have hit the sides of his body and not his hands. In order for the doors to close on the plaintiff’s hand as described, the plaintiff would have had to be standing further back away from the bus. The plaintiff’s various demonstrations consistently put his hands approximately 8-9 inches in front of his body. In order for the doors to make contact with the hands in this position, his body would have been comfortably outside the bus entrance and well out of harm’s way.

(b) The Injury to the Hand

29The plaintiff described his hands moving very rapidly and with some force to ensure the doors did not close upon him. Despite the fact that both hands were used, only the left hand was apparently injured. At trial, he claimed that he felt immediate pain and swelling. Yet, in the TTC’s Major/Minor Accidental Injury Report dated 31 August 2003, the plaintiff is quoted as saying that he felt pain when he woke up the next day.

30The Centenary Health Centre found no evidence of bone fracture and only a small scratch present on the plaintiff’s wrist. The doctors concluded that there was soft tissue damage. A second x-ray, the result of a referral by the plaintiff’s family doctor, confirmed that fact. Surprisingly, the plaintiff, at trial, purported not to remember the results of the second x-ray.

31These inconsistencies and the lack of any serious injury being found by the hospital cast further doubt on the plaintiff’s account.

(c) The Plaintiff’s Account of the Incident to Dr. Hoffman

32When examined by Dr. Hoffman, the defendant’s medical expert, the plaintiff was asked to recount the history of the injury. He told Dr. Hoffman, in an answer unchallenged in cross-examination, that the injury had occurred when he was exiting the bus rather than upon entering it.

(d) The Plaintiff’s Failure to Alert Armstrong

33By the time of the incident, the plaintiff been employed by the TTC for almost ten months and was fully aware of the protocol to be followed in the event of an accident on a TTC vehicle. The bus would have to stop and the authorities would be alerted. The plaintiff would have known it was incumbent on Armstrong to follow this procedure once the plaintiff’s hands had been injured. Yet Armstrong failed to do so and, more significantly, neither did the plaintiff. By his own account, the plaintiff said nothing to Armstrong even though he was in immediate pain whilst he was on the bus. If the incident happened as he described, one would have thought that the plaintiff would have immediately informed the driver yet he did not and offered no adequate explanation for his failure to do so.

(e) Where Was the Plaintiff Standing?

34The plaintiff’s main attack on Armstrong’s evidence was directed at the issue of whether he had been looking at the doors at the time he made the decision to close them. Armstrong insisted that he had and I accept his evidence. Armstrong’s observation that the plaintiff “appeared out of nowhere” is consistent with the plaintiff’s own testimony that he had allowed other passengers to enter the streetcar ahead of him, leading to the inference that he had been standing on the side of the streetcar towards the rear and out of view. In attempting to get on the bus, the plaintiff would have emerged from an angle that was outside Armstrong’s field of vision when he chose to close the doors.

Conclusion

35For the above reasons, I reject the plaintiff’s account of the events of 30 August 2003. I find that there was no negligence on Armstrong’s part when he closed the doors of the bus he was driving. Perhaps the plaintiff’s hand brushed against the door frame as Armstrong reopened the doors. The onus is on the plaintiff to demonstrate the defendant was negligent and he has failed to discharge his onus and thus his claim must fail.

Causation

36In the event that I am wrong on the issue of liability, I will deal with the issue of causation. Even if I had found Armstrong to be negligent in prematurely closing the doors, the plaintiff would still fail to prove that this negligence caused any of the injuries claimed.

Legal Principles

37The test for causation in negligence is the “but-for” principle, where the plaintiff bears the burden of demonstrating that “but for” the defendant’s negligence, his or her injury would not have occurred. A “but for” finding of causation need not require the conclusion that negligence was the sole cause of injury: B. (M.) v. 2014052 Ontario Ltd., 2012 ONCA 135, at para. 29.

38In Resurfice Corp. v. Hanke, 2007 SCC 7, McLachlin C.J. explained the operation of the test in the following way, at para. 23:

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

39In Clements v. Clements, 2012 SCC 32, at paras. 8 and 9, the Supreme Court of Canada defined the test as:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [Citations omitted.]

Did TTC’s Negligence Cause the Plaintiff’s Injuries?

40Based upon these principles, if I am wrong and Armstrong was negligent in closing the doors prematurely, that negligence was not a cause of the injuries described by the plaintiff.

41As noted earlier, the defendant called Samuel Kodsi to offer expert opinion on the issue of causation. He testified that even if the incident ocurred in the manner described by the plaintiff, it would not result in the injuries the plaintiff alleges he sustained. Kodsi demonstrated that the closing of bus doors upon a person’s hand would cause no harm. Then, even if the plaintiff had raised his hands and held them stationary, allowing the doors to close upon them, Kodsi’s video clearly shows that no harm would have followed. In my view, as stated above, the plaintiff’s own version of events indicates that he was standing outside the bus and extended his hands in order to prevent the doors from closing. This could not be to protect himself, as the extension of his hands meant that he was outside the bus. Had the plaintiff done nothing, the doors would have closed without obstruction, never making contact with the plaintiff. If the plaintiff’s account was true then in seeking to prevent the doors from closing and pry them open, his own actions, not Armstrong’s, were the cause of any injuries that followed.

42I note that the plaintiff called no expert opinion evidence to demonstrate how the doors could inflict the injury he complains of. I would have expected to hear such evidence on the issue of causation if there was such a link especially bearing in mind the burden of proof lies on the plaintiff.

B. DAMAGES

43The plaintiff claims damages for the long-term injury to his hand, the effect on his employment prospects, and the deterioration of his mental health.

The Injury to the Plaintiff’s Hand

44The plaintiff attributed the continuous and severe pain in his left hand entirely to the TTC accident. Performing repeated movements such as lifting, pushing and holding items would, in his words, increase his pain level to 8 on a pain scale of 1 to 10. Mundane activities such as mopping the floor or shaving would result in extreme discomfort. According to his testimony in chief, his pre-accident physical health was “very good, physically and psychologically”.

45Yet, in cross-examination, he was forced to paint a different picture. There were continuous complaints of lower back pain recorded during the 1990s by his family doctor, Dr. Friesner. These were accompanied by numerous other complaints including a number of physical ailments, sleep complaints, cholesterol and depression. The plaintiff’s description could not be described as accurate.

Medical Assessment of the Plaintiff

46Dr. Abraham Friesner was the plaintiff’s family physician, whose involvement in his care began in early 1992. His reports catalogue a wide variety of complaints by the plaintiff: lumbar complaints, dizziness, lack of sleep, muscle stiffness, abdominal pains and headaches. Dr. Friesner was responsible for many referrals of the plaintiff to various medical experts. Despite seeing him over a substantial period of time, there would be occasions where the plaintiff would attend other doctors. The evidence disclosed that the plaintiff did not visit Dr. Friesner from March 1996 to May 1997 and from October 2000 to April 2002.

47Orthopaedic surgeons Dr. Rick Zarnett, Dr. Charles Wright and Dr. Binhammer, all gave evidence on behalf of the plaintiff. Additional evidence was provided by Dr. Yufe, a neurologist. The main point of contention was the cause of the plaintiff’s continuing difficulties with his left hand.

48Dr. Wright diagnosed a neuroma in March 2004 based on Tinel’s tests – a light tapping performed on the plaintiff’s hand – that caused the plaintiff to report pain upon touch. Significantly, Dr. Wright took the view that the plaintiff was not suffering from Regional Sympathetic Dystrophy, also known as Complex Regional Pain Syndrome (CRPS), which is a condition resulting from a trauma with symptoms of pain and tenderness.

49Contrary to Dr. Wright, Dr. Zarnett, whose principal job was to analyse the effect of the fracture on the left hand, diagnosed the plaintiff with CRPS. Dr. Zarnett, again contrary to other opinions, appeared to indicate that the plaintiff might well be suffering from a neuroma. He later clarified that he took that position based on Dr. Wright’s diagnosis. His diagnosis of CRPS was likewise based on information provided by the plaintiff. Dr. Zarnett conceded that Dr. Paul Binhammer, a hand specialist, had more expertise in diagnosing hand injuries and neuromas.

50Dr. Binhammer was, in my view, the most impressive of the surgeons who testified. He explicitly ruled out the presence of a neuroma and, significantly, did not diagnose CRPS, due to lack of tell-tale symptoms such as moist hands and discolouration. Dr. Binhammer also testified that the plaintiff’s descriptions of pain would be inconsistent with the plaintiff being able to place his hands in his pocket or lean on his hand, and noted that the manner in which the plaintiff used his hands was inconsistent with the pain being declared. Ultimately, he could find no physical explanation to account for the plaintiff’s pain. Dr. Binhammer concluded that any injuries sustained in the TTC Accident did not affect the plaintiff’s daily living or care activities.

51Dr. Robert Yufe also ruled out CRPS, on the basis that the physical characteristics of this condition were not present. He was unable to complete a diagnostic test to find a neuroma because the plaintiff refused to co-operate, reportedly out of fear. When Dr. Yufe approached the plaintiff to examine his left wrist, the plaintiff recoiled, thereby preventing any form of examination. Limited by the plaintiff’s refusal to allow him to meaningfully examine his hand, Dr. Yufe testified that, from his visual observations, he was unable to see a neuroma. From a neurological standpoint, Dr. Yufe concluded that the plaintiff sustained no injury precluding the use of his left hand. Dr Yufe cautioned that only a nerve conduction test could suitably evaluate any damage. That, however, could not be undertaken, because the plaintiff would not allow it.

52The plaintiff’s refusal to be tested did not end there. Dr. Abraham Chaiton sought to perform an electropulse test to discover the extent of any nerve damage in the plaintiff’s left hand. According to Dr. Chaiton’s letter to Dr. Friesner dated 9 January 2004, “only a borderline sub-threshold stimulus was administered” but the plaintiff withdrew his hand “suddenly and violently” while screaming at the same time. As a result, the test was not completed. Dr. Chaiton’s letter indicates that only “1 in 1000” persons are unable to tolerate the procedure.

53On 3 February 2004, the plaintiff saw Dr. Joseph Kwok on referral from his family doctor. Dr. Kwok found no swelling and deformity or damage to tendons. However, the plaintiff again refused to allow a full physical examination of his left hand despite complaining of pain.

Termination of Employment with the TTC

54Despite the absence of any evidence of a fracture or other lasting injury to his hand, the plaintiff felt he was unable to drive a bus.

55Upon returning to work on 15 September 2003, he was assigned a number of alternative non-driving tasks such as Crash Gate duties. On 29 October 2003, the TTC detailed the plaintiff to sell pizza at the Bloor subway station for the United Way cause. The plaintiff’s responsibilities included wrapping up pizzas for sale to customers. Even this endeavour, however, proved to be too much: the plaintiff testified that the repetitive nature of this task caused him to develop a severe pain in his left hand causing him to be taken to the Toronto Western Hospital. Despite this setback, he returned to his Crash Gate duties the next day.

56On 19 February 2004, at Union Station, the plaintiff suffered another incident: he felt sick, threw up and began to feel ill. He left his Crash Gate post and went to the Go Station area, where he could warm up in the janitor’s room. On returning to his post, he was questioned by his supervisor who wrote him up for disciplinary purposes and sent him to St. Michael’s Hospital.

57On 20 March 2004, he was fired by the TTC. After initiating disciplinary proceedings, the plaintiff was reinstated to light duties. The Memorandum of Settlement indicates that he was so assigned “for payroll purposes only”.

The Driving Test Run

58The TTC sought to return the plaintiff to work through a “graduated return to work” program in late 2004. The plaintiff initially resisted, expressing fears of accidents and a lack of confidence in the program. Nonetheless, he was persuaded to participate in a TTC supervised bus drive that took place on 28 March 2005.

59It did not go well. The plaintiff was emotional as he gave evidence of the incident. While driving for approximately two to three hours, the plaintiff’s hand proved painful throughout. The plaintiff strove to ignore the pain but was overcome by the agony of repetitive hand movements. Eventually, the pain became so severe that the plaintiff was forced to stop driving, resulting in the instructor having to transport the bus back to Malvern station. The plaintiff told the court that he had tears in his eyes and felt “useless”. That night he suffered a severe panic attack. Despite the many instances for which he professed no memory, this was a night he could not forget: he got dressed and went to his local library.

The Slip and Fall of 2005

60The distressing events of 28 March 2005 were to have additional consequences. A further bout of depression brought on by the failed test led the plaintiff’s treating psychiatrist, Dr. Gotkind, to prescribe anti-depressant medication. Whilst this proved beneficial in combatting the plaintiff’s depression, the medication made him feel so groggy that, at times, he became unsteady on his feet.

61On 18 July 2005, after taking a shower at his apartment at 15 Blueberry Drive, the plaintiff slipped in his hallway and broke his left wrist. In the plaintiff’s mind, there was no doubt as to the cause of his misfortune. He testified that “I believe that if I never took this medication from Dr. Gotkind because I was unable to drive on March 28, 2005, I wouldn’t slip and fell and broke my wrist.” As a result, the plaintiff links the 2005 slip and fall and its ramifications to the 2003 TTC accident through the use of medication taken to treat the depression caused by the 2003 accident.

62The plaintiff’s wrist was reset at the North York General Hospital but continued to cause him pain. The plaintiff testified that, prior to the 2005 fall, the pain had diminished but not fully disappeared, as it would increase when he engaged his left hand in repetitive movements. The new wrist fracture, however, made life worse. Initially, complications arose during recovery as the healing process caused the wrist to set in an incorrect position. Dr. Axelrod, the plaintiff’s surgeon at Sunnybrook Hospital, advised the plaintiff that the wrist had to be re-broken and reset with metal inserts. The plaintiff refused to agree to this surgical option because he feared that it might cause a further deterioration of his condition.

63During his testimony, the plaintiff demonstrated the permanent damage done to his wrist by placing a dollar coin on the palm of his left wrist. The effect was to force him to bend forwards at approximately 45 degrees to the left. He made clear that he was unable to fully rotate his left wrist.

Was the July 2005 Slip Connected to the 2003 TTC Accident?

64As noted earlier, the plaintiff seeks to link the July 2005 fall to the TTC accident through the medication taken to deal with the trauma of the August 2003 test drive.

65For the following reasons, I reject the plaintiff’s position.

66First, the plaintiff’s story is inconsistent. He gave evidence that he fell in his apartment after leaving his bathtub following a shower and, groggy from the medication, he saw water on the hallway tile and sought to mop it up. As he did so, he fell and fractured his wrist. This account, however, is contradicted by what he told staff at the hospital when questioned on the injury: according to the hospital report, the plaintiff explained that he had “slipped in shower and broke L wrist”.

67Secondly, although the plaintiff claimed that the medication made him feel groggy, drowsy and unsteady on his feet, it is clear that he had been taking it for many months prior to July 2005 without any incident. The plaintiff also conceded that he took antidepressant medication from 1998 to 2000. Once again, there were no occasions where he fell as a result. Moreover, when asked whether the medication taken in that period made him feel groggy, the plaintiff replied that he could not remember. I find that lack of recollection to be unworthy of belief, particularly in light of what happened afterwards.

68Thirdly, the plaintiff testified that, as a result of the incident, he stopped taking the medication because he feared further falls. However, his current treating psychiatrist, Dr. Frederick Kroft, agreed that his records show the plaintiff continued to take the medication for at least six months after the July 2005 fall. Furthermore, the reason the plaintiff ultimately discontinued the medication was that he believed that it was adversely affecting his bowels.

69Finally, for the TTC to be liable for an accident that occurred two years after its allegedly negligent act, the plaintiff must demonstrate that the July 2005 fall was a reasonably foreseeable consequence of the defendant’s initial negligence: see Plouffe v. Roy, [2007] O.J. No. 3453 (S.C.J.), at paras. 78 to 84. He fails to do so as I am not satisfied that the July 2005 fall was a reasonably foreseeable consequence of the TTC doors closing on the plaintiff’s hands two years earlier. As a result, damages arising from the plaintiff’s July 2005 wrist fracture fail the test of remoteness.

What Is The Extent of Physical Damage Arising From The TTC Accident?

70The plaintiff claims that the TTC Accident injured his left hand to the extent that he was unable to use it in a repetitive fashion, hold and carry objects and, ultimately, drive a bus.

71I reject the plaintiff’s claims and find that the plaintiff suffered no lasting injuries to his hand. I also find that the plaintiff was fully aware of that fact. I come to this conclusion for the following reasons.

72First, as set out earlier, the evidence shows that the accident could not have occurred in the manner described by the plaintiff. Even if I am wrong on that point, the objective evidence demonstrates that there was minimal injury to the plaintiff’s left hand. The plaintiff made no mention of injury at the time of the incident, nor did he go to the hospital until the next day. The lack of complaint might be seen as uncharacteristic bearing in mind the plaintiff’s eagerness to complain of discomfort, pain or illness on other occasions.

73Secondly, the medical evidence overwhelmingly points to there being no injury to the plaintiff’s left hand. When examined at the Rouge Valley Centenary Hospital, the plaintiff was told that there had been no fracture of the wrist and that he may have “soft tissue” damage. Despite the absence of any physical damage, the plaintiff continued to complain of severe pain in his left hand. As noted, only one doctor, Dr. Wright, diagnosed a neuroma as the cause of the plaintiff’s sensitivity. However, both Dr. Yufe and Dr. Binhammer explicitly ruled out that possibility. Dr. Binhammer went further, agreeing that he could not find anything to account for the pain related by the plaintiff. Mr. Holland, counsel for the plaintiff, with characteristic candour, conceded that the preponderance of the evidence pointed to the fact that no neuroma existed. Similarly, even though Dr. Zarnett diagnosed CPRS based on the plaintiff’s reporting, both Dr. Binhammer and Dr. Yufe ruled it out based on a lack of objective evidence.

74What, then, is the cause of the mysterious ailment that plagues the plaintiff’s left hand? The difficulty in answering this question is caused by the plaintiff’s own actions. When Dr. Chaiton delivered a “borderline sub-threshold” stimulus to begin his electro pulse test, the plaintiff screamed with pain. Similarly, when Dr. Yufe and Dr. Kwok sought to examine his hand, the plaintiff refused to permit them to do so. The bottom line is that meaningful testing to determine the cause of pain has never taken place because the plaintiff will not allow it.

The Inconsistencies In The Plaintiff’s Account

75By way of explanation, the plaintiff submits that this is an issue of perceived pain caused by the trauma of the TTC accident. The evidence proves otherwise: Dr. Binhammer made several observations casting doubt on the plaintiff’s symptoms of pain. For example, the plaintiff was seen touching his hand in the purportedly painful area without experiencing discomfort. Additionally, it was clear to Dr. Binhammer that the plaintiff could manipulate clothing and paper documents without difficulty. Dr. Binhammer noted these incidents as being of significance.

76The inconsistencies do not end with the medical examinations. On 29 October 2003, when the plaintiff complained of pain in the course of handing out pizza at Bloor Subway station, an ambulance attended to take him to hospital. One of the attendants, Scott Rumble, made enquiries of the plaintiff and performed a visual inspection of what the plaintiff described as the distressed hand. Surprisingly, Rumble’s notes in the Ambulance Call Report recounts the plaintiff complaining about his right hand. Rumble testified that he had made five different references to the right hand as the affected hand in his notes.

77Remarkably enough, the same error occurred on 28 March 2005, the date of the plaintiff’s TTC test drive. As noted, the plaintiff withdrew from driving by reason of severe pains to his left hand and then went to the Centenary Health Centre. The hospital’s emergency record notes the plaintiff’s chief complaint to be an injury to his left hand. However, for reasons unexplained, x-rays were taken of the plaintiff’s right hand.

78Whilst each of the incidents might individually be explained as accidental error, the fact that the same bizarre oversight occurred twice suggests a different reason: the plaintiff’s claim of pain was false. If, as he claimed, he was suffering pain on a scale of “ten out of ten” on 28 March 2005, it is hard to understand why he would permit an x-ray of a hand suffering no pain to be taken. Similarly, I accept Rumble’s testimony that he attempted to note the plaintiff’s complaints accurately and that the plaintiff was complaining about the right hand. Together, the two incidents indicate that the plaintiff was simply manufacturing reports of pain.

79Any doubts on the issue are settled by video recordings made in 2006 and 2009 when the plaintiff was being surreptitiously surveilled. In one series of recordings, made in August 2006, the plaintiff is seen putting his hands in his pockets and placing his left hand palm up on a table without any discomfort. Dr. Binhammer, as previously noted, testified that these actions would be irreconcilable with the pain that the plaintiff was reporting at his examination.

80In a different recording dated 26 March 2009, the plaintiff is seen purchasing items and returning home from a visit to his local grocery store. The significance of this recording becomes apparent on reviewing the medical evidence. Dr. Yufe testified that the plaintiff had informed him that the pain in his hand would be aggravated by lifting or holding items. When questioned about the same issue in cross-examination, Dr. Binhammer provided the following answers:

Q. And did you take a history of the current complaints he had when you saw him in May?

A. Yep. So, he told me that he had a pain on a scale of 4 out of 10 that never went away, the pain increased to 8 out of 10, eight to ten out of 10 with use and zero is usually regarded as no - when you ask the patient this, zero is no pain and 10 is the worst pain you can possibly imagine. And he indicated the pain when he was doing nothing and when he did activities he would have the pain that went to 8 to 10 out of 10.

Q. What activities there do you note in your report, Dr. Binhammer?

A. Lifting, pushing, pulling, washing dishes, carrying grocery bags were examples he gave me.

Q. All right. And what would he do-what did he reports you in terms of trying to alleviate this pain?

A. So, he’d have to stop what he was doing to relieve his pain, but that he didn’t take any medication for his pain.

81The video recording, however, provides a dramatic contradiction: the plaintiff is seen picking up items at the grocery store and placing them in a shopping basket carried effortlessly in his left hand with his arm bent without any apparent pain. Minutes later, the plaintiff is captured carrying full grocery bags, three in his left hand and two in his right, with no difficulty or discomfort. When the plaintiff arrives at the entrance to his apartment building, rather than put the bags down, he transfers the bags held in his right hand to his left so that he can open the door with his key. At this point, the plaintiff is now carrying five full bags without exhibiting any indication of pain, distress or discomfort.

82Finally, the plaintiff’s own actions demonstrate the vacuousness of his disability claims. For example, when questioned about the effect of the injury to his left hand in the context of household chores, the plaintiff responded with the comment that, when shaving, his left hand would hurt so much that he would have to rest it. Yet, as pointed out by the defendant’s counsel, the plaintiff is right-handed.

83It is also telling that, faced with the loss of his job as a bus driver, a job he felt to be “the best job I’ve ever had”, the plaintiff made few efforts to find a solution to his ailments. He refused meaningful tests to assist in the identification and potential cure of his injuries, refused to take medication, and ignored the advice of medical experts.

84It would not be unduly cynical to view the plaintiff’s actions as only alleging pain when being examined for it. The evidence leads me to believe that the plaintiff was, at minimum, wildly exaggerating his pain so that he could avoid proper testing and be diagnosed with a physical ailment.

The Reluctance to Return to Work

85In addition, any efforts made by the TTC and the Workplace Safety Insurance Board to facilitate a return to work were met with resistance. The plaintiff objected to the “graduated return to work” programme created by Diane Ly, an occupational nurse assigned to the plaintiff to get him back to driving a bus. On 27 August 2004, the plaintiff wrote a letter to Dr. Friesner in which the plaintiff explained that he “came to the conclusion that [Ly’s] plan may not work” and that he had his own plan. The plaintiff complained that Ly’s plan would affect his ability to drive even though the programme was designed to rehabilitate him. He concluded by stating: “I will only agree to start her plan if it is with the understanding that if I am unable to continue at some point and time the plan will be discontinued. We will then discuss a better solution.”

86Despite this objection, the TTC persisted with its attempts to rehabilitate the plaintiff and return him to work. On 22 October 2004, he was sent to Dr. Binhammer for an assessement to decide his suitability for a work trial due to commence on 25 October 2004. The assessment included grip testing, which was performed and completed without any reported issues. That afternoon, however, the plaintiff called the WSIB to register his concerns that his return to work might result in an accident. The WSIB responded with a series of calls to reassure the plaintiff and to advise him that he was expected to show up on 25 October 2004. The plaintiff refused, blaming an injury sustained in his grip testing with Dr. Binhammer. That injury had never been complained of at the time or verified subsequently.

87In March 2005, the plaintiff finally acquiesced and commenced the return-to-work plan. His efforts lasted only a day. The ill-fated 28 March 2005 test drive, described above, was cut short by the plaintiff’s complaints of severe pain in his left hand. As noted, when attending Centenary Health Centre, the wrong hand was submitted to be x-rayed.

88At the risk of repetition, I can only conclude from this evidence that the plaintiff was not interested in returning to the job that he professed to “love”. In my view, that was because he knew that there was nothing wrong with his left hand and was focused on one goal: to obtain compensation without the need to work.

The Disability Claim

89At this stage, I pause to comment on an issue raised by both parties in their closing addresses. In an attempt to counteract the allegation that he was malingering, the plaintiff points to TTC (and Canada Pension Plan) approval of his long-term disability benefits as evidence of acknowledgement of his physical condition.

90I reject this argument as no evidence was led providing the reasons why these bodies came to the decision that they did. In the absence of such evidence, I do not know if the plaintiff’s disability was accepted or whether there were other pragmatic reasons of accommodation to remove the plaintiff from the TTC payroll.

91In any event, I agree with the TTC that, after hearing the evidence called at this trial, I am in a far better position to decide the issue. The evidence that I have outlined overwhelmingly demonstrates that the plaintiff was not injured or disabled.

Psychological Damage Arising From The TTC Accident

92As noted earlier, the plaintiff also seeks damages for the deterioration of his mental health arising out of the TTC Accident.

Medical Psychiatric Evidence

93Dr. Abraham Friesner, the plaintiff’s family physician since 1992, recorded both his physical and mental health issues. In 1998, the plaintiff was diagnosed with depression accompanied by lack of sleep and was prescribed Elavil, an antidepressant. The initial dosage prescribed increased from 50 mg to 75 mg in October 1998.

94Dr. Abbas Azadian saw the plaintiff in early 2015, evaluating him for post-traumatic stress disorder (PTSD) using the Treatment Outcome for PTSD. He concluded that the plaintiff’s problems started with the 2003 TTC Accident.

95Dr. Paul Robinson, a clinical psychologist, was retained by the Sun Life Financial Company to evaluate the plaintiff’s psychological condition, notwithstanding its cause. His report, dated 17 March 2009, recounts the testing procedures used. Dr. Robinson discounted PTSD as being an appropriate diagnosis.

96Dr. Frederick Kroft is the plaintiff’s current treating psychiatrist and first saw the plaintiff in September 2005. Dr. Kroft diagnosed the plaintiff as suffering from Major Depressive Disorder and PTSD caused by a combination of the TTC Accident and the July 2005 slip and fall.

97Dr. Brian Hoffman was retained by the TTC and testified as an expert in the field of psychiatry. He met with the plaintiff and prepared a report dated 8 December 2007. In his view, the plaintiff did not suffer from PTSD but from major depression or a somatoform disorder, where a person suffers physical symptoms caused by emotional stress. Dr. Hoffman testified that this disorder existed prior to the 2003 TTC Accident and the plaintiff continued to suffer from those symptoms.

The Plaintiff’s Credibility and Inability to Remember

98I pause at this juncture to make some general comments with respect to the plaintiff’s credibility. I have already commented on the plaintiff’s general veracity as a witness. I now turn to some of the content of his testimony, the most significant aspect of which was his inability to remember events that most might regard as unforgettable.

99For example, when asked whether he was “mostly healthy psychologically in the 2 or 3 years before the accident”, the plaintiff replied he could not remember. When confronted with specific details about his health, the plaintiff testified that he could not remember the following details:

• whether he had been referred to a chiropractor after a motor vehicle accident in 1993;
• whether he complained to his family doctor about lower back pain;
• whether he experienced headaches at times;
• whether he was sent for an x-ray of his skull to determine the cause of his headaches;
• whether he was having nightmares about being forced to go into the army;
• whether he was taking antidepressant medication in May 1999;
• whether he had taken antidepressant medication before the TTC Accident;
• whether he suffered from anxiety attacks before the TTC Accident;
• whether he had imagined having the number “666” on his brain;
• the length of time he was taking medication.

100Further, the plaintiff was questioned about his visit to Dr. Martin Rudnick on 27 February 2001, who recorded the plaintiff’s answers about his pre-existing medical history as including failing vision, fainting spells, muscle weakness, headaches and difficulty sleeping. When the plaintiff was asked whether this medical history was accurate, he replied that he could not remember. He was even unable to remember whether the doctors who had taken an x-ray of his hand, after the TTC accident, had told him there was nothing wrong.

101His lack of memory was not restricted just to his medical history. When questioned about his previous employment he was unable to remember the following: whether he had actually worked 40 hours a week for any year between 1986 and 2002; whether he had an employment insurance benefits claim in 1994; how many jobs he had been dismissed from; or why he stopped work for one of his previous employers, the Toronto Marriott hotel.

102In both examination-in-chief and cross-examination, the plaintiff was asked about a number of falsehoods contained in his résumé and application for the TTC job. He admitted to lying to the TTC about completing Grade 12 education because he “wanted the job so very much”. He also failed to list all of his numerous employers. When it was suggested that he might have done this deliberately because the TTC would be more reluctant to employ him if they knew that he had switched jobs far more frequently, the plaintiff replied the he could not remember. Later on he agreed that he had given the TTC the wrong information because he wanted the job so badly. Moreover, when speaking to the TTC recruiter as part of his job application, the plaintiff indicated that he had driven 20 to 25,000 miles the previous year. That, too, was not true, although the plaintiff could not remember if he had given that information simply because he wanted the job.

103The plaintiff was also inconsistent with prior testimony at discovery hearings. For example, when questioned about an accident that occurred at the Sobeys grocery store in June 2008, he initially claimed that his left hand had been injured but subsequently testified that it had been his right hand. It is hard to imagine the plaintiff forgetting further injury to a hand that had caused so much anguish. In another example, when describing the rib injury sustained in March 2002, the plaintiff testified at discovery that the injury had occurred whilst he was in a car. At trial, however, he claimed the injury occurred when he was at home and sitting in an arm chair.

104Finally, the plaintiff’s professed love for driving a bus and proclaimed devastating psychological impact of being unable to resume his job are implausible when juxtaposed with his failure to meaningfully attempt a return to work.

Were the Plaintiff’s Psychiatric Difficulties Caused by the TTC Accident?

105The plaintiff’s reliability and truthfulness become even more important when considering the psychiatric opinion evidence which depends, to a great extent, on the plaintiff’s self-reporting of the facts. For the reasons set out previously, I place little weight on the plaintiff’s evidence either as a witness or a historian.

106It is also worth remembering that the psychiatric experts did not have the benefit of extrinsic information, such as the video recordings available at trial. That evidence suggests that the plaintiff was at best exaggerating the extent of his injuries, and at worst malingering. Dr. Kroft conceded that it would be possible to be deceived by the plaintiff but he thought the plaintiff to be “a very honest man, he was not trying to gain secondarily from his emotional and physical suffering.”

107There is a clear conflict between the experts with respect to the psychiatric illness suffered by the plaintiff and its causes.

108I find Dr. Azadian’s evidence to be of little assistance. In cross-examination, he conceded the difficulties in interviewing the plaintiff. Since his diagnosis was based largely on the plaintiff’s medical history and self-reporting, I would have expected Dr. Azadian to seek some corroboration when forming his opinions. Yet, despite agreeing that accuracy of information was essential, Dr. Azadian restricted his evaluation to an interview with the plaintiff – no family or friends were contacted to verify the information received.

109Dr. Azadian’s first report was also replete with errors and required correction upon the plaintiff’s instructions. According to Dr. Azadian, the plaintiff’s history of depression was an important factor. However, his diagnosis was based on the fact that even though the plaintiff had depression, he had not been on medication. This fact was contradicted by Dr. Friesner, who confirmed that the plaintiff had been taking Elavil for depression throughout 2002. Even though Dr. Azadian diagnosed PTSD based on the test performed, he was forced to concede that the plaintiff did not meet the PTSD criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Finally, Dr. Azadian recognised that the Clinician Administered PTSD Scale (CAPS) test used by Dr. Robinson, which rejected PTSD, was more reliable than the test he used.

110Dr. Robinson concluded that the plaintiff was not suffering from PTSD but from a pain disorder and major depression. He did not, however, identify the cause of these illnesses. There were other problematic aspects in Dr. Robinson’s examination of the plaintiff. The Pain Patient Profile Test (P3) is a test that normally takes 15 to 20 minutes to complete. The plaintiff required over two hours. This extended length of time gave Dr. Robinson cause for concern especially as, in completing the report, the plaintiff endorsed extreme ratings. Although the test was valid, Dr. Robinson concluded that the results had to be considered with a degree of caution.

111The lengthy period taken to complete the P3 test meant that Dr. Robinson was unable to administer further tests. However, he did form the opinion that PTSD was not an appropriate diagnosis based on the CAPS test. Dr. Robinson’s verdict was that the plaintiff was suffering from a pain disorder and Major Depressive Disorder.

112Dr. Kroft, like Dr. Azadian, concluded that the plaintiff suffered from PTSD. However, I find Dr. Kroft’s evidence to be so unreliable, for the reasons described below, that I must reject it.

113First, Dr. Kroft cannot be treated as an impartial witness. His assistance to the plaintiff went well beyond his duty as a psychiatrist. Dr. Kroft wrote letters on the plaintiff’s behalf for various claims and provided names of personal injury lawyers to assist him in litigating his case. His belief in the plaintiff’s honesty was formed in ignorance of the many instances, described above, in which it is clear that the plaintiff was malingering. Dr. Kroft’s belief in the plaintiff’s honesty flowed from what the plaintiff told him. Even when confronted with examples where there was a potential that the plaintiff was feigning or exaggerating injury to avoid work, Kroft’s response was “I guess it’s a possibility if you don’t know the patient well.”

114Moreover, Dr. Kroft’s analysis of the plaintiff’s PTSD appeared to rest on an erroneous foundation. When asked whether he had consulted the DSM-IV (the previous edition of DSM-5) when diagnosing the plaintiff’s PTSD, Kroft’s response was: “I don’t know what I did at the time. Sometimes I look at it and sometimes I remember, or, you know, I go by memory. I don’t know what I did at the time. I did have a DSM-IV at the time same as this one.” At trial, however, Kroft appeared to take the view that the DSM-IV did not require a serious injury to fall within the PTSD criteria. He was wrong. The DSM-IV diagnostic criteria reads as follows:

Diagnostic criteria for 309.81 Posttraumatic Stress Disorder

A. The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person’s response involved intense fear, helplessness, or horror.

115When confronted with the actual text, Dr. Kroft conceded that he was mistaken but continued to advance the view that the plaintiff’s injuries were sufficient to meet the criteria. As he explained, the plaintiff “told me that he couldn’t move his arm and, et cetera, and his wrist, and that he had been to doctors, and that, and that he was showing me the emotional, the crying, the upset, the depression altogether. So I felt it was serious enough.”

116This passage exemplifies the difficulties with Dr. Kroft’s evidence: it was based entirely on the plaintiff’s self-reporting and Dr. Kroft’s belief that what he was being told was authentic. The corollary is that if the plaintiff was not telling the truth and was unreliable, the same holds true for Dr. Kroft’s diagnosis. As has already been made clear, I have already found the “serious injury” relied upon by Dr. Kroft as being a fabrication or a wild exaggeration.

117There were further difficulties with Dr. Kroft’s analysis and the use of the DSM-IV to identify PTSD. When questioned about the second limb of the diagnostic criteria – that the person’s response involved intense fear, helplessness or horror – and the necessity of possessing those emotions at the time of the event, Dr. Kroft appeared confused. Initially, he agreed that the plaintiff had to experience those emotions at the time of the event but, in the same breath, commented that he was not sure that the plaintiff “had it immediately after; he had it shortly afterward.” The following exchange demonstrates Dr. Kroft’s confusion:

A. He goes I think, I think he went home. So he was all shook up. But whether it was intense fear, it was certainly pain and upset.

Q. But if it’s not intense fear, helplessness or horror right after the event you don’t diagnose PTSD, correct?

A. Well, you know, I’m not sure that it says—I mean, I don’t know that he didn’t have that but I don’t think it says there “immediately after the event”. It says, “A person’s response involved intense fear, helplessness or horror.”

118Shortly afterward, Dr. Kroft indicated that the criterion did not say “immediately after the event” but specified that the emotion had to be within a certain period of time. When pushed to give some type of clarity and specificity to the time period, he replied that he was not sure and that “I don’t know what this says”. Eventually, Dr. Kroft gave this answer:

It probably means very close to the time of the trauma. I didn’t mark down, so I don’t really remember. But on speaking with him and my recollection is that he was very upset, hopeless and having terrible pain shortly thereafter, if not right at the time.

119Of course, the evidence – even on the plaintiff’s account – discloses that after the accident occurred the plaintiff simply got on the bus, walked to the back and sat down, and went home. He did not go to the hospital because of the pain in his hand until the next day. There was no evidence or account of the plaintiff’s terror or feeling of helplessness. When this was put to Dr. Kroft, he appeared to change his evidence again and gave the following testimony:

[…] sometimes a person has a situation occur, they’re almost in a state of shock from the experience so they don’t really experience the, the intense fear, helplessness or horror until the shock of a sort is sort of resolved to some extent. So, but he may have been feeling that on the bus as well, I don’t remember.

120These examples demonstrate how Dr. Kroft’s testimony was contradictory, unsupported by medical principles and provided little help to the court. They also reveal that Dr. Kroft was unaware of the salient facts required to make a proper diagnosis of PTSD under the DSM-IV criteria.

121For the above reasons, I place little weight on Dr. Kroft’s evidence and reject his finding that the plaintiff was suffering from PTSD.

122On the other hand, Dr. Hoffman, the expert called by the TTC, seemed better prepared. He provided useful evidence with respect to his observations of the plaintiff, both in his behaviour and his physical use of hands.

123Dr. Hoffman’s interview with the plaintiff was unusual: the plaintiff asked Dr. Hoffman to direct his questions solely to the areas that he, the plaintiff, wished to discuss. Dr. Hoffman found the plaintiff to be “defensive” and avoid answers that, in Hoffman’s words, would “incriminate him in any way except as implicating that this accident was the sole cause of all of his problems”.

124Dr. Hoffman also noted that there was considerable evidence of exaggeration by the plaintiff of his physical incapability. Dr. Hoffman observed that the plaintiff seemed to move his wrist, elbow and shoulders without difficulty, while at the same time complaining that his injuries resulted in an incapacity to work, perform personal care and conduct household chores.

125Dr. Hoffman voiced concerns about the plaintiff’s answers where he appeared to describe numerous symptoms which had nothing to do with the TTC accident. The plaintiff reported symptoms that were irrelevant such as “dizziness, decreased vision, decreased taste, impaired speech, poor memory, and difficulty understanding written materials”. As a result, Dr. Hoffman doubted the plaintiff’s credibility on the cause of those symptoms because he appeared to be blaming everything on the accident and its sequelae.

126In Dr. Hoffman’s view, the plaintiff suffered from a somatoform disorder: a condition where a person has physical symptoms caused by emotional factors. Dr. Hoffman based his judgment on the plaintiff’s history and experiences from his youth. The somatoform disorder pre-existed the TTC accident and originated from the plaintiff’s childhood trauma, neglect and feelings of inadequacy. Dr. Hoffman testified that a somatoform disorder develops slowly and later in life although the causes are to be found in a patient’s earlier history based on family, social and environmental factors.

127Dr. Hoffman’s opinied that the plaintiff was experiencing difficulties prior to 30 August 2003, and the TTC accident became “the final straw” motivating the plaintiff to hope that he would no longer have to work but still receive compensation.

128Dr. Hoffman also noted that the plaintiff had been diagnosed with depression in 1994 and 1998. These findings led Dr. Hoffman to believe that the plaintiff was suffering from Major Depression. In cross-examination, Dr. Hoffman maintained that even though the plaintiff had worked for 10 months, the symptoms might “play out” at some point beyond that working period – for example, eleven months or a year. In other words, it would not be surprising if the difficulties had not become apparent whilst the plaintiff was working for the TTC. He also testified that Major Depression and somatoform disorder might not necessarily appear in the clinical notes of the plaintiff’s family doctor.

129Dealing with the psychiatric evidence in this case, I reiterate the importance of its foundation: the plaintiff’s self-reporting. For reasons made clear in several parts of this judgment, I find the plaintiff to be severely lacking in credibility. The information given both to Dr. Kroft and Dr. Hoffman by the plaintiff has been shown to be inaccurate and, in my view, motivated by the plaintiff’s desire to avoid work, claim benefits and obtain favourable reports in his litigation of this claim.

130There are two possibilities with respect to the plaintiff’s psychological diagnoses. The first is that the plaintiff, focused on his desire to claim financial reward without having to work, continued to exaggerate or fabricate any difficulties relating to his emotional and psychological state. I come to this conclusion having already found the plaintiff suffered no injury in the 2003 TTC Accident and knew that to be the case. On this basis, the information he provided to his psychiatrists renders their opinions flawed and deserving of little weight.

The Somatoform Disorder

131In the alternative, I find the plaintiff was suffering, as Dr. Hoffman concluded, from a somatoform disorder and Major Depression, both of which pre-existed the 2003 accident and were not caused by it. I say this for the following reasons.

132First, the plaintiff gave evidence that, prior to the TTC accident, he was both pain-free and without emotional or mental health issues. However, his medical records tell a different story. He had seen two psychiatrists, in 1994 and 1998. There was little detail provided about the first round of psychiatric care. The plaintiff, in customary fashion, appeared to have no recollection of either the 1994 or 1998 treatment. In his words “maybe they gave me some medication and it was for a very short time”.

133The documentary evidence, however, provides a more fulsome account with respect to the 1998 treatment and contradicts the plaintiff. Dr. Friesner recorded several complaints of depression and related symptoms during his time with the plaintiff in 1998. During that time, the plaintiff’s reported bouts of dizziness, sleep issues, stiffness and headaches. Dr. Friesner prescribed Elavil as an antidepressant to help with these complaints. Subsequently, the plaintiff was referred to a psychiatrist, and had an ongoing prescription for Elavil which continued into 1999. The plaintiff was also prescribed Ativan, a drug used to treat anxiety, in the same year. The OHIP records disclose that the plaintiff saw doctors other than Dr. Friesner in 2000 and 2001. General practitioners Dr. Melissa Nutik, Dr. Amani Neda, and Dr. Todd Levy, also attended the plaintiff in 2000 and 2001 but their records were not produced in court.

134It is clear from the evidence that, contrary to his assertions, the plaintiff’s mental health was far from “very good.” The plaintiff suffered a series of psychiatric complaints, including depression and anxiety, in the four years preceding his employment with the TTC. The evidence also belies the plaintiff’s testimony that he was treated for “a very short time” before recovery.

135Two doctors, aside from Mr. Hoffman, recorded opinions suggesting that the plaintiff displayed signs of somatoform disorder. In February 2001, the plaintiff saw Dr. Martin Rudnick who noted somatic complaints and he diagnosed the symptoms suffered by the plaintiff as being caused, in a significant manner, by the plaintiff’s depressive state. In April 2002, Dr. Noel Rosen treated the plaintiff using the listing code in OHIP records for “psychosomatic complaints”. Shortly afterwards, the plaintiff returned to Dr. Friesner’s care where he was again prescribed Elavil.

136I find that this evidence, coupled with Dr. Hoffman’s more recent analysis, points to a somatoform disorder. I also find that if the plaintiff’s mental health deteriorated after the accident, it did so because he suffered from a pre-existing somatoform disorder and not from any injury he sustained.

Remoteness

137Even if I were to find that the plaintiff’s psychological illness was caused or aggravated by the TTC Accident, it would fail to satisfy the causation requirement on the basis that the injuries were too remote.

138In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, the court discussed the concept of remoteness in the context of a plaintiff who suffered psychological difficulties as a result of negligence. The Chief Justice, writing for a unanimous court, set out the required standard of remoteness at paras. 14 and 15:

The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”

As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

139The objective standard advanced by the court in Mustapha underlined the importance of reasonable foresight. The plaintiff is under a duty to establish that his mental injury would be reasonably foreseeable in a person of ordinary fortitude. If he is able to do so, the TTC would have to take him as it found him in compensating him for damages.

140I find, however, that the plaintiff fails to satisfy this test. In my view, the plaintiff’s psychiatric injuries were not a reasonably foreseeable consequence of the bus doors closing on his hands. The plaintiff’s reaction to the incident was so unusual or extreme that it could not be said that the TTC could reasonably foresee it.

Damages

141If I am wrong on my findings of liability, I will assess damages in the amount of $5000.00 for the following reasons.

The TTC Accident

142The injury sustained by the plaintiff was, on the evidence, minimal: only a small scratch was observed by the Centenary Hospital; there was no fracture and no physical neuroma present. I have already concluded that the plaintiff’s claims with respect to the suffering of pain cannot be believed in light of the evidence adduced at trial. If the TTC were in fact negligent, the general damages to be awarded in this case would also be minimal and in the amount of $5000.

143I agree with the plaintiff that the TTC cannot avail itself of the $15,000 deductible contained in the Insurance Act, R.S.O. 1990, c. I.8, at the time of the accident: see Vollick v. Sheard (2005), 75 O.R. (3d) 621 (C.A.), where the court found that an employer was not a protected defendant with respect to a motor vehicle driven by an employee but was vicariously liable for the employee’s actions.

Loss of Income

144Ian Wollach testified on behalf of the plaintiff with respect to any loss of income occasioned by the TTC Accident. Wollach reviewed the plaintiff’s tax information, which covered 2003-2004, and understood the plaintiff to be a TTC employee. At the time of the accident, the plaintiff was earning $46,725.00 per annum, a sum that included the overtime remuneration. Wollach also factored into his assessment that collective agreements would increase the plaintiff’s salary in forthcoming years.

145Wollach calculated the plaintiff’s past and future income loss (after the deduction of future collateral benefits such as Long Term Disability Benefits) as totalling $760,842 based on the plaintiff retiring at 65 years of age.

146The difficulty with Wollach’s calculation is that he based it on the circumscribed scenario in which the plaintiff would have continued steadily working as a bus driver and could not otherwise work in the future. However, I reject Wollach’s analysis on future income loss.

147Wollach’s approach is highly speculative and fraught with difficulties. A review of the plaintiff’s medical, work and accident history, outlined above, scarcely suggests the plaintiff to be a person who would maintain consistent employment for a lengthy period of time. In my view, it could hardly be said that it is a real and substantial possibility that the plaintiff would work until age 65. If anything, the plaintiff’s work history and predisposition to accidents demonstrates the opposite.

148In cross-examination, Wollach conceded that there were a number of negative contingencies - factors affecting economic loss - in this case. Amongst them he included:

• Dismissal by an employer;
• The frequency in changing jobs;
• Pre-accident detrimental health;
• History of part time and full time employment.

149Wollach testified that, in calculating income loss, he had looked at only one T4 produced as a result of the plaintiff’s employment with the TTC in 2003. However, when faced with CPP records and documents showing earnings five years before the accident, Wollach agreed that the plaintiff’s earning capacity would amount to only $11,000 per annum. After deducting disability benefits, there would be no income loss.

150I find therefore that the plaintiff has not discharged his burden of demonstrating any future income loss.

Conclusion

151For the reasons set out above, the plaintiff’s action against Garry Armstrong and the TTC is dismissed.

III. THE CLAIM OF NEGLIGENCE AGAINST THE CITY OF TORONTO

Factual Background

152After the car accident, chair accident, streetcar accident, pizza accident, and shower accident, could matters get any worse for the plaintiff? Regrettably, they did.

153On 23 December 2007, at around 5.30 p.m., the plaintiff left his house on 15 Blueberry Drive in Toronto and began to walk eastbound on the north side of Huntingwood Drive. His intention was to catch a bus to the Scarborough Town Centre. Having lived at the Blueberry Drive address for approximately four years, the plaintiff was familiar with the route. He was also wearing accustomed shoes: the Step Comfort Safety Step, which he bought several times and would wear year round. The condition of the sole was “okay” and he had had not fallen wearing those shoes on any previous occasions. The plaintiff had not consumed alcohol that day but might have taken medication for cholesterol. He testified that he had no difficulties walking on Blueberry Drive before he arrived at the intersection with Huntingwood. Turning left on Huntingwood he proceeded in an easterly direction.

154One week previously, the City of Toronto had been engulfed in a severe snowstorm. Even though the City’s ploughs had worked hard to ensure the roads were clear, the plaintiff testified that the sidewalk on Huntingwood was “very bad” and covered with a layer of ice at least one inch thick. The surface of the ice appeared uneven and the plaintiff proceeded to walk carefully to the bus stop. Even though he was not wearing glasses, he had no trouble with his vision. One of the things that he noticed was that no salt had been spread along the path he was taking.

155As the plaintiff was walking along Huntingwood Drive, disaster struck: he stepped into a hole in the ice, lost his balance, and fell on his right shoulder, injuring his elbow and wrist. The plaintiff managed to get up, return home, and call 911 to request an ambulance which transported him to North York General Hospital.

156X-rays revealed that the plaintiff had fractured his right shoulder. No surgery was required to treat the injury although the plaintiff undertook physiotherapy which resulted in a 40-50% improvement. The pain did not go away entirely. The plaintiff told the court that the pain would increase when he lifted, pushed or held an item. He gave the example of mopping a floor. Additionally, weather changes and sleep position could also result in pain.

157The plaintiff testified that two major snowstorms had hit his area shortly before 23 December 2007. Although he could not remember the exact day, the plaintiff guessed the dates of the storms to be 16 and 17 December 2007.

158The plaintiff also told the court about two other accidents in which he had the misfortune to be involved. The first was when a car rear ended the taxi he had taken to get home. He sustained a back injury that continued to the time of trial. Once again, the pain from that injury gets worse when he lifts something heavy. The other was the TTC incident described previously.

Legal Principles

(a) Gross Negligence

159Both parties agree that the standard of care imposed upon the City emanates from the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, which mandates the City to keep highway, bridges and sidewalks in a reasonable state of repair. Section 42(5) provides:

Sidewalks

(5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.

160Gross negligence has not been specifically defined. In Holland v. City of Toronto, [1927] S.C.R. 242, the Supreme Court of Canada described it as “very great” negligence. In Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario acknowledged the absence of a legal definition and noted that the implementation of the gross negligence test required the application of common sense. The court had, in Sutherland v. North York (City) (1997), 35 O.R. (3d) 189 (C.A.), observed that the breach of duty when removing snow from sidewalks had to be “of such magnitude that it can properly be described as gross negligence”.

161A two-part test has emerged from the case law: see Billings v. Mississauga (City), 2010 ONSC 3101, aff’d 2011 ONCA 247; Audrey Cumberbatch v. The City of Toronto, 2015 ONSC 4859. An application of the test involves examination of two questions:

(1) Was the municipality’s general policy with respect to ice and snow removal a reasonable one?

(2) Was the municipality’s response on the occasion in question (that is to say, the implementation of its policy) reasonable?

162The clearing of snow and ice in a city the size of Toronto is a mammoth task. The City has a duty to ensure roads and sidewalks remain in reasonable condition after a snowfall. Those roads, however, are not required to be in perfect condition: Theiventhirampillai v. City of Toronto, 2012 ONSC 215. Nor can the City reasonably be expected to clear every inch of road or walkway used by the public: Richer v. Elliot Lake, 2011 ONSC 8017; Huycke v. Cobourg (Town), [1937] O.R. 682 (C.A.).

(b) Reverse Onus

163According to the plaintiff, once he demonstrates a prima facie case of a municipality’s want of repair which caused damage, the onus shifts to the City to demonstrate that the non-repair existed despite all reasonable efforts to ensure that it sought to cure the repair or prevent damage.

164The plaintiff relies upon Ian Rogers, The Law of Canadian Municipal Corporations, loose-leaf, 2d ed. (Toronto: Thomson Carswell, 2007), cited with approval in Michalak v. Oakville (Town), [2000] O.J. No. 4466 (S.C.J.), at para. 102, in the following way:

The law is now that whenever it is shown that a road was not in a reasonable state of repair and that damage was caused by want of repair, a prima facie case is established against the municipality…It is rather for the municipality to show that non-repair exists notwithstanding all reasonable efforts on its part to comply with the law. The onus of meeting the prima facie case is on the municipality…The onus may be overcome by evidence of an adequate system of inspection notwithstanding that it failed to reveal a hidden defect.

….this area is a heavy travelled pedestrian area. As such the area requires more thorough inspection than may be carried out in a less travelled area….The inspections carried out on a regular basis by a drive-by would not be an adequate method of inspecting such a highly travelled area.

A. LIABILITY

The City’s Framework in Dealing with Snow and Ice

165The City responded to this challenge by calling Mark Hillhouse, a field investigator employed by the City at the time of the incident, who patrolled the plaintiff’s neighbourhood. He testified to the City’s system of inspection and maintenance regarding snow and ice removal from public highways. According to Hillhouse, Huntingwood Drive was regularly patrolled by investigators at least two times every seven days. That schedule was mandated by the Minimum Maintenance Standards for Highways in the City of Toronto, O Reg. 612/06, a City of Toronto regulation.

166The Huntingwood/Blueberry Drive area was patrolled on December 4, 6, 11, 13, 18, 21, 27 and 31 to ensure the regulation’s purposes were met. Further action to clear snow and ice could be initiated on receipt of service calls made by the public, either directly or through local councillors. On 19 December 2007, Hillhouse investigated a service request concerning Blueberry Drive and requested further ploughing to clear the incumbent snow. Hillhouse later returned to the area to confirm that the ploughing had taken place.

167Hillhouse testified about Scarborough’s Winter Mobilization Procedures at the time of the accident: the City would monitor snow levels and order ploughing once eight centimetres of snow had fallen. Snow Advisory Sheets (SAS) would be issued when the City ordered equipment to be deployed. Those SAS would describe the action taken and the weather conditions in which the snow crews were operating. They would also include the weather forecast for subsequent days. The SAS were a record and history of the snow falls occurring in a particular area and the action taken in response. From 13 December to 21 December 2007, this program was utilised extensively to ensure snow was cleared from public areas. However, from 21 December to 24 December, no SAS were generated because the weather conditions did not require use of the equipment.

168Additional tools to ensure adequate snow and ice removal included:

• Winter maintenance patrollers who monitored the arterial roads to for weather conditions on a 24-hour basis. Once again, details such as temperature, road conditions and corrective action taken was recorded;
• Independent contractors, who would be used if a patroller had identified snow issues, were employed to provide sidewalk maintenance at the area of the accident;
• Decisions made to salt a particular area would the result of a committee meeting consisting of the Winter Maintenance District Superintendent, Manager of Road Operations, District Director and General Manager, and used information provided by staff charged with observing weather conditions;
• Specific salting equipment was used to salt the accident area on 14 December 2007 and to plough the area on 16-18 December 2007;
• A public call-in system, the Toronto Maintenance Management System, was employed to permit members of the public to report areas of concern to the City so that remedial measures could be implemented. A search of the TMMS records revealed no calls with respect to the accident area between 23 September 2007 and 24 December 2007.

Was there gross negligence in maintaining the sidewalk?

169There is no doubt that the City had in place mechanisms to both observe and deal with the presence of snow and ice on roads and sidewalks. The question in this case is whether the City’s actions in response to the conditions was reasonable.

170Hillhouse’s testimony demonstrates the City’s proactive response to the weather conditions before 23 December 2007. As stated, on 16 December 2007, a heavy snowfall hit Toronto and the City began its snow ploughing operations to clear the roadways. Those operations continued to 21 December 2007 when the weather conditions began to ease. Hillhouse testified that the Winter Maintenance Inspection Log recorded the major intersection of the accident area, Finch and McCowan, and its surrounding roads, to be “bare and dry” at 7 p.m. on 23 December 2007. The air temperature at the intersection was noted as being 1 degree Celsius with an accompanying road temperature of -1 degree. These temperatures would be mild enough to suggest that any snow and ice would have melted.

171The plaintiff, however, relies upon the melt/freeze cycle: temperatures rising above freezing during the day but falling below zero at night. This phenomenon, he argues, would lead the water produced as a result of melted snow to freeze into ice overnight. The result would be the conditions described by the plaintiff as leading to his slip and fall on Huntingwood Drive.

172I agree that this argument makes sense. However, it fails in this case: the weather records show that on 22 December 2007, temperatures during the day rose from 2 to 4 degrees Celsius, remained at 4 degrees overnight, rose to 8 degrees by noon on 23 December, and fell back to 1 degree by 6 p.m. The consequence is that, at no time between 3 a.m. on 22 December 2007 and 6 p.m. on 23 December 2007, did the temperature fall below zero. On the day of the plaintiff’s accident, there had been no overnight melt and freeze. The only time the temperature fell below freezing on 23 December 2007 was at 6 p.m., which is after the time of the plaintiff’s fall.

173I should add that the roads around the accident area were subject to rain and none of them were observed to be icy by City patrols. Although the plaintiff points to a lack of salting in the area on the day in question, I find that the weather conditions did not warrant salt on the roads. It was not unreasonable for the roads and sidewalk to remain unsalted when the overnight temperatures remained above freezing: see for example, Gertzbein v. Vaughan (City), [2004] O.J. No. 4265 (S.C.J.).

174It is also worth noting that the plaintiff did not consider the roads to be dangerous enough to wear winter boots and chose instead to wear the rubber-soled shoes that he wore throughout the year. He did so despite knowing that there had been a heavy snowstorm the previous week.

175I do not find on the evidence that the sidewalks used by the plaintiff were in a dangerous condition on 23 December 2007. I find that the plaintiff has failed to establish a prima facie case requiring explanation from the City. Even if he had been successful in doing so, I would find the City’s general policy to be a reasonable one and to satisfy the Billings test. Finally, I find the City’s response to the conditions in the period leading up to and including 23 December 2007 to be reasonable. I conclude therefore that the City was not grossly negligent.

B. DAMAGES

176If, however, I am wrong on the issue of liability, I would assess general damages in the amount of $22,500. As noted earlier, the plaintiff alleges that damages based on psychological injuries or loss of income are solely attributable to the TTC accident and claims only general damages in his action against the City.

The Injury

177X-rays taken on 23 December 2007 revealed a “non-displaced extra-articular fracture through the surgical neck of the right humerus”. This fracture to the right shoulder was the only injury sustained by the plaintiff and was treated by the use of a shoulder immobiliser. The Fracture Clinic Consultation report written by Dr. John Faulkner recorded no numbness and specified that “the contour of the shoulder is quite normal” with only minimal bruising. By 26 March 2008, x-rays showed the shoulder to be healing and, after physiotherapy treatment, no further problems were reported by the plaintiff. No surgery was ever required to treat the plaintiff’s injury, which fully healed without any further health implications.

Contributory Negligence

178As described previously, the plaintiff left his home on 23 December 2007 in full knowledge that a snowstorm had occurred a week earlier. He must therefore have been aware of the possibility of snow and ice on the walkways surrounding his home. That knowledge alone does not render the plaintiff contributory negligent: Waldick v. Malcolm, [1991] 2 S.C.R. 456 (S.C.C.). In this case, however, the plaintiff chose to wear the same rubber-soled shoes that he would wear throughout the year. Those shoes, described in court as identical to those worn by the plaintiff when giving evidence, were plainly unsuitable for winter conditions. The plaintiff also described seeing a thick uneven layer of ice on the road but nevertheless decided to continue walking over that area. In my view, by choosing to wear shoes unfit to cope with icy weather conditions, the plaintiff failed to exercise reasonable care for his safety.

The Range of Damages

179The amount of damages in injuries of the kind sustained by the plaintiff ranges from $30,000 to $50,000: see Mikolic v. Tanguay, 2013 ONSC 6632; Plumley v. North York Board of Education, [2000] O.J. No. 2636 (S.C.J.); Olivier v. 803295 Ontario, [2013] O.J. No. 160 (S.C.J.). In those cases, however, the plaintiff required surgery to correct the various shoulder injuries sustained. Only physical injuries are relevant – as noted, the plaintiff agrees that no further psychological issues resulted from the 2007 accident.

180In light of the foregoing, I conclude the appropriate damages would be $30,000, which are reduced by 25% to $22,500 to reflect the plaintiff’s contributory negligence.

Conclusion and Costs

181For the above reasons, the plaintiff’s action against all defendants is dismissed in its entirety.

182If the parties are unable to agree on costs, I would invite written submissions, no longer than 5 pages in length, to be provided within 30 days of receipt of this judgment.

S.A.Q. Akhtar J.