COURT FILE NO.: CV-18-00598182-0000

DATE: 2023-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lucia Bruni

Plaintiff

– and –

Toronto Transit Commission and Timothy Tan

Defendants

Mikalai Chapurny, for the Plaintiff

Andrew Davidson, for the Defendants

HEARD: April 26 and 27, 2023

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

1The plaintiff, Lucia Bruni, brings this action against the Toronto Transit Commission (“TTC”) and Timothy Tan for damages for personal injuries sustained when Mrs. Bruni fell while getting off a TTC bus. Mr. Tan was the driver of the TTC bus.

2The issue in this action is whether the TTC and Mr. Bruni failed to meet the required standard of care on the occasion of the accident. The parties have agreed to the amount of damages if the defendants are held liable.

3For the following reasons, the action is dismissed.

Analysis

4In Seyom v. Toronto Transit Commission, 2018 ONSC 6848, Nakatsuru J. explained at paras. 7-8, citing Meady v. Greyhound Canada Transportation Corporation, 2012 ONSC 657; aff’d 2015 ONCA 6, that the standard of care for a bus driver of a public transit vehicle is that of a reasonable bus driver in similar circumstances. To meet the standard, the bus driver must use all due, proper, and reasonable care and skill in the circumstances. This is an objective test that takes into account both the experience of the reasonable bus driver and anything the driver knew or should have known.

5In Meady, at paras. 170-171, the trial judge held that what is reasonable will depend on the facts of each case, and includes a consideration of the likelihood (or foreseeability) of the harm, the gravity of the harm, and the costs that would have to be incurred in order to prevent the harm. These factors are to be assessed as of the time of the alleged breach and not in light of subsequent developments.

6In an action for negligence where a bus driver is involved, the plaintiff has the onus to prove, on a balance of probabilities, all aspects of negligence. The standard of care imposed on a common carrier like the TTC is higher than that which is placed on the average person. If the plaintiff shows on a balance of probabilities that the defendant’s negligence caused his or her injuries, then he or she has established a prima facie case. This shifts the evidentiary burden to the defendant to adduce evidence to negate that conclusion. See Seyom, at paras. 9-10.

7In their respective affidavits filed at this trial, Mrs. Bruni and Mr. Tan describe the circumstances on July 1, 2017 when Mrs. Bruni was a passenger on the bus operated by Mr. Tan.

Mrs. Bruni’s evidence

8Mrs. Bruni, is a retired 76 year old woman who lives with her son, Sergio Bruni. On July 1, 2017, Mrs. Bruni fell when she was getting off a bus operated by the TTC. Mrs. Bruni was accompanied by Sergio while she was a passenger on the bus. Mrs. Bruni suffered personal injuries as a result of her fall.

9Mrs. Bruni states that at the time of the accident, she was using a walker due to knee problems. She started using the walker some years before the accident when she was outside. Mrs. Bruni had no difficulty using the walker before the accident. Mrs. Bruni would use a walker while on the TTC, and she was familiar with riding on the TTC. Before the accident, Mrs. Bruni had no difficulty getting onto or off TTC buses with her walker.

10On the day of the accident, Mrs. Bruni was coming from shopping. She had a basket in the walker that fits into her walker, and she had some groceries in the basket. On the day of the accident, Mrs. Bruni was wearing prescription eyeglasses and had no problem seeing.

11Mrs. Bruni agreed that her son got on the bus first. He did not assist her to get on the bus. Mrs. Bruni intended to get on the bus after her son but before she got on, the bus driver asked her to wait while he moved the bus closer to the curb. Mr. Tan then lowered the bus so that she could come from the sidewalk onto the bus. She then boarded the bus. She had no difficulty getting on the bus with her walker. After Mrs. Bruni and her son were seated, Mrs. Bruni got up and walked the short distance to the driver, without using her walker, to show him her transfer. She did not speak to Mr. Tan.

12Mrs. Bruni states in her affidavit that when she decided to get off the bus, she pushed the “stop request” button to indicate that she intended to exit the bus at the next stop. She waited for the bus to stop before she got up from her seat and she did not say anything to the bus driver before she got up. When the bus stopped, Mrs. Bruni started walking with her walker to the front doors of the bus. She thought the bus was close enough to the curb so she could go out safely.

13As Mrs. Bruni walked towards the front of the bus, she did not say anything to the bus driver. When she was walking towards the front doors of the bus, Mrs. Bruni did not ask the bus driver to lower the bus and she did not stop at any point to determine whether it was safe to exit the bus or not. Mrs. Bruni explained that she thought the bus driver “had it done the same way that he did when I got on the bus”. Mrs. Bruni explained that as she got to the edge of the bus, she thought the bus was close enough to the curb so she could go out safely. Mrs. Bruni believed it was safe to exit the bus and get onto the curb. As Mrs. Bruni was getting off the bus, the front wheels of the walker went into what she described as “a large gap” between the bus and the curb, she lost her balance and fell forward, head first, onto the pavement.

14When she was cross-examined, Mrs. Bruni agreed that she had used her walker many times to get on and off TTC buses before the accident. She testified that the bus was always lowered for her. Mrs. Bruni testified that bus drivers would either lower the bus or deploy the ramp to make it easier for her to get on and off the bus. She knew that if she asked, a ramp could be deployed for her. The bus would be lowered by the driver without her asking. Mrs. Bruni agreed that as a passenger she would always look to see if she could exit the bus safely.

15Mrs. Bruni agreed that when she was getting off the bus, she could see the distance between the bus and the curb but not exactly. She could see the sidewalk and she could see where she was about to step. She believed that she could safely exit the bus. Mrs. Bruni testified on cross-examination that the bus driver should have moved the bus closer to the curb when she got off, as he did when she boarded the bus. She agreed that neither she nor her son asked the driver to move the bus closer.

Mr. Tan’s evidence

16In his affidavit, Mr. Tan explained that the bus involved in this incident was a 40 foot Orion bus which is a standard bus within the TTC fleet. He was very familiar with operating this type of bus prior to the incident. Mr. Tan explained that these buses are known as “low floor” buses because they do not have stairs to enter and exit as previous buses did. They have one level to enter and exit.

17In his affidavit, Mr. Tan explains that he is trained on using the bus features to assist passengers with disabilities. One of these features is known as “kneeling” the bus. After the doors open, the operator can lower the bus, or “kneel-it”, to allow passengers easier access onto the single level passengers use to get onto the bus.

18The bus also has a feature where a ramp can be deployed if a passenger wants. Mr. Tan explained that this is used for passengers who use wheelchairs and motor assisted scooters. A ramp flips out from the floor and connects to the sidewalk. Mr. Tan’s evidence is that in his experience, most passengers with walkers, strollers and other assistive devices do not require the ramp, and get on the bus with the bus kneeling. His evidence is that whether an operator kneels the bus depends on the circumstances and, if a passenger asks to have the bus lowered, the operator will lower it. The operator also has discretion to lower the bus.

19Mr. Tan’s evidence is that he was very familiar with the mechanics involved in opening and closing the doors on the bus as well as the kneeling feature on this bus.

20Mr. Tan’s evidence is that on July 1, 2017 he operated the bus the same way that he does every day at TTC.

21Mr. Tan’s evidence is that at the stop where Mrs. Bruni and her son got on the bus, he drove bus into the stop a normal distance from the curb. His evidence is that Sergio Bruni got on before his mother without appearing to give his mother assistance to get on the bus. Mr. Tan noticed that Mrs. Bruni had a walker and he decided that despite stopping the bus a normal distance from the curb, he would make it easier for her to get on. He told her to wait and he would move the bus closer to the curb. At Mr. Tan’s request, Mrs. Bruni waited for him to move the bus closer then got onto the bus. Mr. Tan noticed that as Mrs. Bruni entered the bus, her walker had groceries loaded in the front of it. Mrs. Bruni sat on the blue seats behind Mr. Tan and she then got up without her walker after being seated and showed him her transfer. She then returned to her seat.

22Mr. Tan’s evidence is that when a stop request is made, he sees a light on the consol but does not know who made the stop request. Mr. Tan made four stops in response to four stop requests before Mrs. Bruni’s stop request, and, each time, be brought the bus to a normal stop a normal distance from the curb. Mr. Tan did so again the fifth time, when Mrs. Bruni made a stop request. Mr. Tan’s evidence is that a normal distance is 4 to 6 inches. Mr. Tan’s evidence is that he also “kneeled” the bus at the stop.

23Mr. Tan’s evidence is that in bringing the bus to a normal stop a normal distance from the curb, his focus is on the front of the bus and the stop. Then his focus is on opening the door and then lowering the bus. Once these steps are done, he then focuses on the passengers. Mr. Tan’s evidence is that it was only when Mrs. Bruni got up from her seat and approached the front doors that he realized it was her who was exiting at that stop.

Video recording from inside the bus on the day of the incident

24A video recording from the TTC closed circuit video system taken on the day of the accident from a camera inside the bus showing the area of the front door was introduced into evidence. The parties agree that the video recording accurately shows what happened when Mrs. Bruni and her son entered the bus, while they were on the bus, when Mrs. Bruni exited the bus (and fell while doing so) and after the accident, from the vantage of this camera inside the bus.

25Mrs. Bruni submits that Mr. Tan failed to use all due, proper, and reasonable care and skill in the circumstances and that he thereby failed to meet the high standard of care required of a TTC bus driver. Mrs. Bruni submits that in order to satisfy the required standard of care, Mr. Tan was required to (i) deploy the ramp to connect the floor of the bus to the sidewalk and eliminate the gap between the bus and the curb, or (ii) move the bus closer to the sidewalk (as he did when she boarded) to reduce the distance between the bus and the sidewalk. Mrs. Bruni submits that, in any event, Mr. Tan was required to orally caution Mrs. Bruni that she should be careful as she left the bus and moved across the gap with her walker.

Did Mr. Tan fail to meet the required standard of care by failing to deploy the ramp?

26Mr. Tan testified that the ramp is usually only deployed upon request, for example, in cases where someone is in a wheelchair or using a motorized scooter. Mr. Tan testified that he would deploy the ramp for a person using a walker if there was a request or if it was obvious the passenger could not board or get off the bus without the ramp being deployed. Mr. Tan explains in his affidavit that he cannot know the functional abilities of all passengers use the TTC bus service.

27There was nothing that would have been apparent to Mr. Tan to alert him that Mrs. Bruni needed to use the ramp to get off the bus. The simple fact that Mrs. Bruni was using a walker to assist with mobility would not, without more, convey to Mr. Tan that Mrs. Bruni needed to use a ramp to safely exit the bus. Mrs. Bruni’s evidence is that before this accident, she safely travelled on the TTC with her walker and boarded and exited TTC buses without a ramp being deployed.

28Mrs. Bruni has failed to show a prima facie case that Mr. Tan failed to meet the required standard of care by failing to deploy the ramp.

Did Mr. Tan fail to meet the required standard of care by failing to move the bus closer to the curb?

29Mrs. Bruni submits that where a passenger is, like Mrs. Bruni, elderly and using a walker or similar device to assist him or her with walking, a bus operator is required to take special measures to address the risk of injury presented by the gap between the bus and the curb, such as deploying a ramp or moving the bus closer to the curb than the usual distance.

30Mrs. Bruni relies on Isaacs v. Coast Mountain Bus Company Ltd., 2014 BCSC 2212 as a decision where the bus company was held liable for negligence. In Isaacs, the plaintiff sustained injuries when she fell after exiting the front door of a transit bus. The plaintiff testified that when the bus stopped, the bottom step of the bus was 12-14 inches from the curb. She jumped because she thought the step to the road was very high, so she grabbed the railing and jumped. The evidence was that the defendants’ policy was that the bus should be stopped less than ten inches from the curb. The trial judge held that, although the policy was not determinative, this policy reflected the standard of care required by a reasonably prudent bus driver and, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence. The trial judge accepted the plaintiff’s evidence and found that the bus was parked further from the curb than ten inches, contrary to the defendants’ internal policy. The trial judge held that this was a breach of the defendants’ standard of care.

31I agree that the TTC’s policy and Mr. Tan’s usual practice is not determinative of the standard of care. I also agree that if the evidence shows that Mr. Tan stopped the bus more than 4 to 6 inches from the curb, contrary to his usual practice, this would support a conclusion that Mr. Tan failed to meet the required standard of care.

32Mr. Tan’s evidence is that at the stop where Mrs. Bruni and her son were getting off, the bus was stopped a normal distance from the curb and that he kneeled the bus at the stop, as he routinely does without anyone asking when passengers are getting on and off the bus. He testified that he always lowers the bus to the maximum lowered position.

33The video shows a gap between the bus and the curb as Mrs. Bruni is about to get off, but it is impossible to determine from the video whether the gap between the bus and the curb is more than the normal distance of 4 to 6 inches as described by Mr. Tan.

34Mrs. Bruni’s evidence is that when she was getting off the bus, she was wearing her glasses and had no problem seeing. Mrs. Bruni’s evidence is that she did not hesitate while exiting the bus and neither Mrs. Bruni nor her son expressed a concern about how Mr. Tan had stopped the bus or the distance from the curb. She agreed that she could see the sidewalk from where she was standing when she was about to get off and she could see where she was about to step. Mrs. Bruni agreed that she formed the opinion from what she could see that she could safely exit the bus and get on to the curb.

35When I consider all of the evidence, I find that Mrs. Bruni has not shown that Mr. Tan failed to bring the bus to a stop at a normal distance from the curb at the stop where Mrs. Bruni and her son were about to get off, as he testified he did.

36Mrs. Bruni relies on the evidence of the action taken by Mr. Tan when she and her son boarded the bus by asking her to wait while he moved the bus closer to the curb to make it easier for Mrs. Bruni to board the bus. Mrs. Bruni submits that this evidence shows that Mr. Tan knew that Mrs. Bruni (an elderly passenger boarding the bus who was using a walker) would be assisted by his simple action of moving the bus closer to the curb than it would otherwise be (thereby making the gap between the bus and the curb narrower). Mrs. Bruni submits that a reasonable bus driver in Mr. Tan’s circumstances would reasonably know that he should take some additional action to make it safer for Mrs. Bruni to get off from the bus.

37The video shows Mrs. Bruni moving past Mr. Tan with both hands on her walker and turning to exit the bus. Sergio Bruni is behind her pulling a grocery buggy with his left hand. There are groceries in the front basket of Mrs. Bruni’s walker and another bag hanging from the right front handle of the walker. The video shows Mrs. Bruni turning to the right to exit through the bus doors, leaning forward, and placing the front wheels of the walker onto the curb while the rear wheels are still on the bus. After Mrs. Bruni does so, the front wheels then roll back and fall down into the gap while the rear wheel are still on the bus. When this happens, Mrs. Bruni falls forward, apparently landing on the sidewalk on her face. The landing is not captured by the video.

38I am not satisfied that the evidence that Mr. Tan moved the bus closer to the curb when Mrs. Bruni boarded the bus is a circumstance that would reasonably have alerted Mr. Tan he was required to take special actions, other than following his usual practice, when he stopped the bus the usual distance from the curb, kneeled the bus, and opened the door to allow Mrs. Bruni to get off. The evidence is that Mrs. Bruni had travelled on TTC buses with her walker on many prior occasions without requesting special actions for her to enter or leave the bus. On the occasion of the accident, she could see clearly. She believed she could get off safely. She did not ask for assistance to leave the bus. On this occasion, Mrs. Bruni placed the wheels of her walker on the curb and when she placed her weight forward, the wheels moved back into the gap, causing her to fall forward. On the evidence before me, this was an accident that was not caused by Mr. Tan’s failure to use reasonable care and skill.

39Mrs. Bruni has not shown a prima facie case that that on this occasion, Mr. Tan failed to use all due, proper and reasonable care and skill in the circumstances.

Disposition

40For these reasons, the action is dismissed.

41If the parties are unable to resolve costs, they may make written submissions. The TTC may make submissions (not longer than 3 pages without costs outline) within 10 days. Mrs. Bruni may make responding submissions within 10 days thereafter. The TTC may make brief reply submissions, if so advised, within 5 days thereafter.