What is the Standard of Care in Ontario?
Liability for a motor vehicle accident is based on whether or not the defendant breached the applicable “standard of care,” and thus caused the plaintiff’s injuries. In Ontario, the general rule governing standard of care is what would an “ordinary, reasonable, cautious and prudent person in the position and circumstances of the defendant” do when faced with similar circumstances. This general standard may vary based on the type of accident or parties involved.
Seyom v. Toronto Transit Commission: Bus Operator Sued Over Passenger’s 2012 Slip-and-Fall Injury
For instance, what is the standard of care applicable to a bus driver charged with maintaining the safety of his or her passengers? An Ontario Superior Court justice recently confronted this question in a case, Seyom v. Toronto Transit Commission, involving a woman who sustained serious injuries after slipping and falling on a TTC bus.
Here is some background. The plaintiff is a woman in her mid-50s. She emigrated to Canada from Sudan in the early 1990s and to this day speaks only limited English. This did not prevent her from maintaining a long-term job as a cook for a Greek restaurant in downtown Toronto.
On the day in question, the plaintiff was taking the bus to her job. At trial, the plaintiff testified it was a rainy Tuesday morning in May 2012. She awoke between 6:15 and 6:30 a.m. Her shift began at 8 a.m., and she was “the last one to catch the bus” at her stop. As it was raining, the plaintiff said she carried an umbrella.
After entering the bus, the plaintiff proceeded to the back of the vehicle. She was carrying her purse in her left hand and her keys and umbrella in the other hand. She started to move the items from her right hand to the left, as she was still standing and she needed to “hold onto something” before the bus driver pulled away. Unfortunately, she did not act quickly enough. The driver pulled away, and the plaintiff fell to the floor of the bus.
Following the accident, the plaintiff initially returned to her job for three weeks but later stopped working and applied for EI benefits, which she attributed to the pain and suffering caused by the accident. Thereafter, the plaintiff did not return to work for approximately three years. She currently works as a server–a less physically demanding position than her former cook’s job–at another restaurant.
Judge: Bus Driver did Not Violate Standard of Care
The plaintiff’s personal injury lawsuit was tried before Justice Shaun S. Nakatsuru of the Superior Court of Justice. Following a trial in early October 2018, Justice Nakatsuru issued his judgment on November 20, in which he dismissed the plaintiff’s claim against TTC. The judge was almost apologetic in his decision, in that he acknowledged the plaintiff’s “life changed so much” as a result of the accident. He nevertheless concluded that she failed to prove her case, particularly with respect to the issue of the standard of care.
The judge explained that this standard is different for bus drivers versus ordinary motorists. Following prior case law on this subject, the judge said the applicable standard here was “that of the reasonable bus driver in like circumstances.” On this point, the plaintiff cited the TTC bus operator’s manual, which states that a driver should not begin to move the bus away from a stop until all passengers with an “unsteady footing” are “seated” or holding a pole. According to the plaintiff’s testimony, she had not yet grabbed hold of a pole or gained her footing, which was particularly difficult on the morning of the accident due to rain, and thus, the driver breached the applicable standard of care by not waiting before pulling away.
Put another way, had the driver waited a few seconds to check and see the plaintiff had secured her footing, the accident would not have occurred.
TTC argued the section of the manual cited by the plaintiff only applied to “to the elderly, those who have assistive devices, or have trouble walking.” The plaintiff did not fall into any of these categories. To the contrary, the plaintiff was a commuter who had ridden the bus thousands of times over the preceding 20 years. TTC therefore submitted this was simply an accident and nobody was at-fault.
In addition to the witness testimony–which, keep in mind, took place about six years after the accident–Justice Nakatsuru also reviewed TTC’s video recordings from inside the bus on the day in question. The judge noted the recordings were “of very good quality” and showed various angles. Overall, the court found the video largely supported the bus driver’s account of events. For one thing, the recordings did not show any “observable pool of water” near the spot where the plaintiff fell. The bus floor was wet due to moisture tracked in by passengers, the judge acknowledged, but there was no clear hazard that posed an immediate risk to the plaintiff.
As for the fall itself, the judge said the videos showed the plaintiff’s “left foot slipped straight out from under her as she was in the process of reaching for a pole after moving items in her hand.” She was not “knocked off balance by any sudden movement of the bus or something occurring within the bus.” The driver moved the vehicle slowly at the time, and he stopped as soon as he heard the plaintiff fall.
Under all of these circumstances, Justice Nakatsuru concluded the driver did not breach the applicable standard of care–and therefore TTC was not liable for the plaintiff’s injuries.
Preszler Injury Lawyers can Help if You Have Been Injured in an Accident
This particular case largely turned on the video surveillance recordings kept by TTC. Of course, in many other slip-and-fall and motor vehicle accident such evidence is not available. In these cases, it is up to the victim to conduct a full investigation of all of the circumstances leading to their injuries. A qualified Toronto personal injury lawyer can help.