Public transit uptick shines light on 'No Crash, No Cash' rule

This article was produced in partnership with Bogoroch & Associates LLP.

As people move forward from the COVID-19 pandemic, with many returning to the office, use of public transit is seeing an uptick. This increased usage has shone a light on the little-known “No Crash, No Cash” rule.

“With public transit injuries, there’s a difference in how you’re treated depending on if the public transit vehicle hits another car or not,” says Linda Wolanski, lawyer at Bogoroch & Associates LLP. “It used to be that a rider who was injured on a Toronto Transit Commission (TTC) bus as a result of being jostled could file for accident benefits and get the mandatory coverage. But that was taken away.”

A 2011 amendment to the Ontario Insurance Act prevents injured victims from pursuing accident benefits if the public transit vehicle they are riding on does not collide with another automobile or any other object, as defined in s. 268(1.1). Wolanski says the firm often sees cases where the driver is cut off by another vehicle and unexpectedly slams on the brakes, for example, or makes a sharp turn and people go flying, or a person experiences a slip or trip and fall on the bus. The upside of access to an accident benefits claim is that an injured person can immediately file a claim and receive support such as income replacement, medical or rehabilitation expenses, and attendant care irrespective of fault. Losing that timely access to this pool of resources is punitive, especially for those who don’t have access to group health or disability benefits. But, the injured party still has other legal remedies.

Pursuing the tort route

The tort route is generally a long road to compensation and unlike accident benefits, where the injured person would automatically have access and entitlement, in tort litigation they must prove negligence on the part of the transit operator which depends on each case’s unique fact situation. There are legal advantages because there is caselaw that states drivers are held to a higher standard of care, and the team at Bogoroch & Associates rely on a few decisions in this regard. First, a Supreme Court of Canada ruling, Day v. Toronto Transportation Commission (1940 S.C.R. 433), that articulates the duty of a common carrier as very high:

“Although the carrier of passengers is not an insurer, yet if an accident occurscarrier of passengers is not an insurer, yet if an accident occurs and a passenger is injured, there is a and a passenger is injured, there is a heavy burden on the carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”

Second, is the case of Gardiner v. MacDonald (2016 ONCA 298) which reaffirms that a bus driver may be held to an elevated standard of care of a professional driver.

On the other side of the table, the TTC pushes back with caselaw of its own. In Robertson v. Toronto Transit Commission 1979 Carswell ONT 676, the court held that:

“Jerks, jolts, lurching, or movements of a streetcar, carrying passengers, are generally accepted as common incidents of travel, which a passenger, by experience, knows, and should expect.”

In Sawatsky v. Romanchuk 19(79) B.C.J. No. 964 (S.C.), the court noted that:

“…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.”

Another case often relied upon, Howard v. Toronto Transit Commission, holds that “in the complex modern society of Toronto where demands of efficient urban transportation are a constant source of problems, it is to be assumed that all members of the community who are going to use these services has some actual experience with their operation.” It goes on to say that while much time, expert research, investigation, and money goes into making operations as safe as possible, the TTC cannot guard against every eventuality. Otherwise, the decision notes, “a whole of such systems of transportation would probably fail in their purpose to transport thousands of passengers expeditiously.”

Ultimately, while the TTC accepts that they do have a duty of care, passengers are nonetheless expected to be familiar with how transit works. Wolanski states that, as always, individual facts and circumstances are critical. If the passenger is inattentive, doesn’t sit down, or fails to hold onto the pole or handles, and the bus driver comes to a stop that causes the person to fall, it’s not negligence. But if the bus driver is speeding or not paying attention and someone cuts them off, they slam on the brakes, and it’s a violent jolt or jerk, that’s a different story.

With surveillance on almost all public transit vehicles now, if a passenger is aware right away of an injury and they start the documentation process by reporting it to the driver immediately, there’s a good chance the event will be recorded, which is valuable in determining if a tort case should be pursued. Wolanski represented someone injured on a bus where “surveillance made our case,” she says, adding that it clearly showed her client flying several feet when the brakes were unexpectedly applied.

“It was effective evidence to confirm that the braking was very significant, and our position was that the driver wasn’t attentive, wasn’t on proper lookout for other vehicles, and applied the brakes too late,” she says. “We were successful in establishing negligence in that case in large part because we didn’t have to worry about witnesses’ observations. Everyone watched the video and came to their own conclusions. If you have surveillance which supports the client’s legal position, it’s hard to argue against it.”

An important trade-off

Unlike other car accident cases under Ontario law, in the specific circumstance where a plaintiff is injured on a public transit vehicle that has not been involved in a collision with another vehicle or object and is successful in their tort case, they do not have the added requirements of having to meet the statutory threshold or dealing with deductibles as prescribed by the Insurance Act in relation to motor vehicle accidents. The TTC lost its status as a protected defendant when the “No Crash, No Cash” amendment was made.

“That’s the trade-off for the injured victim, and it’s an important one because those can be very difficult hurdles for the plaintiffs to overcome,” Wolanski says. “We are very successful for clients in a number of these TTC cases — of course, depending on the facts of their case. But, for someone injured on public transit, there is an effective recourse and compensation scheme.”