McMaster University*: a decade-long history of systematic negligence, compromised freedom of information and perverted judicial system


McMaster's indoor track crash lawsuit: two sides of the story

Read to think: do you still feel SAFE?


Vladislav Bukshtynov v. McMaster University

pure facts on how the power of world-renowned university is used to hide the truth

Updated: September 20, 2019.
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The Incident


An official version of the incident according to the findings of Justice Alan Whitten [1] and comments of McMaster University's lawyer Robert Sutherland was published in Toronto Sun [29] on Sep. 6, 2018. A PhD student, Vladislav Bukshtynov, came to McMaster's 4-lane indoor track at the David Braley Athletic Centre in the morning of Dec. 10, 2011. He was asked to leave inner lane 2 as it was occupied by sprinters of running club Flying Angels supervised by its coach George Kerr. The PhD student refused and shortly he was struck from behind by the club runner Hwang Lee who crashed into his back "effectively sending him flying" as Justice Whitten wrote in his decision [1]. The PhD student, now math professor at Florida Tech in the US, suffered a serious shoulder injury and filed a lawsuit against the university and the running club. The position of McMaster is that the university is not liable in any sense. Mr. Bukshtynov was asked to move and to allow the club to perform sprinting in lane 2 per their request, so it is Mr. Bukshtynov's fault at 100%.

The Trial**: Controversy of Outcomes


The trial for this indoor track crash lawsuit took place before Justice Whitten from May 7 to May 25, 2018 at the Superior Court of Justice in Hamilton ON, Canada. Based solely on facts provided by Justice Whitten in his decision [1] and summarized in The Sun article [29], Prof. Bukshtynov should have been found 100% liable. However, the jury found the running club coach 60% liable and the former PhD student 40% contributorily negligent. Surprisingly, the university's liability was set to zero despite the array of known facts which support the opposite.

The summary of these facts sets a reasonable question:

How did McMaster, the track owner, appear to be ZERO-liable?

The victim of this incident, Mr. Vladislav Bukshtynov, clearly states his position as follows. The trial process and its outcomes are carefully framed in a form of public spanking to punish his "irresponsible litigation behaviour" as stated by Justice Whitten [1], [29]. Multiple indications are available to identify that his rights for fair and unbiased judgement are violated under the power and authority of the university supported, voluntarily or forcedly, by local authorities and judicial system of Hamilton.

Judicial System by Justice Whitten


From the standpoint of objectivity, the trial judge Justice Alan Whitten has clearly demonstrated his prejudice during the entire trial process. Being away from initiating a discussion on any reasons for that, the facts below speak for themselves.

McMaster: a Decade of Systematic Negligence


As stated previously, the trial revealed that since the Athletic Centre was opened in 2007 no attempts were made to train the personnel for safety. In addition to this, two key people related to the track maintenance and operations at McMaster were summoned to the court. Facility Supervisor, T.J. Kelly, and Manager of Athletics and Events, Mark Alfano, gave the evidence that at the time of the incident the policies for safe running were not established at all.

After the trial conclusion Mr. Bukshtynov initiated his own investigation in order to create a full picture for safety conditions of doing any sport activities on campus. He sent multiple Freedom of Information (FOI) requests under Freedom of Information and Protection of Privacy Act (FIPPA) [14] to McMaster University, the Ontario Ministry of Labour, the Ontario Ministry of Health and Long-Term Care, the Superior Court of Justice in Hamilton, the City of Hamilton, Hamilton Health Sciences and St. Joseph's Healthcare Hamilton. Needless to say, the majority of these requests were processed with understandable tension: several were returned with rejection, while some requests were simply ignored. Luckily, the FIPPA law is working, somehow, in Ontario and at the moment almost all these requests are finalized. The outcomes gave a disheartening response.

This is the place where a LIE starts getting uncovered.

Justice Whitten in his decision [1] mentioned that "because of the allegations made by the plaintiff with respect to the operation, signage, etcetera of the indoor track, it would be understandable that an engineer was hired. That expert did not testify is no doubt because of how the trial evidence emerged" (par. 57). In fact, an inspection, unreported to the Ministry and for two FOI requests, was ordered by the university in June 2014 at Giffin Koerth Smart Forensics. In particular, forensic engineers were asked to "complete a site attendance, inspect the indoor running track". Their independent track inspection in October of 2014 revealed [24] that the track has constructional defects related to safety issues which do not comply with the requirements and recommendations published by the International Association of Athletics Federation (IAAF) [16], [17].

Further - it is more. There is a reasonable question about the Justice Whitten's ban put on the materials and questions for the previous accidents happened at the same track.

HOW FAR is McMaster ready to go to make people believe it is safe?

One more example is below.

While this lie gets out of hand, the university will continue to enforce signing liability waivers to oblige all MAC Athletic & Recreation members "to waive any and all claims . . . and to release the releasees from any and all liability for any loss, damage, expense or injury including death . . . due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care . . . " [19].

Track of Hidden Incidents


In July 2019 the Superior Court of Justice in Hamilton released an entire archived file containing documents related to case #12-38016, Rodney v. McMaster University. Some of these documents allow to shed more light on the mentioned above unreported incident happened in November 2010. In addition to the Transcript of Discovery for McMaster's Facility Supervisor [25], now the access is established also to the Transcripts of the incident victim Ruth Rodney [26] and a running club coach Tom Bereza [27].

Mr. Bereza was asked to provide his opinion on safety rules and polices established at the McMaster's indoor track. He stated [27] that he was not "aware of any rules or policies governing the use of the facilities" (p. 7) and that "no one from the University gave us any orientation" on "how to use the David Braley Athletic Centre" (p. 8). He also mentioned that "the problem that the clubs had were more with the general students of McMaster . . . We'd often get groups running together, taking up all the lanes like as a pack, running as a pack, or they would jog in the outside lane." (p.9).

There are also opinions of two more club coaches, Brian Grola and Luis Dauphin, provided by the Ruth Rodney's lawyer, Mr. Pheroze Jeejeebhoy in [26]: "I have the opinions from the coaches who feel that McMaster's enforcement of the rules and posting of the rules were substandard in that I've been advised that when you look at York University or U of T, they have clearly posted rules and clearly enforced rules which they feel McMaster doesn't have" (pp. 34-35). And also "the general opinion was that there was no structure to the track, so you would have untrained people and trained people running together, people in various lanes and them not enforcing the use of lanes, which created a hazard and I understand that prior to this incident, there was at least one other incident" (p. 35).

In addition to this, in [26] Mr. Jeejeebhoy also provided the statement of the Ruth Rodney's coach, George Kerr: "During his training students at McMaster from 1999 to 2005 he [George Kerr] had requested, complained and discussed the lack of rules and signage thereof. He made specific complaints to Mark Alfano, manager of facilities" (pp. 31-32). Also "the rules of the track have not been taken seriously or implemented by McMaster in his [Kerr's] opinion. He [Kerr] is aware of several incidents of track collisions" (p. 32).

Could we take these multiple statements seriously? Why not: they are fully consistent, substantially supported and explanatory in terms of 65 EMS attendances at the David Braley Athletic Centre. Rhetorical questions are: "Should McMaster allow any release of such information?" and "Could Justice Whitten allow any questions related to this incident and any references to the available documents during the trial in 2018?"

The search for the rest hidden incidents is underway and the open call is announced for submitting any facts on that issue.

Investigation by Ministry of Labour


Besides finding and sharing the information on the university's negligence, what else could be done in order to prevent future accidents that may cause more injuries and even fatalities? On Sep. 12, 2019, the Ministry of Labour received a request to initiate an investigation related to the safety conditions on campus of McMaster University. In particular, this investigation should address all cases of injures happened at the recreational facilities and not reported to the Ministry as well as all safety inspections made in the past and required for future. It is obvious that failure or delay in ordering such investigation will allow the university administration to extend its negligent behaviour to abuse public safety with unpredicted future outcomes. We will see if the Ministry will be willing to make any steps in doing what is assumed to be their own job. Any response as well as the investigation findings will be added here with future updates.

Freedom of Information Compromised


As mentioned above, the majority of the FOI requests were initially returned with rejection or simply ignored. Again, being away from initiating a new discussion on any reasons for that, the facts provided below show the scale at which the problem appears at the moment.

The total statistics accumulated up to the moment speaks for itself. 10 FOI requests were followed by 9 IPC appeals for deemed refusals or data access denials - the price freedom of information pays on behalf of McMaster University.

Are Personal Injury Lawyers and Insurance Involved?


The Morris Law Group, a law firm in Hamilton specialized in personal injury cases, was hired in 2012 to represent Mr. Bukshtynov in suing both the university and the running club. Ms. Sumitra Lagoo, a lawyer assigned to this case, was sure that the case was strong. In 2017-2018, closer to the trial commencement, her rhetoric changed: for not failing at trial her client had to let McMaster go. This was predictable and almost inevitable: McMaster University is the major employer in Hamilton and a world-renowned institution. What was not predictable is the reaction of the company to the trial outcome: after the trial conclusion, Ms. Lagoo's online profile was moved out from the company's web site. The Morris Law Group commented that she "is doing well ... spending time with her family".

The trial strategy of Agro Zaffiro LLP, lawyers for the running club insurance company The Sovereign, was also questionable. As a common practice for multi-parties defence, they submitted a cross-claim against McMaster University in case any judgement was against their clients. Despite 60% liability set for the running club and the coach, "the defendants did not attack each other" as summarized Justice Whitten in his decision [1] (par. 36). Provided the lawyers are on instructions, does it mean that the insurance company sacrificed reputations of their clients, the club and the coach? Why? What forced the insurance to sacrifice its own reputation?

US/Canada Subrogated Claims Precedented


The major part of the rehabilitation treatment was provided to Mr. Bukshtynov in the US. As a regular procedure both in Canada and in the US, this situation resulted in issuing subrogated claims. The major part of these claims is handled by The Rawlings Company (US) which is authorized to represent Blue Shield of California and Florida Blue in terms of subrogation recovery. An official representative of The Rawlings supported the claims by giving evidence on behalf of the company. The amounts for these claims were also included into the Rule 49 Offer to Settle by the defendant parties as seen in [1] (par. 14). However, discussing this issue before the trial jury was objected along with the suggestion to include the subrogating amounts into The Questions to the Jury, [1] (par. 4). As stated above, Justice Whitten used his own power to support all these objections. This step, in fact, will trigger serious negative consequences to affect people both in the US and Canada. As an example, many Canadians, who live and have medical treatment in the US, will no longer be able to claim subrogation compensation from Canadian insurance companies. A single attempt to pressurize one person during the trial will be paid out by many ordinary people and, as a natural consequence, will not support close relations between the US and Canada in the end.

The Appeal***


Mr. Bukshtynov has appealed the trial decision. It is the position of the appellant that McMaster University is liable at least 50% for doing almost nothing to maintain safe conditions for all runners and to prevent any possible accidents. It is also his position that Justice Whitten made a number of errors of fact and law that brought about a substantial wrong or miscarriage of justice. During the trial, he incorrectly ruled that certain important documentary evidence was inadmissible. In addition, by making multiple errors, his charge to the jury signifficantly misdirected the jury, leading to an absurd verdict.

The appeal expectations go far beyond the personal interest of the track incident victim. The question is posed and it should be answered:

Is the university ABOVE THE LAW?

Does the end justify the means? The strategy set by decision makers at McMaster is perilous and their main motives are simple and obvious. Enormous efforts are invested not into solving real problems, but instead into hiding these problems carefully. The delayed effects of such strategy will be heavily amplified with the vast negative impact on the university's reputation in the future.

The appeal has been scheduled for hearing on Wednesday September 25, 2019. It is true to say that the appeal Judges will be given a very tough problem. There is a dilemma. To grant judgement in Mr. Bukshtynov's favour means to start making adjustments to a case law system and to give regular people hope to succeed with their future claims, not just to accept alms being threatened by high litigation costs and perverse verdicts returned by unprofessional in law jurors manipulated by wise judges and highly experienced lawyers. On the other hand, it is much simpler to support McMaster. But saying the university is 0% liable means to support obvious lie and to allow this lie to root deeply by further strengthening the position of big enterprizes to follow the same practices. It is in the air that at least some changes are needed to make a step forward: are we dare enough for this step?

Media Silent


In a private conversation, one of the Canada's correspondents of a major US newspaper concluded that this case does not have any unusual aspects that would interest global audience, people not affiliated with the university or even Canadian readers. Nor does it appear to have the potential to reshape the Canadian civil litigation system. How about fair and affordable justice for all? We appreciate everything large companies are doing for us, regular people. But when it comes to court a large enterprize will survive with any outcome, which is not the same for individuals. Threatened by enormously high litigation costs an ordinary person has nothing to do but to agree on a "generous offer" in many cases without any chances to negotiate or prove their rights for reasonable compensation. They give up and allow companies supported by local authorities and judicial system to proceed in exactly the same manner.

Obviously, the only thing that guarantees the fair and unbiased appeal process is transparency. The local media information sources received multiple requests to publicize the details of this story. But they, however, prefer to keep silence at least until the status quo is changed. Should we blame them for this, or the facts presented here are simply reflection of the modern Canadian life? And, if so,

should we give up and let McMaster go?

* * *


*Here and throughout the entire text, except the cases when it is used to specify a physical location, McMaster University (also McMaster or MAC) means the McMaster University Administration.
**The Superior Court of Justice in Hamilton ON, Canada, court file No. 13-44580.
***The Court of Appeal for Ontario in Toronto ON, Canada, court file No. C65552.

References:


[1] Bukshtynov v. McMaster University, 2018 ONSC 4819 (CanLII).
[2] Data re IPC Appeal PA19-00049 (related to FIPPA A-2018-00241/MS): Ministry of Health and Long-Term Care, APCI Office, provided May 6, 2019.
[3] Email from J. Lichty to V. Bukshtynov, dated Nov. 28, 2009.
[4] Email from J. Murray to T.J. Kelly, Re: Track Incident, dated Dec. 10, 2011.
[5] Email from V. Bukshtynov to M. Alfano, Problem: Official Response Required, dated Mar. 27, 2010.
[6] FOI Decision Letter: Hamilton Health Sciences, Privacy & FOI Office, dated Dec. 5, 2018.
[7] FOI Decision Letter: Hamilton Health Sciences, Privacy & FOI Office, dated Sep. 5, 2018.
[8] FOI Decision Letter: McMaster University, FOI & Protection of Privacy Office, file #2018-GR-010, dated Oct. 24, 2018.
[9] FOI Decision Letter: McMaster University, FOI & Protection of Privacy Office, file #2018-GR-011, dated Dec. 5, 2018.
[10] FOI Decision Letter: Ministry of Labour, FIPPA Office, file #G-2018-00606/LP, dated Sep. 10, 2018.
[11] FOI Decision Letter: St. Joseph's Healthcare Hamilton, Privacy Office, dated Sep. 19, 2018.
[12] FOI Final Access Decision Letter: City of Hamilton, Office of the City Clerk - FOI Section, file #19-034, dated Apr. 24, 2019.
[13] FOI Responsive Records: City of Hamilton, Office of the City Clerk - FOI Section, file #18-158, dated May 8, 2019.
[14] Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
[15] How do Costs Work in a Personal Injury Lawsuit Involving Multiple Defendants?, Preszler Injury Lawyers.
[16] IAFF Track and Field Facilities Manual, 2003 Edition, International Association of Athletics Federation.
[17] IAFF Track and Field Facilities Manual, 2008 Edition, International Association of Athletics Federation.
[18] Letter from Dane DeMan, McMaster University, to Eric Arsenault, Ontario Ministry of Labour, dated Dec. 15, 2011.
[19] McMaster University "Athletic & Recreation" Waiver of Claims Form.
[20] Ministry of the Attorney General: General Information about Jury Duty.
[21] Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
[22] Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.
[23] "Reckless and Pernicious" Refusal to Consider Settlement Results in Pyrrhic Victory, Borden Ladner Gervais LLP.
[24] Report of Findings, Giffin Koerth Smart Forensics, file #140942MTS, dated Jun. 19, 2015.
[25] Transcript of Discovery for Facility Supervisor, T.J. Kelly, case #12-38016, Rodney v. McMaster University (date of loss Nov. 2010).
[26] Transcript of Discovery for Ruth Rodney, case #12-38016, Rodney v. McMaster University (date of loss Nov. 2010).
[27] Transcript of Discovery for Tom Bereza, case #12-38016, Rodney v. McMaster University (date of loss Nov. 2010).
[28] K. Kirkpatrick and J. Ablaza, Pyrrhic Victory for Plaintiffs Who Refused Settlement, The Lawyer's Daily, (Oct. 5, 2018).
[29] S. Pazzano, Math prof took a risk with jogging track crash lawsuit and failed, Toronto SUN: Sam Pazzano Courts Bureau, (Sep. 6, 2018).

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