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?
Indoor Track Crash Lawsuit - Bukshtynov v. McMaster University*
pure facts on how the power of world-renowed university is used to hide the truth
Updated: May 10, 2019.
PDF version available here
An official version of the incident according to the findings of Justice Alan Whitten  and comments
of McMaster University's lawyer Robert Sutherland was published in Toronto Sun  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
. 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  and
summarized in The Sun article , 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 indoor track was never properly supervised and, as appeared later, was never inspected for safety reasons since the Athletic
Centre was opened in 2007.
- The Athletic Centre personnel in general, and the track monitors in particular, were never trained for safety. Despite the existing
track of previous incidents, the policies for safe running were not established at all.
- Well before the incident, from 2009 until the time the incident occurred, Mr. Bukshtynov informed on multiple occasions the Athletic
Centre managers that the use of the indoor track was not properly controlled. Copies of saved emails ,
 were provided to the jury.
- The running club coach George Kerr on the day of incident did not have any affiliation with McMaster and was on track with no prior
university's permission. This fact is confirmed by the internal incident report provided by McMaster itself .
Therefore, this coach neither had any rights to reserve or block any lanes for his teens, nor could instruct any recreation members
to follow his requests. Justice Whitten disallowed to admit the report  to the court, thus this evidence was
hidden from the trial jury.
- At the time of the incident the track monitor was on duty and confirmed that lane 2 had not been booked and, as such, could be freely
used by anyone.
- According to the track rules, inner lane 2 could not be assigned for sprinting at all.
- The hidden incident report  also revealed that all McMaster responsible parties (the Athletic Centre main desk,
facility supervisor, track monitor) were aware of the problem before the incident happened.
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 ,
. 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.
- The language used by Justice Whitten is far from neutral, see, e.g., : "effectively sending him flying" (par. 8),
"stubborn refusal" (par. 16), "plaintiff V.B. [Vladislav Bukshtynov] was stubborn" (par. 21).
- In Ontario the jury panelists receive no payment for the first 2 weeks, and only then are paid $40/day .
However, Justice Whitten ruled to pay $100/day to every jury member starting from the first day of trial.
- Justice Whitten also insisted, two times, on additional "midtrial pre-trial" conferences. Although such meetings are not considered mandatory,
rejection to follow this advice was called as "irresponsible litigation behaviour" . Just to mention, a mandatory
pre-trial meeting in March 2018 was governed by Justice Jane Milanetti, a former partner of Agro Zaffiro LLP, a law firm which is
a counsel for the running club. There is no doubt that both additional negotiating opportunities might have been "helpful".
- The information selected for absorbing by the jury was carefully filtered. During the entire trial, sometimes several times per day at court,
Justice Whitten asked the jury to step down. Several important issues, such as signing a liability waiver or paying subrogated claims (will be
described below), were ordered to discuss without presence of the jury. Even in theory, as the information passed to the jury was so
vigilantly filtered, could McMaster be found at any degree liable?
- To add more, Justice Whitten also ruled that certain important documentary evidence was inadmissible during the trial, e.g., McMaster's
internal incident report , McMaster's accident report for the Occupational Health and Safety Branch of Ontario Ministry
of Labour , materials on the previous accident happened a year before, in 2010, at the same track
- "Inadmissibility" of , which is the Transcript of Discovery for McMaster's Facility Supervisor T.J. Kelly
(case #12-38016, Rodney v. McMaster University), becomes clear after reading just a few pages: 44-45, 53 and 57.
The responsible officer, namely the McMaster's Facility Supervisor, under oath stated that:
- starting from November 2010, sprinting is prohibited in any lane rather than lane 4,
- blocking any lanes by individuals/clubs for their own use is also prohibited, and
- the track monitors are in charge to "police" unauthorized sprinting and blocking.
- In addition, Justice Whitten vetoed several regular questions to be included into the jury's questionnaire: amounts for loss of competitive
advantage, future medical and rehabilitative expenses, future loss of housekeeping and handyman services.
- In his decision  Justice Whitten refers - eight! times - to Mr. Bukshtynov's failure to pay the premium to After-the-Event
(ATE) costs insurance. In particular, this failure was one of the reasons to turn down the claim for a Sanderson/Bullock order (unsuccessful
defendants pay the costs to successful defendants). This rejection was a subject of multiple discussions in the professional law media, see,
e.g. , , . As a matter of fact, this is not true, and Mr. Bukshtynov
never refused to pay the ATE premium. As his former counsel, Morris Law Group, commented on this fact, "Justice Whitten misapprehended the
premium" and they are unaware "where he got the idea". What is this: unprofessional attitude supported by the Judge's prejudice or his
intentional perversion of the facts?
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)
 to McMaster University, the Ontario Ministry of Labour, the Ontario Ministry of Health and Long-Term Care, 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
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.
- The Ministry of Labour responded and confirmed that McMaster University has neither reported the Athletic Centre building nor the indoor
track safety inspections since the facility was open in 2007 until Aug. 1, 2018 . No inspections reported for
more than 10 years!
- Two requests were also sent to McMaster University itself. They asked on "number of times the David Braley Athletic Centre's indoor track
has been inspected since its opening in 2007"  and requested "full schedule of inspections for David
Braley Athletic Centre since its opening in 2007" . Both requests were returned with the same statement: "there are
no records responsive to this portion of your Request" , .
Justice Whitten in his decision  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  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) , .
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?
- The Ministry of Labour also revealed  that McMaster University did not report the track incident happened
in November of 2010 and resulted in trauma claimed to court in 2015 , court file #12-38016. Just to make perfectly
clear, the Occupational Health and Safety Act (OHSA, 66(2))  in Ontario subjects every not reported incident to up
to $1,500,000 fine.
As  refers to only 2 incidents happened at the David Braley Complex for almost 12 years (2007-2018),
one could ask a natural question. Incidents inevitably happen at any time, but how many of them are not reported, and thus, hidden from
the statistics available to the public? The Ministry of Health and Long-Term Care responded to an additional request and provided data
on "Hamilton Paramedic Services attendances at the David Braley Athletic Centre". Their report  shows that,
among all calls for paramedics in 2007-2017, EMS attended this recreational facility for fracture/trauma/fall related incidents
- The request on "incidents that transpired at David Braley Athletic Centre since its opening in 2007" was also sent to McMaster University
in early August of 2018. Two appeals are initiated at the Information and Privacy Commissioner (IPC) of Ontario, but the requested data
has not been provided yet.
One more example is below.
- McMaster sent a mandatory accident report to the Occupational Health and Safety Branch of the Ministry of Labour on Dec. 15, 2011
. Some information provided in this report is falsified, e.g. the running club coach George Kerr is mentioned
as the "McMaster University Athletics and Recreation Member". But based on the available internal report ,
provided by the university itself, the coach had never been affiliated with this institution. Now, inadmissibility of both documents,
 and , to the trial should be also perfectly clear.
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 . . . " .
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 reasons for that, the facts provided below show the scale at which the problem appears at the moment.
- A request was sent to the FOI Office of the City of Hamilton in August 2018 to obtain information on "all inspections conducted
at the David Braley Athletic Centre" by the City. In December 2018 their deemed refusal was appealed (first tim) at the IPC Office due
to no response from the City. In April 2019 the second appeal was filed to the IPC as the City failed to disclose the records.
The requested data has not been provided yet.
- A request was sent to Hamilton Health Sciences (HHS) to release "all information on any medical treatment . . . provided by all
affiliated HHS hospitals and clinics as a result of any injuries and associated incidents that occurred at David Bradley Athletic Centre".
First, access was denied  under Personal Health Information and Protection Act (PHIPA) .
After appealing this denial at IPC, the Privacy & FOI Office at HHS changed the formulation to the following: "HHS does not maintain
a document or collection of information that would allow us to identify injuries and/or incidents associated with the particular location"
. Now, could the second formulation be trusted?
- The same request sent to St. Joseph's Healthcare Hamilton was timely returned with the statement that "specific data set not fully
captured or retrievable in a manner which would allow us to satisfy your request" .
Does it look logical: the Ministry of Health has such statistics, but the direct health care providers do not?
- The request to McMaster on incidents happened at the Athletic Centre  mentioned in the previous section was
appealed at IPC twice and has never been fully responded since August 2018.
The total statistics accumulated up to the moment speaks for itself. 9 FOI requests were followed by 8 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  (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  (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,  (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.
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.
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.
Bukshtynov v. McMaster University, 2018 ONSC 4819 (CanLII).
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.
 Email from J. Lichty to V. Bukshtynov, dated Nov. 28, 2009.
 Email from J. Murray to T.J. Kelly, Re: Track Incident, dated Dec. 10, 2011.
 Email from V. Bukshtynov to M. Alfano, Problem: Official Response Required, dated Mar. 27, 2010.
 FOI Acknowledgment & Extension Letter: City of Hamilton, Office of the City Clerk - FOI Section, file
#18-158, dated Oct. 4, 2018.
 FOI Acknowledgment & Extension Letter: McMaster University, FOI - Protection of Privacy Office, file
#2018-GR-011, dated Oct. 22, 2018.
 FOI Decision Letter: Hamilton Health Sciences, Privacy & FOI Office, dated Sep. 5, 2018.
 FOI Decision Letter: McMaster University, FOI & Protection of Privacy Office, file #2018-GR-010, dated
Oct. 24, 2018.
 FOI Decision Letter: McMaster University, FOI & Protection of Privacy Office, file #2018-GR-011, dated
Dec. 5, 2018.
FOI Decision Letter: Ministry of Labour, FIPPA Office, file #G-2018-00606/LP, dated Sep. 10, 2018.
 FOI Decision Letter: St. Joseph's Healthcare Hamilton, Privacy Office, dated Sep. 19, 2018.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
How do Costs Work in a Personal Injury Lawsuit Involving Multiple Defendants?, Preszler Injury Lawyers.
 IAFF Track and Field Facilities Manual, 2003 Edition, International Association of Athletics Federation.
 IAFF Track and Field Facilities Manual, 2008 Edition, International Association of Athletics Federation.
 Letter from Dane DeMan, McMaster University, to Eric Arsenault, Ontario Ministry of Labour, dated Dec. 15, 2011.
McMaster University "Athletic & Recreation" Waiver of Claims Form.
Ministry of the Attorney General: General Information about Jury Duty.
Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.
"Reckless and Pernicious" Refusal to Consider Settlement Results in Pyrrhic Victory, Borden Ladner Gervais LLP.
 Report of Findings, Giffin Koerth Smart Forensics, file #140942MTS, dated Jun. 19, 2015.
Transcript of Discovery for Facility Supervisor, T.J. Kelly, case #12-38016, Rodney v. McMaster University
(date of loss Nov. 2010).
K. Kirkpatrick and J. Ablaza, Pyrrhic Victory for Plaintiffs Who Refused Settlement,
The Lawyer's Daily, (Oct. 5, 2018).
S. Pazzano, Math prof took a risk with jogging track crash lawsuit and failed,
Toronto SUN: Sam Pazzano Courts Bureau, (Sep. 6, 2018).