Bus driver suing TTC for $3M in case of the empty wallet

He was fired then rehired after theft charges dismissed in saga over lost item found in vehicle

It’s a strange legal saga with more twists and turns than a TTC bus on a detour. At the heart of it is a question: what was in the wallet that a young transit rider left on the seat of a bus one winter day in Etobicoke three years ago? Was it stuffed with hundred dollar bills, as he claimed? Or was it empty?

TTC driver Kevin Higgins is suing the transit agency for more than $3 million, alleging he was unjustly fired after he returned a wallet a passenger left on his bus.

The passenger insisted there had been more than $3,000 in the wallet when he dropped it, but by the time Higgins returned it, it was empty. The TTC believed the student, fired Higgins, and called in the police, who charged him with theft. After a judge dismissed the charge months later, the TTC hired Higgins back.

Higgins alleges malicious prosecution and intentional infliction of mental distress. The transit agency denies any wrongdoing, and says it acted in good faith throughout the case.

Higgins’ trouble began on the afternoon of Jan. 10, 2018, when he was midway through his shift driving the 191C Highway 27 Rocket. Higgins, then 34, had been working for the TTC for just over three years, during which time he’d accumulated a near-spotless record and a steady stream of customer commendations. As he prepared to pull out of the stop at Humber College, a passenger handed him a wallet he’d found on a seat.

According to a transcript of his trial on Sept. 7, 2018, Higgins testified he didn’t examine the wallet’s contents because he had to continue on his route.

But he radioed his supervisors to report it had been turned in, and stowed it safely on his dash. When he arrived back at Kipling station a supervisor met him and checked the wallet, which had no money in it.

By that time Shane Romario, a Humber College student in his early 20s, had called the TTC to report he’d left a wallet with a lot of money in it on the 191C. Higgins was still driving his route, and the TTC told Romario to meet him back at the Humber College stop. When Higgins arrived, he gave Romario the empty wallet.

The TTC launched an investigation into Romario’s claims. According to the agency’s statement of defence in the civil case, a review of video footage from the bus showed the passenger who found the wallet didn’t remove anything from it before giving it to Higgins. Because there are no cameras on TTC buses aimed at the driver’s seat, there was no record of what Higgins did after he took it.

Nearly 400 lost wallets are turned into the TTC every month, according to the agency, and employees are supposed to take the contact information of any passenger who hands one in. They’re also supposed to immediately record its contents with the passenger as a witness. Higgins didn’t follow that policy, the TTC found.

The investigator concluded Romario’s account “was credible” and that no one but Higgins could have taken money from the wallet. The TTC found that on the balance of probabilities Higgins had stolen the cash, and fired him on May 23, 2018. The agency referred their findings to the police, and Higgins was criminally charged with theft under $5,000.

At trial, Higgins conceded he hadn’t followed TTC procedure, but said he thought calling in the wallet would be sufficient. He denied taking any cash. “I did not steal that gentleman’s money,” he testified.

Higgins’ defence lawyer said in court there was no corroboration for Romario’s claim that he had any money in his wallet, and noted his statements about how much he allegedly lost had been inconsistent. He initially told the TTC it was $3,800, but on other occasions said it was $3,400 or $3,000.

Romario couldn’t be reached for comment. But in court he said that at the time of the incident he was employed at a Pita Land sandwich shop, and acknowledged it was unusual for him to be carrying so much cash. He told court that he’d taken the money out of his bank account to save it, and had it with him on the bus because he planned to redeposit the money to get a cheque to pay for his school fees, which he estimated at about $2,000.

In his oral judgment, Justice Jack M. Grossman said he was “left with some confusion about (Romario’s) banking arrangements.”

“The real question is, what was in the wallet?” he said.

Grossman didn’t conclude that Romario was lying, but determined the evidence didn’t prove that Higgins had committed the crime. “I must be satisfied beyond a reasonable doubt. I have that reasonable doubt,” Grossman said, and dismissed the charge.

The TTC reinstated Higgins in November 2018 and cleared his disciplinary record. But his fight with the transit agency wasn’t over. Although the TTC agreed to pay his legal fees and the wages he would have earned during his termination, there was a dispute about how much time he was owed for. He filed a grievance and on Jan. 20, more than two years after he was reinstated, he was awarded his full back wages in a labour arbitration decision.

Higgins is suing the transit agency over his termination and its alleged treatment of him after reinstatement, seeking $3.25 million in general, aggravated, and punitive damages.

“I am at a total loss to understand what TTC management was thinking. It appears that they went out of their way to criminalize an innocent worker,” said E.J. Guiste, Higgins’ lawyer in the civil case.

In its statement of defence, the TTC denied Higgins’ allegations and said its decision to fire him “was reasonable under the circumstances and based exclusively on the investigation and the objective findings therein.”

“The TTC is committed to a fair and thorough process when following through on cases of this nature,” said agency spokesperson Stuart Green, noting the TTC hired Higgins back after the charge was dismissed. “The initial disciplinary action was made following a thorough and good faith investigation into allegations of theft by a passenger.”

Higgins declined an interview request. But in a written statement he said he never imagined he could be fired for turning in a lost wallet. His TTC job came with a salary of $80,000 plus benefits, and he told court that before he was reinstated he struggled to support his partner and daughter.

“I went from being a valued and dedicated employee to a criminal in the blink of an eye,” he said.