Kolapully v Myles Belongs on Your Summer Must Read List

A riveting review of causation, deductibility and the law of evidence featuring a SPECT twist and Costs commentary that will keeping you entranced until the very last paragraph.

Written by: Joseph Cescon, Partner and Avery Kavanaugh, Summer Student



  • The facts of this case were as follows:
  1. The 2012, the respondent was struck by a Toronto Transit Commission (TTC) bus while crossing the street. The appellant was driving the bus as an employee of TTC.
  2. The respondent commenced an action for general and specific damages in December of 2013, claiming that she suffered serious and permanent physical and psychological impairment as a result of the collision.
  3. The respondent also initiated a proceeding at the License Appeal Tribunal, which found that she was catastrophically impaired according to the Statutory Accident Benefits Schedule (SABS).
  • In 2022, a jury awarded the respondent with $175,000 in non-pecuniary damages and $200,000 in damages for past loss of income. The jury apportioned 25% of the degree of negligence to the respondent, and the remainder to the appellant. Lastly, the trial judge determined that the amount that the respondent had received for non-earner benefits under the SABS – approximately $95,000 – was not deductible from the damages award for past income loss under section 267.8 of the Insurance Act.[1]

2. The Appeal

  • On appeal, the appellants put forward four separate arguments:
  1. The trial judge erred in allowing the Single Photon Emission Computed Tomography (SPECT) scan of the respondent into evidence;
  2. The trial judge erred in excluding evidence of attendant care claims forms signed by the respondent as part of an argument which speaks to the credibility of the respondent;
  3. The trial judge erred in articulation of the test for causation, particularly in her jury instruction;
  4. The trial judge erred in refusing to deduct the non-earner benefits from the tort award under s. 267.8 of the Insurance Act, and therefore erred in her cost award.
  • Justice Lauwers addressed each of these arguments in the ONCA decision and in doing so, provided a strong overview of the admission of expert evidence – specifically in relation to novel science, the admissibility of evidence which speaks to the credibility of a respondent, the correct test for causation, the deductibility of accident benefits in tort, and costs.

2.1. The Admission of Expert Evidence Regarding SPECT Scan Results

  • The trial judge permitted a clinical neurologist to testify about a SPECT scan and a subsequent report of the results as one of the tools to support the respondent’s diagnosis of mild traumatic brain injury (TBI) resulting from the accident.
  • At issue was whether the scan could be admitted under s. 35 of the Ontario Evidence Act, S.O. 1990, c. E.23 or as a common law exception to s. 52 of the

2.1.1 The Test for the Admission of Expert Evidence

  • Justice Lauwers affirmed the two-step test for the admission of expert evidence at trial:
  • Firstly, the evidence must pass the threshold requirement. At this stage, the trial judge will assess the four elements of admissibility: (1) whether the evidence is relevant, (2) whether it is necessary in assisting the trier of fact, (3) whether there is another evidentiary rule which applies to exclude it, and (4) whether the expert is properly qualified. All four of the elements are required to pass this stage.
  • At the second stage, the trial judge must assess the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of expert evidence.[2]

2.1.2 The Admissibility of SPECT Scans as a Diagnostic Aid

  • Considering the novelty of SPECT scans, Justice Lauwers considered various factors mentioned in the lengthy conversation of admissibility of expert evidence pertaining to novel science, particularly those listed by Justice Stephen T. Goudge’s Report on the Inquiry into Pediatric Forensic Pathology in Ontario[3], and in the Mole and Mole v Manwell[4] Lauwers J.A. clarified that these factors used for assessing evidence are not meant to be exhaustive, mandatory, or expressly listed nor followed in every judicial. Moreover, he acknowledged the “reliable foundation” test set out in R. v. J(J.-L.), which holds that the admissibility of expert opinion premised on novel or contested science will depend on the reliability of the underlying scientific methodology, and not the conclusions that the science generates.[5] He concluded by affirming that trial judges are to use the factors and tests to direct their own discretion in exercising their evidentiary gatekeeper function to determine whether expert evidence should be admissible or not.
  • Seeing that the trial judge was fully alive to the established steps of the test for the admission of expert evidence, Justice Lauwers was satisfied with her decision to differentiate the admissibility of the respondent’s SPECT scan from that of the reliability of SPECT in Meade v Hussein[6]. The Meade decision involved a diagnosis of TBI based solely on the SPECT scan, whereas in the present case, the clinical neurologist assessing the respondent had already made a TBI diagnosis before sending her for the scan. The SPECT scan was therefore merely used as a “diagnostic aid” in obtaining any further information that it may had been able to offer.
  • In consideration of the contestability of the science of SPECT scans, Justice Lauwers agreed with the trial judge that, because it was merely used as a diagnostic aid, the scan should be admissible. He added, however, that the admissibility of this evidence will continue to rely on the specific evidence presented at trial, and that a trial judge will be free to use her own discretion in deciding the admissibility of the scan based on the evidence that was presented to them.

2.2. The Admissibility of Evidence Which Speaks to Credibility

  • The appellants also sought to introduce into evidence attendant care forms signed in blank by the respondent. The argument for doing so was two-fold: firstly, the forms were relevant to the respondent’s disability claim, and secondly, the forms spoke to the allegation that the respondent was not credible.
  • Considering that the respondent’s action did not include a claim for attendant care, the trial judge found that the forms were irrelevant to a fact at issue and were therefore excluded from evidence. The appellants renewed this argument on appeal, and Justice Lauwers agreed with trial judge. He added, however that, had the attendant care claim been advanced by the respondent’s counsel, the way in which the forms were completed and processed would have been relevant.
  • After establishing this, Justice Lauwers went on to discuss the appellant’s second argument, that the evidence should be admissible for questioning on a pure credibility basis. He ultimately found that the signed attendant care forms were not admissible, as the trial judge had adequately exercised her discretion using the collateral facts rule.

2.2.1 The Collateral Facts Rule

  • The collateral facts rule provides the foundation for an unresolved question in law about whether the credibility or reliability of a respondent exists as a collateral fact. Justice McIntyre describes a collateral matter as one which is “not determinative of an issue arising in the pleadings or indictment or [is] not relevant to the matters which must be proved for the determination of the case.”[7] Justice Lauwers adopted a modified version of this rule to reflect a principle that has become increasingly accepted in many areas of the law of evidence: if the judicial effect is more probative than the prejudice it may cause, the evidence ought to be admitted.[8]
  • Noting this interpretation of the collateral facts rule, Justice Lauwers advanced four reasons why the trial judge’s decision not to allow the forms into evidence was a reasonable exercise of her discretion:
  1. The admission of evidence about the forms would have taken the jury down a difficult and time-consuming path. A path which the collateral facts rule was designed to prevent.
  2. The trial judge adequately balanced the probative value and prejudicial effect in light of her awareness of the other evidence that was to be adduced.
  3. She fairly and accurately considered that the appellant’s case included an attack on the respondent’s credibility on the substantive evidence before the jury.
  4. The exclusion of the forms did not deprive the respondent of its line of attack, or leave the jury with a distorted perception.
  • It was concluded that the jury was well-equipped and instructed to assess the credibility of the respondent using the evidence that was admitted into evidence. The trial judge’s decision to exclude the attendant care forms was therefore an adequate application of the collateral facts rule.

2.3 The “But-For” Test for Causation and the Calculation of Non-Pecuniary Damages

  • The appellants also advanced the argument that the trial judge made two errors in her jury instructions. Firstly, that the trial judge failed to adequately correct the jury after the respondent’s counsel erroneously referred to the “material contribution test” as the applicable test for causation. Justice Lauwers dismissed this argument on the basis that the trial judge directly addressed this mistake, and clearly stated that the correct test for causation is the “but-for” test. She then went on to comprehensively explain the correct test and its application to the facts.
  • Secondly, the appellants argued that the trial judge failed to provide an adequate instruction to the jury following the respondent’s counsel’s statement that the calculation of non-pecuniary damages should be done on a per diem Again, Lauwers J.A. dismissed this argument, stating the trial judge clearly corrected counsel, and instructed the jury that the calculation should not be reduced to such a formula.

2.4 Non-Earner Benefits Are Deductible from an Award for Loss of Income Under s. 267.8 of the Insurance Act.

  • The appellants sought to have the respondent’s non-earner benefits deducted from the $200,000 damages award for past income loss that she received at trial pursuant to section 267.8 of the Insurance Act. S. 267.8 mandates that, in an action for loss or damage from bodily injury in an automobile accident, the trial must reduce the pecuniary damages tort award by the amount received by the plaintiff in corresponding Statutory Accident Benefits Schedule.
  • The trial judge dismissed the appellant’s motion, relying on the decision of Walker v Ritchie, in which it was decided that non-earner benefits are not related to loss of income and are therefore not deductible from a tort award for loss of income.[9] She further cited Walker to say that non-earner benefits are most akin to general damages and are therefore not applicable to the deductible rule under the s. 267.8(7).
  • The appellant argued that the Walker decision, and that of the trial judge, were in contradiction with the Supreme Court of Canada decision in Cadieux v Cloutier, which listed non-earned benefits in the category of income replacement benefits.[10] Justice Lauwers agreed with the appellant’s argument on this issue.

2.4.1 Ontario’s Hybrid Compensation System

  • In Ontario, victims are compensated for injuries suffered from motor vehicle collisions through a hybrid of no-fault insurance coverage and traditional tort law. The statutory scheme aims at full compensation for an injured party whose injuries exceed the statutory threshold, however it does not allow an injured plaintiff to be compensated twice if they choose to pursue both compensatory routes.
  • In 1996, the Ontario legislature amended the statutory scheme to prescribe three categories of statutory accident benefits, each to be deducted from a corresponding category of tort damages: (1) income loss and loss of earning capacity, (2) health care expenses, and (3) other pecuniary loss.
  • Out of this amendment came two lines of case law. The first one continued to use the “apples to apples” approach set out in Bannon v McNeely in 1998[11], which understood the amendment to mean that statutory accident benefits were only to deductible based on a “precise matching of individual benefits within those against the identical head of damages,”[12]. The second approach is a more flexible, “silo” approach, under which statutory accident benefits falling within the same broad category will be deductible from all damages awards in the corresponding broad category, pursuant to the SCC decision in Gurniak v Nordquist.[13]

2.4.2 The “Silo” Approach as the Correct Approach to Deductions Under S. 267.8.

  • Cadieux is therefore understood as the correct interpretation of s. 267.8, meaning that the Insurance Act deductible does not require a strict matching game, but on a far less particular level. Statutory accident benefits falling within the broad definition of one of the three “silos” – income loss, health care expenses, and other pecuniary losses – will be deducted from damages awards. Moreover, in the Cadieux decision, non-earner benefits were considered to exist within the silo for income loss.
  • The result in Walker was effectively overruled by the court in Cadieux, and the Cadieux decision is therefore binding on the trial judge. Justice Lauwers deducted the $95,000 that the respondent had received for non-earner benefits under the SABS from the pecuniary damages award in his disposition.

2.5 The Trial Judge Did Not Make an Error in her Cost Awards

  • Justice Lauwers dismissed the appellant’s motion for leave to appeal the trial judge’s cost award by the trial judge, who awarded the respondent all legal fees on a partial indemnity scale, including the costs of the LAT hearing. The governing test for leave is that it will not be granted except “in obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”.[14] This was not established by the appellants.
  • The appellants put forward several reasons to support the argument that the trial judge made errors in her cost award, specifically that the trial judge was incorrect in finding that the appellants viewed the case through a “fraud lens”, and in awarding the respondent her costs of the LAT hearing. Justice Lauwers dismissed all of the appellant’s arguments, concluding that the respondent’s successful pursuit of the catastrophic impairment designation gave her access to funds for medical, rehabilitation, attendant care, and housekeeping costs, and in turn narrowed the scope of her tort action and reduced the quantum of damages recoverable against the appellant. Nevertheless, the trial judge had discretion over whether she would order the appellant to pay for the cost of the respondent’s LAT hearing.

2.6 Conclusion

[30]  Justice Lauwers’ decision holds significant importance as it addresses various long-standing legal questions regarding the admissibility of evidence, the correct test for causation, the application of the “silo approach” under s. 267.8 of the Insurance Act, and judiciary discretion in awarding costs. This judgment sets importance legal benchmarks, guiding future cases involving similar complexities and disputes.

[1] Insurance Act, R.S.O. 1990, c. I.8 (Insurance Act).

[2] White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015 2 SCR 182

[3] Justice Stephen T. Goudge, Report on the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008), at p. 495.

[4] Mole and Mole v Manwell, 2017 ONSC 3357, at paras. 81-83.

[5] R. v. J.(J.-L.), 2000 SCC 51

[6] Meade v Hussein, 2021 ONSC 7850

[7] R v Krause (1986), 1986 CanLII 39 (SCC), [1986] 2 SCR 466

[8] R. v. F.(C)., 2017 ONCA 480 (CanLII), at para 58.

[9] Walker v Ritchie (2005), 2005 CanLII 13776 (ON CA)

[10] Cadieux v Cloutier, 2018 ONCA 903, at para. 12.

[11] Bannon v. McNeely, 1998 CanLII 4486 (ON CA)

[12] Ibid, at 679.

[13] Gurniak v, Nordquist, 2003 SCC 59

[14] Brad-Jay Investments Ltd. v. Szijjarto, 2006 CanLII 42636 (ON CA)

Joseph Cescon


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