The Ontario Court of Appeal Provides Important Guidance on Evidence Involving Novel Science, Collateral Facts, and Statutory Benefits

  • June 04, 2024
  • Thomas Russell, Stieber Berlach

Background

In March of 2012, Shoba Kolapully was struck by a Toronto Transit Commission (“TTC”) bus, driven by Lynda Myles.[1] Kolapully commenced an action against Myles and the TTC for general and specific damages in 2013, claiming serious and permanent physical and psychological impairment.[2]

In 2022, a six-week trial took place, where a jury allocated 25% contributory negligence against Kolapully and 75% as against  the TTC and Myles.[3] The jury awarded Kolapully non-pecuniary damages and damages for past loss income loss. Importantly, Kolapully had received non-earner benefits under the Statutory Accident Benefits Schedule in a prior proceeding before the Licence Appeal Tribunal.[4] The trial judge determined that these benefits would not be deducted from the damages for past income loss. [5]

The Appeal

The TTC appealed, arguing that the trial judge erred in five ways:[6]

  1. Improperly allowing into evidence an untried medical test, the Single Photon Emission Computed Tomography (“SPECT”) scan of Kolapully;
  2. Improperly excluding evidence of attendant care claims forms Kolapully signed in blank as part of alleged participation in a fraudulent scheme;  
  3. Improperly articulating the test for causation in their jury instructions and instructions on the calculation of damages;
  4. Refusing to deduct non-earner benefits from the tort award; and
  5. Erring in the determination of the costs award.