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

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.
   

Analysis

1. The Admission into evidence of an untried medical test

The Court of Appeal began by considering how a trial judge should weigh the reliability of expert evidence that draws on novel or contested science, while performing their gatekeeping function in the test to admit expert evidence.[7]

The Court of Appeal held that a trial judge should make their determination by reference to a non-exhaustive list of criteria for reliability from two sources: (1) the Supreme Court decision in R. v. J.(J.-L.), 2000, and (2) the 2008 Report on the Inquiry into Pediatric Forensic Pathology in Ontario by Justice Stephen T. Goudge.[8]

The criteria from R. v. J. (J.-L.) for evaluating the reliability of novel science are:[9]

1. Whether the theory or technique can be and has been tested;
2. Whether the theory or technique has been subjected to peer review and publication;
3. The known or potential rate of error or the existence of standards; and,
4. Whether the theory or technique used has been generally accepted.

The criteria for reliability of novel science from the 2008 Report on the Inquiry into Pediatric Forensic Pathology in Ontario are:[10]

1. The reliability of the witness, including whether the witness is testifying outside his or her expertise;
2. The reliability of the scientific theory or technique on which the opinion draws, including whether it is generally accepted and whether there are meaningful peer review, professional standards, and quality assurance processes;
3. Whether the expert can relate his or her particular opinion in the case to a theory or technique that has been or can be tested, including substitutes for testing that are tailored to the particular discipline;
4. Whether there is serious dispute or uncertainty about the science and, if so, whether the trier of fact will be reliably informed about the existence of that dispute or uncertainty;
5. Whether the expert has adequately considered alternative explanations or interpretation of the data and whether the underlying evidence is available for others to challenge the expert’s interpretation;
6. Whether the language that the expert proposes to use o express his or her conclusion is appropriate, given the degree of controversy or certainty in the underlying science; and
7. Whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert’s opinion.

On the specific facts of the case, the Court rejected the TTC’s argument against the trial judge’s admission of the SPECT evidence.[11] 

2. The Exclusion of the Attendant Care Claims Forms

Second, the TTC argued that attendant care claims forms completed by the Plaintiff were improperly excluded from evidence.[12] The TTC alleged that such forms had been fraudulently completed, and were relevant both to the Plaintiff’s claim of disability and the Plaintiff’s credibility.[13] The Court of Appeal rejected that the attendant care claims forms were relevant to the Plaintiff’s claim of disability because they were not filled out by the Plaintiff.[14]

Regarding whether the forms could be admitted as relevant to the Plaintiff’s credibility, the Court of Appeal found that the trial judge had appropriately exercised her discretion to exclude them based on the  collateral facts rule.[15]

The Court of Appeal endorsed a definition of a collateral fact as a matter which is “not determinative of an issue arising in the pleadings or indictment or not relevant to the matters which must be proved for the determination of the case.”[16] The Court of Appeal went on to accept that matters of credibility and reliability are collateral facts under this definition.[17]

The collateral facts rule typically prohibits the admission of matters of credibility and reliability as collateral facts. However, the Court of Appeal endorsed a modification of the collateral facts rule, as advocated by Justice David M. Paciocco: “if the contradiction is probative enough to outweigh the prejudice it may cause, admit it”.[18]

Despite this modification to the collateral facts rule, the Court of Appeal still found that the trial judge had properly rejected the admission for the forms for four reasons.[19] First, the evidence surrounding the signing of the forms would be distracting to the jury to the task at hand.[20] Second, the trial judge was well placed to assess the balance of the probative value and prejudicial effect of the forms in light of their awareness of other available evidence.[21] Third, there were other opportunities to test the Plaintiff’s evidence and credibility on relevant issues.[22] Fourth, and possibly an extension of the third point, the TTC had other opportunity to attack the Plaintiff’s credibility and ensure the jury was not left with a distorted perception.[23]

Finally, the Court of Appeal rejected the argument that the trial judge had given the jury improper instruction on credibility.[24]

3. The Jury instructions on damages and articulation of the Test for Causation

Third, the TTC argued that the trial judge had failed to correct Plaintiff’s counsel misarticulation of the tests for causation and calculating damages.[25] However, the Court of Appeal found that all correcting instructions provided were appropriate.[26] 

4. Refusing to deduct non-earner benefits from the tort award

Fourth, the TTC argued that the trial judge improperly refused to deduct the Plaintiff’s non-earner accident benefits payments from the pecuniary damages tort award for past income loss.[27]

Section 267.8 of the Insurance Act requires pecuniary damages tort awards to be reduced by amounts received by the plaintiff in corresponding statutory accident benefits.[28] However, in this case, the trial judge had found that non-earner benefits were not related to loss of income, and therefore not deductible from the tort award for loss of income under s. 267.8 of the Insurance Act.[29] The Court of Appeal found that this was an error on the part of the trial judge.[30]

The Court of Appeal engaged in a broad review of the case law and principles underlying s. 267.8, which aims to prevent a plaintiff from obtaining compensation twice for the same damages.[31] This could otherwise occur where a plaintiff first obtained compensation from the no-fault statutory scheme, and then pursued damages under tort law.

The Court of Appeal affirmed that the correct approach to determine whether compensation provided under the no-fault statutory scheme should be deducted from a damages award under tort law is the flexible “silo approach”.[32] Under this approach, the court is only required to match the damages awarded under tort law with the three “silos” of compensation provided under the no-fault statutory scheme: income loss, health care expenses, and other pecuniary loss.[33] No further level of specificity is required or appropriate.[34]  

The Court of Appeal also took the opportunity to affirm the principle that statutory accident benefits are never to be deducted from general damages for pain and suffering under s. 267.8.[35]

The Court of Appeal held that non-earner benefits properly belong in the “silo” of income replacement benefits, which are properly deducted from an award for loss of income.[36] On this basis, the Court of Appeal found that the trial judge was required to deduct the non-earner benefits received by the Plaintiff from the Plaintiff’s pecuniary damages award.[37]

5. The Costs Award

Finally, the TTC argued that the trial judge had erred in awarding the Plaintiff all legal fees on a partial indemnity scale.[38] However, the Court of Appeal found that the TTC failed to meet the required test of “[convincing] the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”.[39]

Take Aways

This decision of the Court of Appeal provides important guidance on a wide array of topics. First, the Court of Appeal articulated a non-exhaustive list of factors for trial judges to consider when exercising their gatekeeping function in admitting expert evidence involving novel science. Second, the Court of Appeal endorsed a more nuanced approach to the collateral facts rule. Finally, the Court of Appeal provided clear instruction on how to compare damages awards to statutory benefits, for the purpose of determining whether a deduction is warranted under Section 267.8 of the Insurance Act.

This is an important case to be aware of, both for its impact on insurance law and for the law of evidence.

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