Introduction
The recent Court of Appeal decision in Kolapully v. Myles1 is significant for two key reasons. First, it addresses the admissibility of Single Photon Emission Computed Tomography ("SPECT") scan evidence, particularly in the context of novel and contested science. Second, it examines the deductibility of non-earner benefits from an award of loss of income under s. 267.8 of the Insurance Act.
In the decision under review, the respondent, Shoba Kolapully, while crossing the street, was struck by a TTC bus driven by Lynda Myles (appellants). During the trial, the Plaintiff introduced evidence that she experienced a concussion through a SPECT scan, which the Trial Judge found was a diagnostic aid and not novel science. After the six-week trial, the Plaintiff was awarded $175,000 in non-pecuniary general damages and $200,000 in past income loss. These amounts were reduced by 25% due to the Plaintiff's contributory negligence. The Trial Judge considered the roughly $95,000 that the Plaintiff had received for non-earner benefits but elected not to deduct this amount from the jury award.2
Reliability of Expert Opinions Based on Novel or Contested Science and the Admissibility of SPECT Scan Evidence at Trial
The Trial Judge ruled that the Plaintiff's clinical neurologist would be permitted to testify about the SPECT scan, which had been a diagnostic tool the neurologist utilized to diagnose the Plaintiff with a mild traumatic brain injury. The Court of Appeal concluded that the Trial Judge correctly found the SPECT scan to be admissible in this context and was "alive to her gatekeeping role and the applicable legal principles."3
In making this decision, the Court of Appeal first reviewed the test for admitting expert evidence, particularly that which relies on "novel or contested science, or science being used for a novel purpose."4 Expert evidence in general is subjected to a two-step admissibility test. The first step is a threshold requirement, with the second step focused on the Court's gatekeeper function. Expert evidence which relies on novel or contested science, however, has particular concerns with respect to reliability. The Court espoused that there is a difference between reliable in the clinical context and reliable in the legal context; stating that methods "commonly used and reliable enough for clinical purposes might nonetheless be treated as novel when used for forensic or evidentiary purposes."5 Thus, while SPECT scans may be utilized in a clinical context, their use for forensic purposes remained novel.
The Court of Appeal reviewed the status of the law with respect to determining reliability. In doing so, the Court noted that Justice Stephen Goudge had created a seven-factor checklist that the Court noted to be an effective tool for determining reliability of novel or contested science. This checklist was not exhaustive, and no single factor held greater weight than any other. Instead, they would be considered and applied in the individual context for which they were presented. The factors are:
- the reliability of the witness, including whether the witness is testifying outside his or her expertise,
- 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,
- 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,
- 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,
- 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,
- whether the language that the expert proposes to use to express his or her conclusions is appropriate, given the degree of controversy or certainty in the underlying science, and
- 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.6
The Court of Appeal agreed with the Trial Judge's decision to admit the SPECT scan into evidence. The Court noted that such a determination was based on the factual situations unique to each case. However, the Trial Judge correctly considered the factors necessary to admit the evidence, even if they had not considered it from the context of novel science. The Court of Appeal was critical of the appellants, TTC, for not having provided an expert to dispute the admissibility of SPECT scans; as a result, the evidence was essentially unchallenged aside from legal contest and cross-examination. The Court of Appeal also approved of the Trial Judge's consideration that the SPECT scan was but one of several diagnostic tools utilized by the clinical neurologist in diagnosing the Plaintiff with a mild traumatic brain injury. By distinguishing this case from cases where the expert relied solely on the SPECT scan and noting the TTC's failure to introduce contrary evidence against the use of SPECT scans, the Trial Judge effectively applied a nuanced approach to reliability, as is required in cases with novel or contested science.
The Court of Appeal clarified that the decision did not establish a blanket rule of admissibility for SPECT scans. Admissibility is dependent on the circumstances of the case, of which a Trial Judge properly exercising their discretion could find SPECT scans inadmissible. Nevertheless, the Court of Appeal did approve of the admissibility and use of SPECT scans at trial despite their contested nature.
Deductibility of Non-Earner Benefits
The Trial Judge refused to deduct the $95,000 that the Plaintiff had been provided in non-earner benefits from her past loss of income award, despite s. 267.8 of the Insurance Act mandating the reduction of pecuniary damages by the corresponding accident benefits. The Trial Judge relied on the 2005 Ontario Court of Appeal decision, Walker v. Ritchie,7 for the proposition that non-earner benefits are not deductible from a loss of income award. While the Trial judge considered the 2018 Court of Appeal decision Cadieux v. Cloutier,8 which found that non-earner benefits were deductible from income loss, the Trial Judge believed this to be obiter, as the decision was not focused on non-earner benefits.
These two cases, Walker and Cadieux, reflected the two prior approaches to the deductibility of benefits. In Walker, the Court utilized an "apples-to-apples"9 approach, where similar benefits were deducted from similar benefits.10 In this case, the Court had found that non-earner benefits represented loss of "daily life functions, and therefore more akin to general non-pecuniary damages."11 Notably, under the Insurance Act, benefits were only deductible from pecuniary damages.12 As a result, under Walker, these damages were not deductible.
Conversely, in Cadieux, the Court applied a "silo" approach. Here, benefits were grouped into three distinct silos – income-related benefits, healthcare benefits, and other non-pecuniary benefits. In this case, the Court specifically included non-earner benefits within the income-related benefits silo and, therefore, these benefits would have been deductible.13
The Court of Appeal reversed the Trial Judge's decision, reaffirming Cadieux and the approach to the deductibility of non-earner benefits that it espoused. The decision focused on the prevention of double compensation, which s. 267.8 of the Statutory Accident Benefits Schedule aimed to prevent.14 As a result, the Trial Judge erred in following Walker, which was overruled by Cadieux. The Trial Judge further erred in not applying Cadieux and deducting non-earner benefits from the income loss award. This decision underscores the necessity to consistently apply the "silo" approach when deducting benefits, in order to prevent double recovery, ensure the legislative intent behind the SABS, and maintain equitable compensation practices. As a result, the case affirmed that, under the current approach to the deductibility of accident benefits, any SABS non-earner benefits are deductible from an income loss award at trial.
Conclusion
This is an important case in the evolving landscape of tort and insurance law. The Court of Appeals review of the admissibility of SPECT scan evidence did not make a final determination on admissibility but opened the door to introducing such evidence with heavy judicial support. It also clarified the process for determining the reliability of expert evidence, which is supported by or based on novel or contested science, with the seven Gouge factors for reliability. Additionally, the clarification on the deductibility of non-earner benefits provides essential guidance for future litigation, emphasizing the importance of preventing double recovery while ensuring fair compensation.
Footnotes
1. 2024 ONCA 350 [Kolapully 2024].
2. Kolapully v. Myles et al., 2022 ONSC 6674.
3. Kolapully 2024, supra note 1 at para 23.
4. Ibid at para 14.
5. Ibid at para 20.
6. Ibid at para 17.
7. 2005 CanLII 13776 (ON CA) [Walker].
8. 2018 ONCA 903 [Cadieux].
9. Walker, supra note 7, at para 79.
10. Ibid.
11. Ibid at para 84.
12. Insurance Act, RSO 1990, c I.8, at s. 267.8(7) [Insurance Act].
13. Cadieux, supra note 8 at paras 4-8.
14. Insurance Act, supra note 12.
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