Kolapully v. Myles
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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The Facts
In March 2012 Shoba Kolapully was struck by a Toronto Transit Commission bus while crossing a Toronto street. She claimed lasting physical and psychological harm, including a mild traumatic brain injury, and she had been found catastrophically impaired by the Licence Appeal Tribunal in 2018. After a six-week jury trial in 2022, the jury awarded $175,000 for non-pecuniary damages and $200,000 for past loss of income, with fault divided 75% to the TTC and 25% to her. By trial she had received about $95,000 in non-earner benefits under the accident benefits regime. The trial judge refused to subtract that amount from the income loss award, relying on an older Court of Appeal case that treated non-earner benefits as unrelated to income. The TTC appealed that ruling and also challenged the admission of testimony about a SPECT brain scan, the exclusion of attendant care forms the plaintiff had signed in blank, and the way the jury was instructed on causation and damages.
What the Court Decided
The Court allowed the appeal in part, on the deduction issue only. Justice Lauwers wrote the reasons, with two colleagues agreeing. The Court held that its own more recent decision in Cadieux, which replaced a benefit-by-benefit comparison with a grouping of benefits and damages into broad categories, was binding and had undermined the older case the trial judge followed. Non-earner benefits, it concluded, sit in the income replacement category, so under section 267.8 the roughly $95,000 had to come off the $200,000 past income loss award, leaving about $105,000. The aim of the scheme is full compensation without double recovery. The TTC's other complaints failed. The SPECT scan evidence was properly admitted as a diagnostic aid because a clinical neurologist had reached the diagnosis, although the Court stressed that it was not endorsing SPECT scans as reliable for brain injury in civil cases generally. The blank-signed attendant care forms were rightly kept from the jury, and the instructions were adequate. The plaintiff was awarded $40,000 in costs of the appeal.
Many seriously injured people receive non-earner benefits for years while their lawsuit proceeds, and a defendant will usually ask for a deduction at trial. This decision settles that those benefits come off a past income loss award, which affects how both settlements and verdicts are calculated. It also shows how a court treats SPECT scan evidence: admissible when it supports a diagnosis a specialist has already made, but not a free-standing proof of brain injury.
Does This Affect You?
- ✓You are receiving non-earner or income replacement benefits and also suing the at-fault party for lost income.
- ✓You are valuing a settlement and need to know which accident benefits will be deducted from the tort award.
- ✓Your brain injury claim involves SPECT or other imaging that the defence says is unreliable.
Key Takeaways
- Non-earner benefits already received are deducted from a tort award for past loss of income under section 267.8 of the Insurance Act.
- The Court of Appeal treats benefits and damages in broad categories, so that a plaintiff is not paid twice for the same type of loss.
- A SPECT scan can be admitted as a diagnostic aid where a specialist has diagnosed the injury, but the case does not make the scan reliable proof on its own.