The ONCA in Kolapully v Myles, 2024 ONCA 350, has confirmed that non-earner benefits under the O. Reg. 34/10: Statutory Accident Benefits Schedule (“SABS”), are deductible from past income loss damages in tort. The Court found that non-earner benefits fall in the silo for income replacement benefits and are thus deductible.
Accordingly, the Court held that the plaintiff’s receipt of $95,000 in non-earner benefits is deductible from the $200,000 damages award for past income loss in tort, reducing the award to $105,000.
The Court provides a helpful analysis of the change in approach for deducting SABs benefits from tort damages from “apples to apples” (Bannon v. McNeely, 2018 ONCA) to the more flexible “silo” approach (Cadieux v. Cloutier, 2018 ONCA 903).
The decision is a worthwhile read and touches upon other interesting aspects of law, including distinguishing Meade v. Hussein, 2021 ONSC 7593 in permitting the admission of SPECT evidence after distinguishing, and awarding the plaintiff (in tort) her legal costs and disbursements for the LAT proceeding citing the Judge’s discretion to award “costs of and incidental to a proceeding” under section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and para. 129 in Cadieux: “Legal fees and disbursements in pursuing SABs can reasonably be considered incidental to the proceeding where the SABs have reduced the damages payable by the tortfeasor”.
