COURT FILE NO.: CV-13-494077

DATE: 2022-10-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHOBA KOLAPULLY

Plaintiffs

– and –

LYNDA MYLES and TORONTO TRANSIT COMMISSION

Defendants

Dahab, M. and Kaur, A. for the Plaintiff

Townsend, C. and Styler, D. for the Defendants

HEARD: June 29, 2022

Non-earner benefit DECISION

P.T. Sugunasiri, J.:

Overview:

[1] On March 6, 2012, Ms. Kolapully was on her way to catch a bus to the library when she was struck by a TTC bus as she crossed Ellesmere Road at Nielson. At trial, the jury awarded Ms. Kolapully $200,000.00 in damages for past loss of income. After a reduction for contributory negligence, the plaintiff was awarded $150,000.00. The plaintiff had also previously received $95,354.23 in non-earner benefit payments (“NEBs”) under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”). Section 267.8 of the Insurance Act, R.S.O. 1990, c. l.8 mandates that in an action for loss or damage from bodily injury in an automobile accident, the trial judge must reduce the pecuniary damages awarded to the plaintiff by certain statutory accident benefits available to the plaintiff before the trial to avoid double recovery.

[2] In Walker v. Ritchie (2005), 2005 13776 (ON CA), 197 O.A.C. 81, rev’d on other grounds, 2006 SCC 45, [2006] 2 S.C.R. 428, the Court of Appeal used an “apples to apples” approach to correlate the SABS benefits with the tort awards for deduction purposes. It concluded that NEBs were intended to compensate for loss of enjoyment of life and were not to be deducted from a jury award for loss of income. In Cadieux v. Clouter, 2018 ONCA 903, 143 O.R. (3d) 545, the Court of Appeal took a broader silo approach to deductions, and in an obiter comment, categorized NEBs and income replacement benefits in the income loss silo. Complicating the matter is the change in SABS between the two cases, which the Defendants argue supports the Court of Appeal’s obiter characterization of NEBs as falling within the broader income loss silo and therefore deductible from the jury award for past income loss.

[3] For the reasons that follow, I find that neither the changes to the SABS nor the adoption of a silo approach in Cadieux override the Court of Appeal’s conclusion in Walker that NEBs are not related to loss of income and are not intended to be deducted from a tort award for income loss. I agree with the Plaintiff that if the Court of Appeal intended to overturn its robust analysis of NEBs in Walker, it would have expressly done so as it did in overturning its “apples to apples” approach used in Bannon v. McNeely, 1998 4486 (ON CA), 38 O.R. (3d) 659 (C.A.). In my view, I am bound by the Court of Appeal’s description of NEBs in Walker, at paras. 84 and 87, which expressly state:

On a plain reading of these provisions, it appears that NEBs are awarded to compensate for loss of daily life functions and therefore are more akin to general non-pecuniary damages. While s. 12(4) entitles an insurer to deduct payments for loss of income from NEBs, there is nothing in s. 12 to suggest that benefits are in any way related to loss of income. Section 12 provides a flat rate of benefits that is not tied in any way to past or future income loss or earning capacity. Rather than serving as a proxy for income replacement, NEBs provide a benefit for those persons unable to engage in the activities in which they would ordinarily have engaged but for the accident. That is, NEBs are designed to compensate for loss of enjoyment of life. In the case at bar, the activities that Stephanie was prevented from engaging in were competitive athletics, her social life and her activities as a student. None of these activities involved earning an income.

While the rationale for providing NEBs is not spelled out in the legislation, as noted above, the activities compensated for pursuant to s. 12 of the Regulation bear no relationship to income or earnings. Section 12 is a stand-alone provision in Part III of the Regulation, the heading of which is “Non-earner Benefit”. Apart from s. 12(4), which prevents a person from receiving both NEBs and payments for loss of income, payment of NEBs is not linked to income loss payments. NEBs are not predicated upon, or complementary to, the provisions made for those in receipt of benefits for loss of income. If NEBs are akin to any head of damages, it is non-pecuniary or general damages and s. 267.8(7) specifically prohibits reducing damages for non-pecuniary loss because of benefits received. Had the legislature wished to provide for the deductibility of NEBs, it could have done so within the scope of deductions for “other pecuniary loss” in s. 267.8(6) but it chose not to. Accordingly, in our view, the trial judge correctly refused to treat NEBs as a benefit in respect of which a deduction must be made from an award of damages under s. 267.8.

Analysis:

A. The changes to the Regulation post-Walker do not impact the Court of Appeal’s analysis of the provision

[4] The Defendants correctly argue that the SABS regime and the provisions governing the NEBs in place at the time Walker was decided were different than those at play at the time of Ms. Kolapully’s accident and considered in Cadieux. For ease of reference, I set out the relevant provisions of the Insurance Act and the SABS below.

1. Insurance Act, R.S.O. 1990, c. I.8

Income loss and loss of earning capacity 267.8 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:

1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.

2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.

3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment. 1996, c. 21, s. 29.

Health care expenses

(4) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts:

1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care.

2. All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law. 1996, c. 21, s. 29.

(7) non-pecuniary loss

In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages in respect of non-pecuniary loss to which a plaintiff is entitled shall not be reduced because of any payments or benefits that the plaintiff has received or is entitled to receive. 1996, c. 21, s. 29.

2. Statutory Accident Benefits Schedule, O. Reg. 34/10

The relevant regulatory schemes are from 1996 and 2010:

a) 1996: Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96.

b) 2012: Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.

Section 2(4) and 3(7) – Definitions and Interpretation

1996 – Walker

2012 – accident/Cadieux

2(4) For the purpose of this Regulation,

3(7) For the purposes of this Regulation,

a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged in before the accident.

(a) a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged in before the accident;

(d) payments for loss of income under an income continuation benefit plan are deemed to include:

(i) payments of disability pension benefits under the Canada Pension Plan

(ii) periodic payments of insurance, irrespective of whether the contract for the insurance provides for a waiting period, deductible amount or similar limitation or restriction and irrespective of whether the contract is paid in whole or in part by the employer, if the insurance is offered by the insurer,

(A) to persons who are employed while the contract for the insurance is in effect, and

(B) only on the basis that the maximum benefit payable is limited to an amount calculated with reference to the insured person’s income from employment;

[5] The definition for “complete inability to carry on a normal life” is the same in both regulations. The 2010 Regulation includes a new provision: s. 3(7)(d). This addition deems some benefits “payments for loss of income.” The Defendants submit that the addition of this list indicates a “wider scope for deductions to ensure that there is not double indemnification”. This list does not include NEBs. Under this paragraph, disability pension benefits under the Canada Pension Plan (“CPP”) are deemed to be payments for loss of income. So too are periodic payments, but “only on the basis that the maximum benefit payable is limited to an amount calculated with reference to the insured person’s income from employment” (emphasis added). In other words, this list makes clear that payments are deducted only if they are tied to income.

Section 12(1) – Main section for non-earner benefits

1996 – Walker

2012 – accident/Cadieux

12. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

13. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

14. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

15. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit

16. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

17. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

18. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. Was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

i. Was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. Completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and training.

ii. Completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and training.

[6] There are small changes in wording in this section (i.e., from “qualifications” to “conditions” in 12(1)). Section 12(1)(2) was also removed, which had previously allowed people who were initially on the caregiver benefit to switch to the non-earner benefit.

Sections 12(2) – 12(7) – Main section for non-earner benefits continued

1996 – Walker

2012 – accident/Cadieux (except for provisions marked with *which were different by the time Cadieux was decided but not relevant to the analysis)

(2) Subject to subsection (3), the amount of the non-earner benefit shall be $185 for each week that the insured person is eligible to receive the benefit.

(2) subject to subsection (3), the amount of the non-earner benefit is $185 for each week during the period that the insured person suffers a complete inability to carry on a normal life …

(3) If a person qualifies for a non-earner benefit under paragraph 3 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit shall be $320 for each week that the insured person continues to be eligible to receive the benefit.

(3) If a person qualifies for a non-earner benefit under paragraph 2 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit is $320 for each week that the insured person suffers a complete inability to carry on a normal life …*

(4) the insurer may deduct the following amounts from the amount payable to an insured person as a non-earner benefit:

1. Net weekly payments for loss of income that are being received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan

2. Net weekly payments for loss of income that are not being received by the insured person but are available to the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan, unless the insured person has applied to receive the payments for loss of income

…Less the total of all other income replacement assistance, if any, for the same week.

(5) for the purpose of subsection (4), subsections 7(2) [EI, sick leave, and workers’ compensation are not reduced] and (3) [loss of income determined by subtracting tax] apply with necessary modifications.

(6) Subject to subsection (7), the non-earner benefit is payable during the period that the injured person suffers a complete inability to carry on a normal life.

(7) The insurer,

(a) is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life; and

(b) is not required to pay a non-earner benefit for any period before the insured person attains 16 years of age.

(4) The insurer is not required to pay a non-earner benefit,

(a) for the first 26* weeks after the onset of the complete inability to carry on a normal life;

(b) before the insured person is 16* years of age; or

(c) if the insured person is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a caregiver benefit under this Part.

(5) Sections 8 [adjustment after age 65] and 9 [entitlement arises on or after 65^th birthday] apply with necessary modifications for the purposes of determining the amount of a non-earner benefit and, in the application of those sections,

(a) the reference in the definition of “C” in subsection 8 (1) to “the weekly amount of the income replacement benefit that the person was entitled to receive immediately before the adjustment, before any deductions permitted by subsection 7 (3)” is to be read as a reference to the amount referred to in subsection (2); and

(b) the reference in clause 9 (1) (b) to “the weekly amount of the income replacement benefit otherwise determined under section 7 before any deductions permitted by subsection 7 (3)” is to be read as a reference to the amount referred to in subsection (2). O. Reg. 34/10, s. 12 (5).

[7] The earlier version of SABS allows the insurer to deduct those amounts that a plaintiff has received or is eligible to receive for loss of income at subsection 12(4) from NEBs. In the newer version, subsections 12(2) and 12(3) deduct “all other income replacement assistance” from the NEBs. While the concept of deducting payments for loss of income remains the same in both regimes, the use of the word “other” in subsections 12(3) (“less the total of all other income replacement assistance, if any”) imply that NEBs also relate to income replacement. On its face, this is a compelling argument. However, I find that the inclusion of one word leaves the treatment of NEBs ambiguous at best and does not have the express language one would expect to see if the Legislature intended to group NEBs with other income replacement benefits.

[8] The 2012 regulation also adds subsection 12(4)(c), which sets out that the insurer is not required to pay the NEB if the recipient has elected under s. 35 to receive an income replacement benefit or a caregiver benefit. This provision, while new, captures a long-standing principle of mutual exclusivity of non-earner benefits and income replacement benefits.

Section 35 / 36 – Election of income replacement, non-earner, or caregiver benefit

[9] The section allows benefit recipients to elect to receive the income replacement benefit, non-earner benefit, or caregiver benefit. The Defendants correctly note that people have never been able to claim multiple benefits even if they are eligible. The Defendants point to the new s. 36 on the “election process”, which now requires a disability certificate. They argue that this new “ongoing requirement of disability” is more consistent with a “loss of earning capacity” model, thereby making it clearer that NEBs fall into the same broad category of income loss.

1996 – Walker

2012 – accident/Cadieux

36. (1) Only one of the following benefits may be paid to a person in respect of a period of time:

37. An income replacement benefit.

38. A non-earner benefit.

39. A caregiver benefit. O. Reg. 403/96, s. 36 (1).

36(2) If a person’s application indicates that he or she may qualify for more than one of the benefits referred to in subsection (1), the insurer shall notify the person that he or she must elect within 30 days after receiving the notice which benefit he or she wishes to receive. O. Reg. 403/96, s. 36 (2).

(3) The insurer shall deliver the notice under subsection (2) within 10 business days after receiving the person’s application. O. Reg. 403/96, s. 36 (3); O. Reg. 546/05, s. 10.

35. (1) If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive. O. Reg. 34/10, s. 35 (1).

(2) If an applicant is determined to have sustained a catastrophic impairment as a result of an accident, the insurer shall, within 10 business days of the date of the determination, give a notice to the applicant advising the applicant that, despite any election previously made under subsection (1), he or she may elect, within 30 days after receiving the notice, to receive a caregiver benefit if the applicant would otherwise qualify for a caregiver benefit. O. Reg. 34/10, s. 35 (2).

(3) The applicant’s election under subsection (1) is final and can be subsequently changed only if permitted under subsection (2). O. Reg. 34/10, s. 35 (3).

36 (1) In this section and section 37,

“specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 23. O. Reg. 34/10, s. 36 (1).

(2) An applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32. O. Reg. 34/10, s. 36 (2).

(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. O. Reg. 34/10, s. 36 (3).

(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).

(5) If the insurer sends a request to the applicant under subsection 33 (1) or (2), the insurer shall, within 10 business days after the applicant complies with the request,

(a) pay the specified benefit; or

(b) give the applicant a notice described in clause (4) (b). O. Reg. 34/10, s. 36 (5).

(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice. O. Reg. 34/10, s. 36 (6).

(7) If the insurer requires the applicant to undergo an examination under section 44, the insurer shall, within 10 days after receiving the report of the examination,

(a) give a copy of the report to the applicant and to the person who completed the disability certificate submitted with the application; and

(b) provide the applicant with a notice indicating the amount, if any, that the insurer agrees to pay in respect of the specified benefit, the amount, if any, the insurer refuses to pay in respect of the specified benefit and the medical and any other reasons for the insurer’s decision. O. Reg. 34/10, s. 36 (7).

(8) Within 10 business days after delivering the notice under clause (7) (b), the insurer shall pay the amount, if any, that the insurer agrees to pay in respect of the specified benefit. O. Reg. 34/10, s. 36 (8).

(9) Every income replacement benefit, non-earner benefit or caregiver benefit shall be paid at least once every second week, subject to any prepayment of the benefit by the insurer. O. Reg. 34/10, s. 36 (9).

[10] Due to this expansion to the election process and the more rigid requirements to obtain NEBs, the Defendants revisit the issue already put to rest by Laskin, J.A. in Demers v. Monty, 2012 ONCA 384, 292 O.A.C. 164, that there is a difference between income loss and loss of earning capacity. They argue that while the income replacement benefit provides payment for “loss of income”, NEBs provide payment for “loss of earning capacity”. Both fall within the broad income loss silo identified in Cadieux and are deductible from Ms. Kolapully’s damage award for past loss of income pursuant to section 267.8 of the Insurance Act.

[11] I am not persuaded that the more rigid election process changes the nature of NEBs nor what Laskin J.A. concluded in addressing similar arguments in relation to the deduction of CPP payments which are now codified deductions in the SABS. In Demers, Laskin J.A. explains at para. 40 that an award for a “loss of earning capacity” compensates for “an actual pecuniary loss.” At paras. 37-39, the court considers the difference between “income loss” and “loss of earning capacity”, citing Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Scarborough, Ontario: Carswell, 1996) at pp. 138-139 and 214:

And if there were real substance to the terminological debate, something significant could have been made of it in Ratych v. Bloomer on the issue of the deductibility of collateral benefits, but nothing was: the basic principle is that damages for lost working capacity are reduced by actual benefits received -- indicating that the notion of a "capacity" and "actual moneys" are considered in parmi materia. If anything, the judgments of both McLachlin and Cory JJ. in Ratych suggest that "loss of earnings" or "loss of income" is the preferable terminology. They support the notion that the award is being made for the loss of a stream of income rather than an abstract "capacity". (Footnotes omitted)

All this, however, is terminology. And the terminology, as between "loss of earnings" and "loss of earning capacity" is used "quite indiscriminately, as if nothing would depend on their choice". [Emphasis added].

[12] The expansion noted by the Defendants does not alter Justice Laskin’s analysis and conclusion that there is no meaningful difference between income loss and loss of earning capacity.

B. The reference to Bannon in Walker does not nullify the Court of Appeal’s characterization of NEBs

[13] As I have already noted, the difference between Walker and Cadieux is that Walker relies in the “strict matching” or “apples to apples” approach in Bannon which is no longer good law. The Court of Appeal rejected Bannon in El-Khodr v. Lackie, 2017 ONCA 716, 139 O.R. (3d) 659, at para. 54:

In my view, the policy rationale supporting the strict matching requirement in Bannon no longer applies, given these amendments to the statutory scheme. The concern that the court had in Bannon regarding the uncertainty of future payment of SABs simply does not arise under the current legislation. Courts are no longer required to calculate the present value of the future benefits to which a plaintiff would be entitled and to deduct that amount from the damage onward. The potential unfairness of this requirement, in my view, was the overriding concern and the rationale that originally drove the strict approach to deductibility under the legislative regime that this court addressed in Bannon.

[14] The Defendants argue that, because Walker relied in part on Bannon, Walker is also not good law. But the Plaintiffs correctly note that the trial judge in Walker did not only consider Bannon. The trial judge (and the Court of Appeal) considered the benefit itself: Walker, at paras. 78–84. The Court of Appeal’s analysis is based on the eligibility requirements for NEBs and the activities that are impacted by the accident. That logic remains, even though Bannon is no longer good law.

C. The fact that non-earner benefits have some commonality with income related benefits was considered in Walker

[15] The Defendants argue that NEBs are like income: they are payable between the ages of 16 and 65, they are reduced by income that is earned while on the benefit and by all other income replacement benefits, and the recipient cannot receive both. These same arguments were before the court in Walker, as described at para. 78. The changes to the SABS do not bolster the Defendants’ arguments.

D. The court is not bound by Cadieux’s obiter comment

[16] The Defendants argue that the classification in Cadieux—of NEBs being in the same “silo” as income replacement benefits—is significant. The problem with this argument is that it would require holding that Walker is no longer good law, based on a comment made in obiter. Cadieux is not about NEBs; it decided the issue of deductibility of medical and rehabilitation benefits from the jury award for health care expenses. The Defendants agree that the comment was made in obiter.

[17] The statement is found at para. 12 of Cadieux:

There are three broad categories of SABs under the Insurance Act and the Statutory Accident Benefits Schedule, O. Reg. 34/10. These were referred to in El-Khodr as silos. The first category provides income replacement benefits or, if the person was not employed at the time of the accident, ‘non-earner’ benefits, or ‘caregiver benefits’, if they provided caregiver services to another person at the time of the accident.

[18] When deciding if passages in obiter are binding, a trial judge should consider what the case “actually decides.” Binnie J, for a unanimous Supreme Court of Canada, explained this process in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 at para. 57:

All obiter comments do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding”. (See also R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401, at paras. 19–20.)

[19] I consider the Court of Appeal’s comments in Cadieux to be in the latter category of commentary that might be helpful or persuasive, but so far removed from its ratio that I am not bound by the court’s comment. Cadieux deals with different issues and does not consider NEBs, whereas Walker deals explicitly with the deductibility of NEBs. The issues considered by the Court of Appeal in Cadieux were:

1. Whether the trial judge had erred by deducting the SABS received for both medical and rehabilitation benefits and the attendant care benefits from the jury award for health care expenses;

2. Whether past and future SABs should be combined in each silo before deducting them;

3. Whether the final defendant (who had not settled) could deduct the full amount of the benefits;

4. Whether the full amount of the benefit had to be deducted, or whether the deduction could be net of the plaintiff’s legal costs in reaching the settlement; and

5. Whether SABS paid to third parties should not be deducted from the tort award.

[20] On the other hand, Walker explicitly deals with the question of NEB deductibility. It considered the arguments raised by the defendants in this case and rejected them. The Court of Appeal has taken the Walker approach in other decisions like Basandra v. Sforza, 2016 ONCA 251, 130 O.R. (3d) 466 at para. 21 and Heath v Economical Mutual Insurance Company, 2009 ONCA 391. The also aligns with NEB benefit eligibility as understood at the tribunal level—the benefit compensates for a loss of activities that relate to things that go beyond employment. For example:

In S.B. v. Aviva General Insurance Company, 2021 2055 (Ont. L.A.T.) (), the applicant was granted NEBs based on his inability to participate in his pre-accident activities, including those activities that were important to him: camping, hunting, fishing, caring for his grandchildren, and volunteering.

In Fahritdinov v. Aviva General Insurance, 2021 97250 (Ont. L.A.T.) (), the tribunal would have considered “certain activities like working, attending ELS classes, boxing, running, exercise at the gym, and lifting or other tasks that involve overhead reaching”, but the applicant did not provide evidence to support those claims.

In C.C. v. Erie Mutual Insurance Company, 2020 12735 (Ont. L.A.T.) (), the licence appeal tribunal found that the applicant was not entitled to NEBs, considering that her activities included “living on her own, taking her dog for walks, driving, watching her nephew, cleaning, as well as being social with friends.” The applicant had not properly shown that the accident-related impairments interfered with those pre-accident activities.

In M.B. v. TD Insurance Meloche Monnex, 2019 83903 (Ont. L.A.T.) (), the applicant was denied NEBs because he remained able to drive his spouse to work every day, attend to the shopping and virtually all housekeeping tasks except for carrying heavy items. He continued to engage in game nights, coached and mentored junior sledge hocky players and participates in choir practice and performances.

[21] Finally, it is important to recognize that the Court of Appeal made its obiter statement in Cadieux only once citing El-Khodr for this “silo” approach. But in El-Khodr, NEBs are not included in either paragraph that describes the silos: see paras. 33 and 84. Further, later in the Cadieux decision, at paras. 22 and 39, the Court describes the silos and does not include NEBs.

[22] In sum, Cadieux may have at one point included NEBs in the same silo as income replacement benefits but at all later points and in the cases relied upon, NEBs are not included or discussed. On the other hand, the robust analysis of the nature of NEBs in Walker is strengthened by multiple Court of Appeals decisions relying on the same principles. I do not think that the Court of Appeal intended to overturn this breadth of jurisprudence with one comment in a case that was not about NEB deductibility.

[23] For these reasons, I decline to be bound by the obiter comment in Cadieux and find that I am bound by the Court of Appeal’s analysis of NEBs in Walker.

Conclusion:

[24] I dismiss the Defendants’ motion. Notwithstanding Cadieux, non-earner benefits do not fall into the income loss silo such that they ought to be deducted from Ms. Kolapully’s tort award for past income loss as contemplated in section 267.8 of the Insurance Act.

[25] Costs of this motion shall be addressed in the larger costs hearing which the parties may schedule through my assistant Roxanne.Johnson@ontario.ca.

Justice P.T. Sugunasiri

Released: 2022-10-24

COURT FILE NO.: CV-13-494077

DATE: 2022-10-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHOBA KOLAPULLY

Plaintiffs

– and –

LYNDA MYLES and TORONTO TRANSIT COMMISSION

Defendants

REASONS FOR DECISION

P.T. Sugunasiri J.

Released: 2022-10-24