Case: El-Khodr v. Lackie, 2017 ONCA 716

Keywords: Catastrophic Impairment; Prejudgment Interest; Ontario Drug Benefit Program; SABs


Mr. Kossay El Khodr is “catastrophically” impaired when his tow truck is rear-ended. After a four week trial jury awards damages in the following amounts (para. 3):

General Damages: $225,000
Past Loss of Income: $220,434
Future Loss of Income: $395,593
Future Care Costs:
Attendant Care Costs/Assisted Living: $1,450,000
Professional Services (Physiotherapy, Psychology, etc): $424,550
Housekeeping and Home Maintenance: $133,000
Medication and Assistive Devices: $82,429
Total $2,931,006

Plaintiff is paid the full amount awarded by the jury. The subject matter of the appeal is a series of rulings during and after the trial. The Court of Appeal allows the Appellants’ appeal, amends the Trial Judge’s order.


Amending the Prejudgment Interest Award

The Court of Appeal concluded as follows:

  • the Jan. 1, 2015 amendment to s.258.3 (8.1) of the Insurance Act applied to “all actions then in the system, [applying] to causes of action that had already arisen but not yet been tried”;
  • the default interest rate is 2.5%, not 5%, which reduces the interest owed by

$44, 583.90. (paras. 6-7)

Is the Respondent required to assign future income replacement benefit (from the SABs’ insurer) to age 60 or 64?

Age 64 (paras. 8-18)

Whether the existence of the Ont. Drug Benefit Plan should be treated as a “contingency” only (rather than as a certainty)

Here the jury was instructed to treat drug benefits as a contingency. The Court of Appeal said:

  • the SABs insurer “will not be obligated to make any payment…beyond the age of 65 in relation to drugs”;
  • the liability insurer, “will receive no corresponding reduction by way of assignment or trust”. (para. 23).

The C.A. went on to note (in a footnote) that any prejudice to the liability insurer is “negligible”, about $4K.

Whether future SABs payments re medication, assistive devices and professional services should be assigned

The Court of Appeal referenced the relevant provisions of the Insurance Act on assignment/trust of SABs received post-trial, and wrote:

  • Bannon v. McNeely, 1998 CanLII 4486 (ON CA) “may no longer be good law” (para. 36);
  • queried “whether Gilbert [Gilbert v. South 2015 ONCA 72] should apply to prevent the assignment of benefits” (para. 36)
  • “because…the strict matching approach set out in Gilbert does not apply to the particular facts of this case… the specific question as to whether Bannon and Gilbert remains good law [is left] for another day” (para. 37).

The Court of Appeal applied the Basandra v. Sforza 2016 ONCA 251 case, which case came out a year after the jury’s verdict herein (April 6, 2016 and April 30, 2015 respectively).

For the Court’s discussion on this subject, see paras. 24-80.


The court concluded with some general advice for plaintiff-side lawyers (paras. 84-86):

  • “Future plaintiffs in motor vehicle accident cases should minimize trial courts’ difficulty in matching damages and statutory benefits by presenting their claims according to the categories in s. 267.8 of the Insurance Act: they should make a claim for past and future income losses, a claim for past and future health care expenses; a claim for other past and future pecuniary losses that have SABs coverage; and a separate claim for any past and future pecuniary losses that lack SABs coverage.”
  • “In cases involving non-catastrophic injuries, the presentation of the claim should account for the monetary limits and temporal limitations on benefits compensating for such injuries.”
  • “Plaintiffs should be required to present their cases in this way. They alone know best what amounts they have expended in relation to their injuries that their SABs insurer did not or will not reimburse. If those items are separately categorized, the matching difficulties disappear – as does any risk of over or under-compensation.”
  • “A plaintiff should not be permitted to avoid having SABs deducted from a tort award and thereby defeating the purpose of the legislation by lumping together claims covered by SABs with those which are not.”

Three Important Notes:

  1. Full disclosure — the Trial Judge is my spouse.
  2. See also the companion Court of Appeal decision in Cobb v. Long Estate, 2017 ONCA 717 (counsel in that case were Chris Palaire and Tina Lie as well as Allan Rouben and Kris Bonn).
  3. No decision yet as to any further appeal in either case; the decisions only came down two days ago; deadline for leave to appeal to the Supreme Court of Canada is Monday, Nov. 20, 2017.

Counsel for the Appellants: Barry Percival, Q.C. and James Gibson (Benson Percival Brown LLP, Toronto)

Counsel for the Respondent: Joseph Obagi and Elizabeth Quigley (Connolly Obagi LLP, Ottawa)

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