July 28, 2014

SABS Update – Apples From Apples, Oranges From Oranges: Deducting Accident Benefits From A Tort Award

For the week of July 28 to August 1, 2014

Gilbert v. South, [2014] O.J. No. 2866, Justice Ian Leach.

In Gilbert, the Plaintiff was injured in a MVC on April 27, 2010. At trial, the jury awarded future care cost damages in the amount of $57,250. The defendant sought an order requiring the plaintiff to hold “certain future statutory accident benefits” in trust for the defendant, an order requiring the plaintiff to pay such money to the defendant as requested or an order assigning the defendant the plaintiff’s right to those benefits, pursuant to sections 267.8(9), (10) and (12) of the Insurance Act.

Justice Leach reiterated the general principles relevant to the application of s.267.8. Concern about double recovery must be balanced against the concern a plaintiff should receive full compensation and not recover less than they are entitled:

Statutory provisions of this nature therefore are strictly interpreted and applied. In particular:deductions from a plaintiff’s damage award to prevent double recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, and that the plaintiff received compensation for the same benefits in the tort judgment, (as “apples should be deducted from apples, and oranges from oranges”). Evidence of “likelihood” and “probability” in that regard is not enough to warrant a deduction. Rather, a “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established. If there is uncertainty as to a plaintiff’s receipt of such benefits, the value of the benefits entitlement, and/or the extent (if any) to which recovered tort damages relate to the same type of expense covered by the benefits received, matters are not “beyond dispute” in the sense required for a deduction, and no deduction should be made.

Justice Leach denied the defendant’s motion. He noted there was no attempt made by the defendant to quantify, “with any sort of precision, the scope of the relief effectively requested”. Gilbert’s entitlement to future benefits was not “patently clear”. While the amount of benefits received to date was known, there was no indication as to whether he would receive further benefits, or the nature and extent of such benefits.

Given the wording of the verdict, there was no way to determine the extent to which the jury award related to the same benefits Gilbert was entitled to receive through SABS. Gilbert was awarded $57,250 for “all future care costs from this date forward”. At the same time, his entitlement to medical/rehabilitation benefits ends once he reaches 10 years post-MVC or $100,000.00, whichever comes first. There was no way to know whether any of the $57,250 corresponded to the time period during which Gilbert may be entitled to medical/rehabilitation benefits. As such, there was no way to ensure “any effective deduction from the plaintiff’s award of damages would not leave him with less than the full compensation to which he is entitled”.

In addition, as the jury award did not allocate between the various categories of future care expenditures, and some categories of future care expenditures are not covered by the SABS, there was no way to determine the extent to which the jury award was intended to cover aspects of future care expenditures not covered by the SABS. Again, “a deduction from his damages of all such benefits, without any such qualitative distinctions, therefore once again would run the risk of Gilbert receiving less than the full compensation to which he is entitled.”

IMPLICATIONS

Ambiguity will be resolved in favour of the plaintiff. The goal of preventing double recovery must be balanced against the concern that a plaintiff should receive full compensation and not recover less than that to which they are entitled.

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