Carroll v. McEwen, 2018 ONCA 902

The plaintiff was struck by a motor vehicle as a pedestrian. The plaintiff sued the driver and owner of the vehicle that struck her, as well as her own auto insurer pursuant to an OPCF44 endorsement and the underinsured motorist provisions of the Insurance Act. The jury awarded the plaintiff a lump sum award of over $2.2 million for future care costs. The trial judge issued a conditional order that if the defendants paid the judgment in full, they would receive an assignment of future medical/rehabilitation and attendant care SABs received by the plaintiff from her no-fault insurer. The plaintiff appealed the conditional assignment order, taking the position that it violated the strict “apples to apples” matching principles set out in earlier case law. The Court of Appeal dismissed the plaintiff’s appeal, rejecting a strict matching of specific SABs and tort damages. The Court held that the “silo” approach adopted in Cadieux v. Cloutier, 2018 ONCA 903 applies equally to the assignment of future SABs.