Category: Deducting IRBs

Ferreira v. Hopper, 2024 ONSC 5385

This action arose from a motor vehicle accident. Following a trial on damages the jury rendered a verdict with the following awards:

  • Non-pecuniary general damages : $25,000
  • Past loss of income : $100,000
  • Future loss of income : $0
  • Future medical and rehabilitation: $4,000
  • Future housekeeping expenses : $0
  • TOTAL DAMAGES : $129,000

The plaintiff received a Canada Emergency Response Benefit (CERB) and a Canada Recovery Benefit (CRB) after the accident and before trial. In order to calculate the final award, the parties brought a motion for directions as to whether these benefits are deductible pursuant to s. 267.8(1)2 of the Insurance Act.

The key issue was whether the payments were “in respect of the incident”. The plaintiff submitted they were not (and therefore are not deductible) and the defendant submitted they were (and therefore are deductible).

Justice ten Cate held that the total amount of the CERB and CRB benefits received by the plaintiff is deductible from the jury’s award for past loss of income ($100,000). Justice ten Cate noted that at no point during trial did the plaintiff concede that any portion of his absence from work was due to any reason other than his inability to work because of the accident Given this evidence he could not reframe his theory of income loss post-verdict to avoid deductions.

Cobb v. Long Estate, 2017 ONCA 717

The Ontario Court of Appeal held that the January 1, 2015 amendment to s. 258.3(8.1) of the Insurance Act, which reduced the default rate of prejudgment intrest for non-pecuniary losses for bodily injury or death arising from the use or operation of an automible from five percent to the bank rate at the time the proceeding was commenced, became effective the day it came into force and applies to all initiated actions. The Court of Appeal found that the amendment to s.5.1(1) of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96, which increased the statutory deductible from $30,000.00 to $36,540.00, was intended to be retrospective and apply to all actions. The Court of Appeal also held that all IRBs and all payments in settlement of claims for IRBs received by a Plaintiff before trial were to be deducted from the total of all damages awarded at trial for past and future income loss arising from the same incident. Further, the Court of Appeal found that that tort defendant was also entitled to deduct housekeeping accident benefits from an award at trial for past and future housekeeping damages.