Category: Deductions

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.

Antony v. Kumarasamy, 2022 ONSC 6619

Less than a month before a scheduled trial, the plaintiff in an MVA personal injury action accepted an offer to settle from the statutory third party for $85,000 plus interest, disbursements, and costs to be agreed upon or assessed. The parties were unable to agree on costs and the plaintiff brought a motion for a determination by the court. One issue was whether the plaintiff was entitled to recover costs associated with two AB arbitrations and a CPP dispute. Justice Ramsay held that neither the AB nor the CPP costs were recoverable. While costs could be recovered for AB-related arbitrations, the plaintiff failed to provide evidence supporting any of the factors set out by the Court of Appeal in Cadieux. Justice Ramsay also found that the recovery of more than $1 million in SABS interest was a factor weighing against requiring the statutory third party in the MVA tort action to pay for AB-related costs.

With respect to the CPP dispute, Justice Ramsay held that CPP litigation costs are not recoverable in a MVA tort action because the Insurance Act does not impose any statutory requirement on the plaintiff to apply for or dispute CPP benefits.

Sean Omar Henry v. Dr. Marshall Zaitlen, 2022 ONSC 2718

The defendant physician was found negligent by a jury. The plaintiff was awarded damages, which included damages for past loss of income. The defendant brought a motion to deduct the LTD and pension contribution benefits the plaintiff had received, from the award of damages for past loss of income. Justice Sanfilippo dismissed the motion, holding that the benefits could not be deducted because the provider had a right of subrogation right under the contract. He held that it was irrelevant that the provider was unlikely to pursue subrogation. In the circumstances where the contract provided for a subrogation right, the deduction was not permitted.

Finnemore v Hyde, 2021 ONSC 19

The plaintiff was injured in a motor vehicle accident. He took early retirement under his union pension plan, and began receiving benefits at age 58 (rather than 65). The plan entitled a person of age 55 or older to take early retirement if he or she became totally and permanent disabled. The defendant asserted that it was permitted to deduct the early pension benefits from the income loss claim. The plaintiff argued that the payments did not fall within the type of deductible benefit contemplated in s. 267 of the Insurance Act. The defendants brought a motion for a determination on deductibility. Justice Nicholson considered that the plaintiff had paid into the pension plan during his working years, and agreed with the plaintiff that the defendants were seeking to deduct payments made from the plaintiff’s own property – his vested pension plan. The court held that the benefits were not deductible, and dismissed the defendant’s motion.

A.B. v. Waite, 2018 ONSC 2151

The jury awarded the Plaintiff $42,250.00 for pain and suffering which was reduced to $4,266.67. Justice MacLeod also awarded 4% interest because of the delay in the trial occurring. The jury awarded $76,121.00 for past income loss which was reduced to $0 after deductions for accident benefits and LTD benefits were considered. Justice MacLeod noted that this was a “disastrous outcome for the Plaintiff” which “illustrated the legislative intention that all but the most significant tort claims should be eliminated and injured motorists be largely confined to claiming no fault benefits under their own insurance policies”.

Grieves v. Parsons, 2018 ONSC 1905

The jury found that the Plaintiff was entitled to $61,000.00 for past loss of income and $90,000.00 for future loss of income/loss of competitive advantage. Six months before the trial, the Defendants made a Rule 49 offer of $70,000.00, inclusive of all claims and PJI, plus partial indemnity fees up to the date of the offer. The Defendants submitted that adverse cost consequences should apply to the Plaintiff following the date of the offer to settle, as after certain deductions, the awards for past and future loss of income were less than the offer. Justice Charney concluded that, after deductions, the Plaintiff was entitled to recover $72,317.00, just barely beating the Defendants’ Rule 49 offer. As such, the cost consequences of Rule 49 did not apply and the Plaintiff was entitled to his costs of $115,000.00, as well as $50,000.00 for disbursements.