The plaintiff was injured in the course of his employment and sued a number of defendants. He received LTD benefits. The defendants brought a pre-trial motion regarding the deductibility of LTD benefits from any damages for income loss awarded by the jury. Justice Corthorn held that because the LTD provider had a right of subrogation (whether in equity or contract), the defendants were not entitled to a deduction for the LTD paid to the plaintiff. This followed the law as set out in the 1994 Supreme Court decision in Cunningham v. Wheeler. Justice Corthorn held that the subsequent Supreme Court decision in IBM Canada Ltd. v. Waterman did not change the law on determining whether LTD benefits were deductible from an income loss award.
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