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.