Following a four week jury trial, Justice Belch heard the
plaintiff's motion to settle terms of Judgment. The jury
awarded $220,000 for all claims including $50,000 for past wage
loss and $100,000 for future economic loss.
After deducting collateral benefits and the statutory deductible
as well as the "appropriate rate of pre-judgment
interest", the defence argued that only $19,310 was owing. The
plaintiff argued $157,612 was owing. The two main issues were the
deductibility of the accident benefits settlement and the correct
Does a Settlement Disclosure Notice sufficiently differentiate
heads of damages for the purpose of tort deductions even if the
Release indicates a lump sum?
The AB claims settled previously for the global amount of
$152,000. Of this amount $132,000 was allocated to past, present
and future income replacement benefits, $20,000 for medical
benefits and $2,000 for costs. It was acknowledged that $29,300 had
already been paid in IRB prior to the settlement.
The tort defendant argued that it is entitled to the deduction
of the IRB settlement and payments which would have wiped out the
The plaintiff stated that the Release indicated a global amount
which took into consideration a claim for all ABs and bad faith,
unlike the Settlement Disclosure Notice. The plaintiff argued that
since the amount was undifferentiated in the Release, it could not
be deducted from the jury award at all. (The plaintiff conceded
that the tort defendant could get $29,300.)
Justice Belch held that the defendant was entitled to the entire
amount deducted: the SDN clearly showed an amount allocated for
IRB. This being the case, the tort defendant was entitled to the
Result: the Settlement Disclosure Notice clearly differentiates
the heads of damages for the purpose of collateral deductions for
the tort defendant.
- On the other issue of the statutory deductible, the court
found recent changes allowing for the indexing of the deductible
was substantive and therefore did not apply to accidents before
August 1, 2015.
Does the indexed statutory deductible (s. 267.5(7) of the
Insurance Act) apply to accidents pre-August 1, 2015?
The plaintiff cited El Khodr v. Lacki, 2015
ONSC 4766 which set the deductible at $30,000 and Wong v.
Lee, 2002 CarswellOnt 742 (C.A.) which held that the
deductible was a matter of substantive law and therefor the
indexation ought not to apply to accidents pre-dating August 1,
The defence argued that the intent of the legislature was clear
and unequivocal: if the plaintiff was to be paid an amount after
August 1, 2015, then the amount has to take into consideration the
law on the date of the payment.
The court agreed with the plaintiff that the deductible was
substantive and should not apply retrospectively.
Result: The indexed statutory deductible does not apply to
accidents that occurred prior to August 1, 2015.
Finally we note an interesting ruling regarding pre-judgment
interest. Noting that El-Khodr is under appeal, the court
preferred to wait until the Court of Appeal delivered its reasons.
However, Justice Belch advised that he retired on October 15 and as
such he felt compelled to rule on the issue. Using a Solomon like
approach, he essentially split the PJI between the 0.5% requested
by the defendant and 5% demanded by the plaintiff to arrive at
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