The Ontario Court of Appeal recently revisited the issue of the
deductibility of no-fault accident benefits from an award for tort
damages. In Basandra v. Sforza, 2016 ONCA 251, the
Plaintiff brought an action for damages arising from injuries he
sustained in a car accident. Before the trial of the tort action,
he settled his accident benefits claim for the following
* $81,658.67 for all medical/rehabilitation benefits,
* $58,271.76 for all attendant care benefits, and
* $6,939.84 for all housekeeping claims.
The settlement did not allocate between past and future
At trial, counsel for both parties agreed to the jury questions,
which the trial judge accepted. The jury was not asked to
structure its award in a way that reflected the reduction for
collateral benefits. Rather, the jury questions lumped damages for
medical/rehabilitation, attendant care, and housekeeping together.
The jury awarded:
* general damages of $137,000;
* past "care, medical/rehabilitation and housekeeping"
* future "care, medical/rehabilitation and
housekeeping" of $50,000; and
* past loss of income of $45,000.
The trial judge noted that the defence bears the onus of
establishing that the deduction of collateral benefits should
occur. The trail judge concluded that the collateral benefits
received exceeded the jury's award for the three heads of
damages. Accordingly, the trial judge reduced the jury's award
for past care, medical/rehabilitation and housekeeping, as well as
future care, medical/rehabilitation and housekeeping, to zero.
The issue for the appellate court was whether the trial judge
erred by reducing the jury's award of $105,000 for past and
future attendant care, medical/rehabilitation and housekeeping
costs to $0, in the absence of clear evidence about the quantum of
each collateral benefit?
Justice Lauwers, speaking for the Court of Appeal, held that the
trial judge did not err. He observed that s. 267.8 of the
Insurance Act mandates that pecuniary damages awarded in a
tort action "shall be
reduced" by payments the plaintiff received
for statutory accident benefits. He added that section 267.8
creates several categories of benefits that must be taken into
account as possible reductions from a jury award, including health
care expenses and other pecuniary losses such as housekeeping
costs. He noted that an award can only be reduced by a
corresponding statutory accident benefit, on a benefit-by-benefit
basis, meaning an award for housekeeping can be reduced by a
housekeeping benefit, but not by a medical/rehabilitation
Justice Lauwers added that for the statutory system to operate
properly, "counsel must ensure that any settlement of a
statutory accident benefit claim allocates the settlement funds
among the heads of collateral benefits applicable in the instant
case". He further noted that counsel has a responsibility
to ensure that the trial judge can perform his or her role, which
includes reducing an award to account for collateral benefits as
required by s. 267 of the Insurance Act. In this case,
Justice Lauwers reasoned that the trial judge was content that the
plaintiff was fully compensated for all heads of damages, even
though they were lumped, adding that the Plaintiff received about
$40,000 more than the jury awarded for those benefits. He concluded
that the trial judge's decision respected both the policy of
full compensation, and the objective of avoiding overcompensation
or double recovery.
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