Introduction
In September 2024, the Ontario Superior Court of Justice released the motion decision of Ferreira v. Hopper, 2024 ONSC 5385. The decision provides that the Canada Emergency Response Benefit (CERB) and the Canada Recovery Benefit (CRB) received by a plaintiff is to be deducted from their past income loss award pursuant to section 267.8(1)2 of the Insurance Act, R.S.O. 1990, c.I.8.
Facts
The plaintiff in this action suffered soft tissue injuries to his neck, mid and low back in a motor vehicle collision on October 24, 2017.
He remained off work following the collision until September of 2019 when he attempted to return to work for approximately two months. He subsequently went off work again for a period of time, from November 2019 until May of 2022, and was continuing to work at the time of trial.
During his time off work in 2020, the plaintiff received $14,000 for CERB payments and $5,000 for CRB payments. In 2021, he received a total of $19,600 in CRB payments.
Liability for this motor vehicle collision was admitted prior to trial and a jury trial proceeded only with respect to the plaintiff’s damages. Following the trial, and while the jury deliberated, the parties brought this motion for direction on the deductibility of CERB and CRB from any damages awarded for the plaintiff’s past income loss.
Shortly before the motion disposition, the jury returned their verdict on the plaintiff’s damages, which included a $100,000 award for his past loss of income.
Analysis
The starting place for the Court’s analysis was the rule against “double recovery” and section 267.8 of the Insurance Act which provides the legislative basis for deducting certain collateral benefits from a plaintiff’s damages for income loss as a result of a motor vehicle collision.
The relevant portion of section 267.8(1) of the Insurance Act, more specifically provides that:
267.8 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
…
2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
To establish that CERB and CRB payments are deductible, they must be considered payments “for income loss or loss of earning capacity” and payments that are “in respect of the incident” (being the motor vehicle collision).
Both parties agreed that CERB and CRB were intended to be income replacement and therefore the payments were “for income loss or loss of earning capacity.” However, the plaintiff’s position was that they were not payments made in respect of the collision and therefore they were not deductible from any damages awarded to him for his past income loss.
Several decisions were relied upon by the plaintiff in argument wherein CERB was held not to be deductible. However, Justice E. ten Cate found these decisions to be unhelpful on the issue and not binding as they were either decided outside of the motor vehicle context[1]; did not specifically interpret the Insurance Act in Ontario[2]; or involved deductibility from income replacement benefits under the Statutory Accident Benefits Schedule[3]. Another decision was relied upon by the plaintiff by analogy wherein Ontario Works and Ontario Disability Support Program payments were held not to be deductible from an award for income loss. However, it was distinguished by Justice E. ten Cate on the basis that the plaintiff in that decision had received those benefits as a result of a separate disabling condition, for example, HIV, as opposed to injuries sustained in their motor vehicle collision.[4]
In conclusion, there were no decisions directly on point on this issue in Ontario.
Justice E. ten Cate reviewed both the purpose and eligibility criteria for CERB and CRB, explaining that these benefits provided financial support to employed and self-employed Canadians who were financially affected by the COVID-19 pandemic. To be eligible for these benefits, the plaintiff must have shown that he experienced a financial loss directly due to COVID-19 as opposed to any other reason, including the motor vehicle collision. He must have been otherwise able to work during the period for which CERB and CRB were available.
The plaintiff’s evidence at trial was that his absence from work was solely due to the motor vehicle collision. He never conceded that any portion of it was due to any other reason. It was stated that, he could not reframe his theory of income loss post-verdict to avoid deductions.
Conclusion
The total amount of the CERB and CRB received by the plaintiff was deductible from the jury’s award of $100,000 for his past loss of income.
[1] Fogelman v. IFG, 2021 ONSC 4042
[2] Balint v. Lewandowski, 2021 BCSC 1316
