This is a post-verdict motion dealing with, among other issues, the assignment of future SABs which the plaintiff may be entitled.
Date Heard: January 3, 2018 | Full Decision [PDF]
Contextual History
These two actions arise out of motor vehicle accidents that occurred on May 3, 2007 and October 1, 2013. The Plaintiff was wholly successful at Trial on both claims by verdict dated May 11, 2017. Counsel appeared before P.R. Sweeny J., on June 23, and October 19, 2017 to make additional submissions post-verdict.
Issue
Among others, whether there should be an assignment of future SABs which this Plaintiff may be entitled?
Brief Answer
No. The Defendant is not entitled to a declaration that this Plaintiff hold any SABs she receives in trust for the defendant and is not entitled to an assignment of any future benefits.
Analysis
The Defendant Livska argues, at para [25], that the Plaintiff has been awarded $250,000.00 for future medical and rehabilitation benefits and therefore an assignment should be granted to her. The Defendant further argues that the issue of assignment crystallizes not when the expenses were incurred, but when the amount is actually paid; asserting that they are owed a credit for any amounts paid by the SABs insurer.
The Plaintiff argues at para [26], that she has incurred pre-trial medical expenses of $56,359.44, which the Plaintiff sought to recover from her SABs carrier, and did not claim same at trial. They are expenses incurred prior to May 11, 2017 (date of verdict) and ought not to be assigned. Additionally, that if payment is received for these benefits, they are not benefits which must be held in trust pursuant s. 267.8(9) and paid out pursuant s. 267.8(10).
With respect to this issue, P.R. Sweeny J., found that the expenses ought to be excluded.
These were not included in the claim resolved prior to an arbitration hearing on January 27, 2017. These issues were never pursued and the jury did not consider them in any award for past or future medical treatment. The plaintiff’s claims for these prior treatments are separate and apart from her claim for future benefits. Therefore, any future SABs for which the defendant seeks credit must be for services provided subsequent to May 11, 2017. If any amounts are paid for services provided prior to that time, the defendant does not get a deduction for those amounts and that amount is not to be held in trust pursuant to s. 287.8(9).
With respect to the assignment of future benefits, the Plaintiff further argued that the specific questions posed to the jury lead to uncertainty as to the benefits the Plaintiff will recover. The Plaintiff relies on the Court of Appeal’s decision in Gilbert v. South, 2015 ONCA 712 to assert that the trier of fact exercise discretion in the assignment of benefits.
Citing the Court of Appeal in Gilbert, P.R. Sweeny J., took note of the following principles at para [43]-[44]:
The provisions assume that the plaintiff has obtained, through the litigation, damages covering the same loss otherwise covered by the collateral benefits . . .
However, concern to ensure mandated prevention of such double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he or she is entitled; i.e., by being subjected unfairly to deductions based on collateral benefit entitlements that are in doubt and/or which may not truly overlap with sums recovered in a tort judgment.
If there is uncertainty as to a plaintiff’s receipt of such benefits, the value of the benefits entitlement, and/or the extent (if any) to which recovered tort damages relate to the same type of expense covered by the benefits received, matters are not ‘beyond dispute’ in the sense required for a deduction, and no deduction should be made.
The jury’s award mirrors the collateral benefit sought to be assigned. In the words of Finlayson J.A. in Bannon v. Hagerman Estate (1998), 1998 CanLII 4486 (ON CA), 38 O.R. (3d) 659 (C.A.), at p. 679: “I believe that, where possible, any no-fault benefit deducted from a tort award under s. 267(1)(a) must be deducted from a head of damage or type of loss akin to that for which the no-fault benefits were intended to compensate. In other words, and employing the comparison of Morden J. in Cox, supra, if at all possible, apples should be deducted from apples, and oranges from oranges.
And, there is no uncertainty about the plaintiff’s entitlement to these collateral benefits. As Goudge J.A. said in Chrappa v. Ohm (1998), 1998 CanLII 893 (ON CA), 38 O.R. (3d) 651 (C.A.), at p. 657: “If there were uncertainty about the receipt of those future payments the deduction of their present value would expose the plaintiff to the possibility of an ultimate recovery less than that awarded to him.
In contrast, P.R. Sweeny J., was required to balance Bannon and Gilbert in face of the recent Court of Appeal decision in El-Khodr v. Lackie, 2017 ONCA 716, where the Court of Appeal reviewed the matching principle. In short, Gilbert was distinguished, and therefore is still good law in Ontario. The distinguishing factor was that in Gilbert, there were claims that were not covered by the SABs insurer as opposed to the fact pattern in El-Khodr.
Notwithstanding the mere potential for the ongoing claim to be declared as catastrophic, it was not at the time of the trial and accident benefit entitlements were limited. The Plaintiff sought $2,000,000.00 for future pecuniary damages as a result. For example, the $247,000.00, claimed for non-medical transportation costs and $36,000.00 claimed for medical transportation costs; are not covered.
P.R. Sweeny J., concluded at para [35] that:
This case is similar to Gilbert, in that, there is uncertainty as to whether the jury award includes some amounts for pecuniary losses which are not reimbursable under these SABs. In my view, I am bound by the decision in Gilbert. Accordingly, the defendant is not entitled to a declaration that the plaintiff hold any SABs she receives in trust for the defendant and is not entitled to an assignment of any future benefits.
Notice of Appeal
At the time of writing this article, no notice of appeal was noted as filed.
Read the full decision [PDF]