) ) ANDREW MIKOLIC Plaintiff (Respondent) – v. –, 2015 ONSC 71

CITATION : Mikolic v. Tanguay, 2016 ONSC 8196 DIVISIONAL COURT FILE NO.: 462/14 DATE: ​​​​​​​​​​​​​ 20160105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SANDERSON, SACHS JJ. BETWEEN: ) ) ANDREW MIKOLIC Plaintiff (Respondent) – and – DAVID TANGUAY, CORRIE ALBANO and AVIVA CANADA INC. Defendant (Appellant) ) ) ) ) ) ) ) ) ) ) F.J. Burns , for the Respondent Chris G. Paliare and Andrew Lokan , for the Appellant, Corrie Albano ) ) HEARD at Toronto: September 15, 2015 REASONS FOR JUDGMENT M. A.

SANDERSON J. [ 1 ] The Appellant, Corrie Albano (hereinafter “the Appellant/Defendant”), appeals from the decision of Arrell J. dated November 26, 2013, with reasons reported at Mikolic v. Tanguay , 2013 ONSC 7177 (CanLII) , in which he refused to make two deductions from the jury award that the Plaintiff/Respondent had received in his tort action. Specifically, the trial judge refused to deduct Statutory Accident Benefits (“SABS”) that the Plaintiff/Respondent had received for past and future income replacement, from the jury’s tort award from past and future income loss.

He also refused to deduct SABS that the Plaintiff/Respondent had received for past and future medical benefits from the jury’s tort award for future care costs. [ 2 ] The sole issue on this appeal is whether, in refusing to order those deductions, the trial judge erred in law in interpreting sections 267.8(1) and (4) of the Insurance Act , R.S.O. 1990, c. I.8 . The Standard of Review [ 3 ] A trial judge’s

interpretation and application of ss. 267.8(1) and (4) of the Insurance Act is a question of law, reviewable on a standard of correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at para 8 . [ 4 ] Sections 267.8 (1) and (4) of the Insurance Act provide as follows: s. 267.8 Collateral benefits Income loss and loss of earning capacity

(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: 1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity. 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.

3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment. Health care expenses

(4) 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 expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts: 1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care.

All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental hospitalization, rehabilitation or long-term care plan or law.

The Trial Judge’s Decision [ 5 ] In refusing to make the two deductions, the trial judge reasoned as follows: [15] Lump sum awards to settle law suits regarding future [income replacement benefits (“I.R.B.’s”)] or other wage continuation plans have been held not to be deductible because such payments are a compromise made to settle a legal obligation one party sought to enforce by litigation against another and therefore all outside the scope of s. 267.8(1) 2.

They cannot be considered weekly payments for loss of income in the future but rather a lump sum negotiated as a compromise to resolve the risks to both parties of the law suit. ( Tsiaprailis v. Canada 2005 SCC 8 (CanLII) , [2005] 1 S.C.R. 113; Cromwell v. Liberty Mutual Insurance Co . (2008), 2008 CanLII 3409 (ON SC) , 89 O.R. (3d) 352 (SCJ); Vanderkop v. Personal Insurance Co. of Canada, [2008] O.J. No. 1937 (SCJ) ) [16] There is no evidence before me as to what amount of the total I.R.B. settlement constitutes future payments.

As such, there is no evidence led by the defence, which has the onus, to tell me whether the plaintiff received $1.00 or $77,500.00 for future I.R.B.’s. The amount offered and accepted was a lump sum compromise by both parties to resolve the risks and costs of continuing with a law suit. It is therefore not possible for this court to be able to determine what amount, if any, should be deducted from the damages for future income loss awarded by the jury.

I would therefore make no deduction under that head of damage. [17] Likewise, there is no evidence before me as to what portion of the A.B. settlement of past and future attendance care, medical rehabilitation, or medical benefits are specifically for the future. As well, the jury award does not break down the amount under the three headings in the release signed by the plaintiff regarding the settlement of those A.B. benefits.

Under such circumstances it is impossible for this court to know whether it would be ‘ …deducting apples from apples. ’ I therefore conclude there should be no deduction from the jury’s award under the head of damage for future care costs. [18] In Hoang (Litigation guardian of) v. Trieu, D. Wilson J. held as follows: Rather, the award of the jury for future expenses was in the nature of a lump sum award without any allocation towards what category of expense the monies related to.

The jurisprudence is clear that SABS must be deducted from the “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” : Bannon v. McNeely, (1998), 1998 CanLII 4486 (ON CA) , 38 O.R. (3d) 659 (C.A.), at p. 679, citing Cox v. Carter (1976), 1976 CanLII 592 (ON SC) , 13 O.R. (2d) 717 (H. Ct. J.). ( Hoang, (Litigation guardian of) v. Trieu , 2012 ONSC 6644 (CanLII) , [2013] O.J.

No. 321 (SCJ) [ Hoang ] at para. 34 ). [Emphasis in original] Did the Trial Judge Err in Law in His

Interpretation of ss. 267.8 (1) and (4) ? [ 6 ] Counsel for the Appellant/Defendant Albano submitted that the trial judge erred in law in failing to deduct $158,495, including $77,500 paid to the Plaintiff/Respondent to settle past and future income replacement benefits from the jury’s tort award of $50,000 for loss of income, and to deduct $89,365.15, including $37,500 paid to the Plaintiff/Respondent to settle his SABS claims for past and future medical benefits from the jury’s tort award of $15,000 for further care costs.

He submitted that it did not matter that the jury had made two separate tort awards for income loss, namely $20,000 for past income loss and $30,000 for future income loss. For the purpose of determining whether it was appropriate to deduct statutory benefits for income replacement from tort awards for income loss, it was incorrect to differentiate between income replacement benefits for past income loss and income replacement benefits for future income loss.

Phrased differently, it was inappropriate to only match past income replacement benefits received before the trial against tort awards for past income loss and to only match future income replacement benefits against tort awards for future loss of income. The proper approach was to match all income replacement benefits past and future against all tort awards for loss of income. [ 7 ] Counsel for the Appellant/Defendant relied on the decision of the Supreme Court of Canada in Gurniak v. Nordquist , 2003 SCC 59 , [2003] 2 S.C.R. 652, submitting that it had overruled Bannon v.

McNeely (1998), 1998 CanLII 4486 (ON CA) , 38 O.R. (3d) 659 (C.A.), a Court of Appeal decision upon which the trial judge had indirectly relied at paragraph 18 of his reasons. In Bannon ,[ as in Hoang (Litigation guardian of) v. Vicentini , 2012 ONSC 6644 , 19 C.C.L.I. (5th) 120, a decision of the Ontario Superior Court following the reasoning in Bannon to which the trial judge referred], the Ontario Court of Appeal had held that, wherever 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 (as he then was). in Cox v. Carter (1976), 1976 CanLII 592 (ON SC) , 13 O.R. (2d) 717 (H.C.), if at all possible, apples should be deducted from apples and oranges should be deducted from oranges. [ 8 ] Counsel for the Plaintiff/Respondent submitted that the comments of the majority in the Supreme Court of Canada in Gurniak about matching generally should not be taken to apply to the matching to be done under the relevant statutory sections in the case at bar.

[ 9 ] The issue in Gurniak was whether accident benefits paid to the plaintiff under the Quebec no-fault insurance scheme were deductible from a tort damages award recovered in British Columbia.

Section 25 of the (then) Insurance (Motor Vehicle) Act , R.S.B.C. 1996, c. 231, defined “benefits” for the purpose of deductibility as including benefits paid under other plans of automobile insurance, wherever issued or in effect, as long as such “benefits” were “similar” to those provided under the British Columbia Insurance (Motor Vehicle) Act . The Supreme Court of Canada held that accident benefits paid under the Quebec Automobile Insurance Act , R.S.Q., c. A- 25 , were “similar” and were therefore deductible from the tort award.

The majority held that nothing in the language of s. 25 mandated that, before those particular benefits could be deductible from the tort award, there must be a match between the specific heads of damages under the benefits scheme and the heads of the tort damages that had been awarded. [ 10 ] In Gurniak , Gonthier J., in concurring reasons, commented that although the correctness of the matching principle had been raised by the parties in argument, and the majority had noted that the matching principle had been applied in a series of cases interpreting s. 267(1) of the Insurance Act , including Bannon , the Supreme Court had not heard any submissions on the effect of overruling the matching principle enunciated in Jang v.

Jang (1991), 1991 CanLII 2015 (BC CA) , 54 B.C.L.R. (2d) 121 (C.A.).

Gonthier J. wrote that, in his view, judicial restraint required that the Court forbear from such a course until it had the matching requirement directly before it and it had been the subject of full argument. [ 11 ] The trial judge held that, because the payments received before the trial constituted a lump sum settlement, and because they were not weekly payments for loss of income in the future, they did not constitute amounts received by the Plaintiff for statutory income replacement of future benefits and they were not deductible from a tort award for future income benefits under s. 267.8(1) (1) of the Insurance Act . [ 12 ] In reaching that conclusion, the trial judge relied on three cases that counsel for the Defendant submitted have no relevance in considering deductibility of accident benefits under ss. 267.8(1) (1) and (4) of the Insurance Act . [ 13 ] In Tsiaprailis v.

Canada , 2005 SCC 8 , [2005] 1 S.C.R. 113, the issue was whether long-term disability benefits that the plaintiff had received were taxable. At issue there, was whether certain benefits received as a lump sum payment were “payable on a periodic basis”. That statutory wording is different from the wording of s. 267.8(1) in this case.

On appeal from the Tax Court, the Federal Court of Appeal held that the portion of the payment that represented benefits arrears qualified as amounts payable on a periodic basis, but the portion of the payment that represented payments for future benefits did not fall within the statutory definition. The Supreme Court dismissed the appeal. [ 14 ] In Cromwell v. Liberty Mutual Insurance Co. (2008), 2008 CanLII 3409 (ON SC) , 89 O.R. (3d) 352 (S.C.), the plaintiff was insured for statutory accident benefits with the defendant and also was entitled to long-term disability benefits.

The plaintiff had sued the long-term disability insurer Sun Life and had settled future benefits for $160,000. On those facts, sections 47 and 7(1) of the Statutory Accident Benefits

Schedule – Accidents on or after November 1, 1996 , O. Reg. 403/96 were relevant. Section 7(1) of the Statutory Accidents Benefit

Schedule permitted deductions of net weekly payment by the insurer from income replacement benefits payable as follows: (

i) net weekly payments for loss of income that are being received by the person as a result of the accidents under the laws of any jurisdiction or under any income continuation benefit plan; and (ii) net weekly payments for loss of income that are not being received by the person but are available to the person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan, unless the person has applied to receive payments for loss of income. [ 15 ] The issue in Cromwell was whether the $160,000 that the plaintiff had received from Sun Life as a settlement representing future payments and costs qualified as “net weekly payments ” under s. 7(1).

After considering Tsiaprailis , the Ontario Superior Court held that the Sun Life lump sum representing payment of future payments for income loss and for costs could not be deducted because, at the time of settlement, the plaintiff had not been absolutely entitled to future replacement of statutory income benefits. The Court held that the $160,000 had not been received “as net weekly payments” and that it was not deductible. [ 16 ] In Vanderkop v. Personal Insurance Co. of Canada (2008), 63 C.C.L.I. (4th) 64 (Ont.

S.C.) , the issue was whether a settlement made by the plaintiff with her long-term disability insurer could be deducted from the income replacement benefit, namely whether it qualified under s. 7(1) of the Statutory Accidents Benefit

Schedule as “net weekly payments for loss of income that are being received by a person as a result of the accident”. The Ontario Superior Court held that the portion of the settlement funds allegedly paid for future income replacement did not qualify as “net weekly payments” under the regulation because, at the time of the settlement and in the absence of a settlement, the insurer was not absolutely liable to pay future income replacement benefits.

It would only have been obligated to pay income replacement benefits if and for as long as the disability persisted. [ 17 ] Counsel for the Appellant/Defendant submitted that, in the case at bar, in finding that income replacement benefits could not be considered weekly payments for loss of income in the future and thus could not be deducted, the trial judge effectively read into the language of s. 267.8(1) (1) a weekly payments requirement. He confused s. 267.8(1) (2), to which 7(1) of the Statutory Accident Benefit

Schedule did apply, with s. 267.8(1) (1), to which 7(1) did not apply. [ 18 ] Counsel for the Appellant/Defendant submitted that there is nothing in ss. 267.8(1) (1) and (4) to indicate that whether the payments are made in a lump sum, weekly, or otherwise, matters in determining the deductibility of benefits received for income loss. [ 19 ] Counsel for the Plaintiff/Respondent submitted that, in making that submission, counsel for the Defendant/Appellant missed the point that the global statutory accident benefits settlement, of $175,000 in this case, represented a lump sum compromise regarding claims for amounts to which the Plaintiff had not been absolutely entitled at the time of the settlement.

In considering the deductibility issue, the lump sum settlement should not be considered to constitute or to include “payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity”, as defined under s. 267.8(1) (1) of the Insurance Act . Tort damages to which a plaintiff is entitled for income loss and loss of earning capacity should not be reduced by amounts included in the lump sum settlement.

[ 20 ] The onus is always on the Defendant to prove that the payment clearly falls within the statutory definition and that deductibility will not result in under-compensation of the Plaintiff. [ 21 ] In Gilbert v.

South , 2014 ONSC 3485 , 120 O.R. (3d) 703, Leitch J. set out the applicable principle, at para 9: …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 which he or she is entitled, i.e. by being subjected unfairly to deductions based on collateral benefits entitlements that are in doubt and/or may not truly overlap with sums recovered in a tort judgment. Statutory provisions of this nature therefore are strictly interpreted and applied.

In particular, deductions from a plaintiff’s damage award to prevent double recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, and that the plaintiff received compensation for the same benefits in the tort judgment (as “apples should be deducted from apples and oranges from oranges”). Evidence of “likelihood” and probability in that regard is not enough to warrant a deduction.

Rather, “a very strict onus of proof” applies in relation to such matters and it must be “patently clear” that the preconditions for an appropriate deduction have been established. If there is uncertainty as to a plaintiff’s receipt of such benefits, the value of the benefits and/or the extent (if any) to which recovered tort damages relate to the same type of expense covered by the benefits received, mattes are not “beyond dispute” in the sense required for deduction, and no deduction should be made. See Chrappa v. Ohm (1998), 1998 CanLII 893 (ON CA) , 38 O.R. (3d) 651 (Ont. C.A.), at p.657; Bannon v.

Hagerman Estate (1998), 1998 CanLII 4486 (ON CA) , 38 O.R. (3d) 659 (Ont. C.A.), at p.679; Cowles v. Balac , [2005] O.J. No. 229 (Ont. S.C.J.), at paragraph 205 , affirmed 2006 CanLII 34916 (ON CA) , [2006] O.J. No. 4177 (Ont. C.A.); Moore v. Cote , [2008] O.J. No. 3541 (Ont. S.C.J.), at paragraph 9 ; and Hoang (Litigation Guardian of) v.

Vicentini , supra, at paragraphs 27-28, 36 and 45 . [ 22 ] Counsel for the Respondent/Plaintiff submitted that, before the Appellant/Defendant could have been allowed to deduct the Plaintiff/Respondent’s lump sum settlement from the jury award for future loss of income, the Defendant needed to strictly prove how much of the total settlement constituted payment for future benefits At trial, counsel for the Defendant/Appellant led no evidence to prove that the global settlement of $175,000 constituted “payments in respect of the incident that the plaintiff has received for statutory benefits in respect of income loss or lack of earning capacity”.

As a result, counsel for the Respondent/Plaintiff submitted that the trial judge was correct in holding that the Defendant had not met the onus of proving with certainty that payments to the Plaintiff on account of the global settlement of $175,000 represented “payment of monies received or available before the trial of statutory benefits in respect of income loss”.

The trial judge was correct in refusing to permit deduction of a lump sum compromise settlement possibly including future accident benefits, since at the time of the settlement the insurer had been obliged to pay future income replacement benefits only for as long as the Plaintiff had continued to be incapable of working. [ 23 ] Counsel for the Appellant/Defendant Albano submitted that the Defendant had adduced sufficient evidence at trial to come within the section.

The Defendant had proved that $158,495 had been received by the Respondent/Plaintiff before the trial on account of income replacement benefits, past and future, and that $89,365.15 had been received on account of medical rehabilitation benefits. [ 24 ] Counsel for the Appellant/Defendant Albano pointed specifically to the Settlement Disclosure Notice, dated November 25, 2010, signed by both the insurer and the Plaintiff in this case.

He submitted that the notice had made it clear that, as part of the $175,000 total SABS settlement, the insurer had offered and the Plaintiff had accepted $77,500 on account of payment of income replacement benefits, past and future. [ 25 ] Counsel for the Plaintiff/Respondent submitted that the Settlement Disclosure Notice provided only a “notional breakdown” of benefits and did not reflect reality. This Court should not find the Settlement Disclosure Notice to be determinative.

In his submission, it was only a document prepared by the insurer, in which the insurer did not wish to reflect and did not reflect the amounts the insurer was paying for aggravated and punitive damages for its failure to act fairly and to properly carry out its statutory and regulatory duties. The lump sum settlement included amounts for costs and disbursements that were likewise not accurately reflected on the Settlement Disclosure Notice.

Conclusion on the Deductibility of Statutory Benefits Allegedly Received On Account of Income Replacement Benefits [ 26 ] Unlike in Vanderkop and Cromwell , s. 7(1) of the Statutory Accident Benefits

Schedule and s. 267.8(1) (2) of the Insurance Act are not directly applicable to the deductibility from the tort award of statutory income replacement benefits the Plaintiff had received before the trial. Thus, the “net weekly payments” language contained in s. 7(1) of the Statutory Accident Benefits

Schedule , which drove the reasoning in Vanderkop and Cromwell , has no application to the case at bar. [ 27 ] The trial judge apparently assumed that under the principles set out in Bannon , in matching apples to apples and oranges to oranges, it was necessary for him to match amounts the Plaintiff had received on account of statutory income replacement benefits in the past against amounts awarded in tort for past income loss, and to match amounts he had received on account of future income replacement benefits to amounts awarded in tort for future loss of income, not just to match income replacement benefits,[ whether for past or future income replacement], against the total tort award fort loss of income . [ 28 ] Although the trial judge was satisfied that the amounts the Plaintiff had received for past income replacement benefits had exceeded the tort award for past loss of income, he wrote that he could not determine from the evidence what amounts the Plaintiff had actually received under the settlement on account of future income replacement benefits.” [ 29 ] Although he seemed to have accepted that the Respondent/Plaintiff had received $77,500 – the amount shown on the settlement disclosure document – for past and future income replacement benefits, he did not deduct any amounts for future income replacement (para. 16). [ 30 ] It is not necessary to decide here whether the Supreme Court of Canada in Gurniak has generally overruled the matching principle set out in Bannon , although I note that in Bannon the Ontario Court of Appeal stated that its approach to the deductibility of no- fault benefits “is more in accord with the approach taken by the British Columbia Court of Appeal in Jang ” (para. 49 ) and that the

majority of the Supreme Court of Canada in Gurniak considered and overruled Jang at paras. 44-47 of its decision. [ 31 ] The language of the current statute is different from the language dealt with in Bannon .

In Bannon , the statute provided for the deduction of “all payments that the person has received or that were or are available for no-fault benefits and by the present value of any no-fault benefits to which the person is entitled.”. [ 32 ] Since the legislation has been amended post Bannon, it is necessary for us to look at the specific wording of ss. 267.8(1) and (4) , which require the court to carry out at least a limited matching when determining the deductibility of statutory benefits. [ 33 ] Specifically, with respect to income replacement benefits, the relevant subsections provide that they must be matched against tort income losses.

Section 267.8(1) (1) does not differentiate between deductions to be made from tort awards for income loss in respect of statutory accident benefits received for past income replacement benefits and for future income replacement benefits. [ 34 ] In Cummings (Litigation Guardian of) v. Douglas, 2005 CarswellOnt 10217 (Ont. S.C.) , rev’d in

part 2007 ONCA 615 , 53 C.C.L.I. (4th) 167, an insurer had paid income replacement benefits to a plaintiff up to the date of trial. In the tort trial, the jury had assessed separate tort awards for past and future loss of income. The trial judge ordered the past income replacement benefits to be deducted from the jury’s award. This deduction was reviewed by the Court of Appeal. At the time of the trial, there had been no accident benefits settlement in respect of past and future income replacement benefits similar to the settlement here.

That is clear because, in that case, the parties had agreed that the insurer was entitled to a Cox v. Carter order. [ 35 ] While it is not clear from the short endorsement of the Court of Appeal why the issue of allocation as between past and future income arose at all, the Court of Appeal wrote, at para 10: A subsidiary question arises as to whether the income benefits should be deducted only from the award for past loss of income or from the awards for both past and future loss of income. In our view, the deduction should properly be made from the global award for loss of income.

We say this because the resulting award should not be arbitrarily determined merely by reference to the date the parties reached trial. Since the award is globally one for loss of income, it is from this award that the deduction must be made. [ 36 ] On the analysis of the Court of Appeal in Cummings , the trial judge was not required to differentiate between the two.

He was simply required, by the wording of s. 267.8(1) (1), to deduct amounts received for statutory income replacement benefits from tort awards made for income loss. [ 37 ] It follows that the trial judge erred in law in holding that the Defendant was required to prove what portion of the $77,500 constituted payments for future benefits. [ 38 ] I do not accept the submission of counsel for the Plaintiff/Respondent that the learned trial judge was correct in law in refusing to deduct the portion of the settlement representing income replacement benefits on the basis that he could not determine what portion of the lump sum represented payments for future income replacement benefits. [ 39 ] In my view, the settlement disclosure document here set out more than a “notional” allocation of payments. [ 40 ] At the time of the settlement of the accident benefits action, the Appellant/Defendant made it clear to the Respondent/Plaintiff that $77,500 of the $175,000 was being allocated to payments to be made to the Respondent/Plaintiff in respect of statutory income replacement, past and future.

While at the time of the $175,000 settlement the Plaintiff had no absolute entitlement to future income replacement payments, as part of that settlement he accepted an offer of $77,500 in respect of his claims for income replacement benefits and he received payment of the $77,500 before the trial. [ 41 ] In Amand v. Belanger , 2010 ONSC 5356 , 90 C.C.L.I. (4th) 138, Stinson J. was asked to determine deductibility of statutory accident benefits from tort awards pursuant to s. 267.8(1) (1) and s. 267.8(1)(2) of the Insurance Act .

In that case, in the tort action, a jury had awarded past income loss of $161,679 and future income loss of $25,000. As in the case at bar, prior to the trial, the plaintiff had entered into a settlement of the accident benefits action and had received $100,000 in settlement of her claim for unpaid and ongoing income replacement benefits. As in the case at bar, counsel for the plaintiff in Amand submitted that the defendant in the tort action was not entitled to deduct the $100,000 that the plaintiff had accepted to settle the plaintiff’s claim for income replacement benefits.

He submitted that that amount was not payments received as statutory accident income replacement benefits within s. 267.8(1) because they had been received pursuant to a lump sum compromise. [ 42 ] Stinson J. rejected that argument after reviewing the content of the Settlement Disclosure Notice Form, containing, under the heading of “Offer to Settle Income Replacement Benefits”, the statement that “You have been offered $100,000 for all past and future income replacement benefits.”.

He noted that the plaintiff had expressly accepted the insurer’s offer that had specified an amount of $100,000 for “income replacement benefits”. He held that, in light of the express terms set out therein, and the plaintiff’s signature on it, it would do violence to that language to characterize the $100,000 payment as something other than “for statutory accident benefits.” [ 43 ] In the case at bar, as the Settlement Disclosure Notice makes clear, the Plaintiff accepted a settlement offer of $77,500 for past and future income replacement benefits.

In all the circumstances here, it cannot be fairly said that this portion of the settlement was a compromise in respect of anything other than statutory income replacement benefits, past and future. Thus, the $77,500 pursuant to the settlement came within the wording of s. 267.8(1) .

Conclusion on Deductibility of Future Care Costs [ 44 ] The trial judge made similar errors of law in his reasoning with respect to the deductibility of medical rehabilitation and attendant care benefits. [ 45 ] The jury awarded the Plaintiff/Respondent $15,000 for future care costs in relation to his claim in relation to his participation in a pain management program to assist him in dealing with his chronic pain. These were expenses that would be incurred for health

care.

The SABS Settlement Disclosure Notice makes it clear that the Plaintiff/Appellant settled his claim for “all past and future medical benefits” for $37,500.00. [ 46 ] Subsection 267.8(4) of the Insurance Act provides that any statutory accident benefits that a plaintiff has received for health care shall be deducted from the jury’s award in relation to damages for “expenses that have been incurred or will be incurred for health care.” [ 47 ] Under the wording of this section, the $37,500 that the Plaintiff/Appellant received by way of statutory accident benefits for “all past and future medical benefits” was deductible from the jury award of $15,000 for future care costs in relation to health care.

Disposition [ 48 ] The appeal is allowed. [ 49 ] The judgment is varied and an award of $4,000 substituted in paragraph 1. [ 50 ] As agreed, the Appellant/Defendant is entitled to costs of the appeal of $7,000. ___________________________ Sanderson J. ___________________________ Molloy J. ___________________________ Sachs J. Released: January 5, 2016 CITATION : Mikolic v. Tanguay, 2016 ONSC 8196 DIVISIONAL COURT FILE NO.: 462/14 DATE: ​​​​​​​​​​​​​ 20160105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SANDERSON and SACHS JJ. BETWEEN:

ANDREW MIKOLIC Plaintiff (Respondent) – and – DAVID TANGUAY, CORRIE ALBANO and AVIVA CANADA INC. Defendant (Appellant) REASONS FOR JUDGMENT M.A. SANDERSON J. Released: January 5, 2016