Jacqueline Bennett v. Motor Vehicle Accident Claims Fund, 2012 ONFSCDRS 158

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 158

FSCO A11-001476

BETWEEN:

JACQUELINE BENNETT

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Alec Fadel

Heard: August 29, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Kyle Smith for Ms. Bennett

Martin Tiidus for Motor Vehicle Accident Claims Fund

Issues:

The applicant was a pedestrian when she was struck by a motor vehicle on January 10, 2008. She did not have automobile insurance at the time and the vehicle that struck her was driven by an uninsured driver. The applicant applied for accident benefits from the Motor Vehicle Accident Claims Fund (the MVAC Fund). The MVAC Fund refused to pay a number of benefits including income replacement and medical benefits resulting in an application for arbitration. At the pre-hearing a dispute arose concerning the potential deductibility of a settlement achieved between the applicant and a collateral carrier.

The applicant had a policy of insurance through Great West Life (GWL) and received a long term disability benefit payment until May 29, 2008 when the benefits were terminated. The applicant issued a statement of claim against GWL for damages and unpaid benefits. The GWL action was settled on December 23, 2011 and by letter dated January 9, 2012, the MVAC Fund was informed that the action settled for $150,000.00 of which the applicant was to receive $100,000.00 after legal fees. The MVAC Fund brought this motion and takes the position that it is entitled to deduct the proceeds from the GWL settlement from any accident benefits owing to the applicant on two bases:

Section 267.8 of the Insurance Act allows for collateral weekly payments for loss of income to be deducted from the income replacement benefit owing by an accident benefit insurer; and,
Section 22 of the Motor Vehicle Accident Claims Act (MVACA) requires that any amounts paid because of the existence of an insurance policy are deductible by the MVAC Fund from any accident benefits owing.

The applicant takes the position that given the caselaw the settlement is not deductible.

The preliminary issue is:

Is the GWL settlement deductible pursuant to s. 267.8 of the Insurance Act?
Is the GWL settlement deductible pursuant to s. 22 of the MVACA?

Result:

The GWL settlement is not deductible pursuant to s. 267.8 of the Insurance Act or s. 22 of the MVACA.

EVIDENCE AND ANALYSIS:

The applicant submits that the law regarding deductibility of settlements of this kind has been well established in recent years. She relies on Vanderkop v. Personal Insurance Company of Canada¹, Cromwell v. Liberty Mutual Insurance Company², and Anand v. Belanger³, all from the Ontario Superior Court of Justice, to support this position.

In Vanderkop the plaintiff commenced an action against her LTD carrier that was subsequently settled with a lump sum payment of $57,500.00. The accident benefit insurer claimed that it was entitled to a credit for this payment under the Schedule. The Court found that the $57,500.00 was a payment for all past, present and future claims which included a claim for aggravated and punitive damages and damages for mental distress. It was concluded by the Court that the monies paid pursuant to the settlement could not be characterized as “net weekly payments for loss of income that are not being received by the person as a result of the accident” and were instead found to be funds that represented “a lump sum payment arrived at after a law suit was commenced and negotiated as a compromise.”

In Cromwell, the Court examined the deductibility of LTD benefits from a Sun Life Policy and found that the benefits payable under that policy were deducible under the Schedule. However, when examining the lump sum settlement made by Sun Life as a result of the commencement of litigation, there was evidence presented that only $15,000.00 represented payment for arrears due under the Sun Life policy. The other component of the settlement, being $160,000.00, represented a lump sum with respect to future benefits. The Court found that there was no evidence that the lump sum paid by the LTD insurer was calculated taking into account the future value of the LTD payments and found that instead it was “arrived at on the basis of the amount of money available under the authority of the person authorizing settlement.”

The Court found it relevant in Cromwell that the release involving the LTD benefits also involved mental stress, aggravated and punitive damages and it was found that the settlement did not qualify as “net weekly payments for loss of income . . . under any income continuation benefit plan.” The Court found that the accident benefit insurer was not entitled to a deduction in respect of the $160,000.00 lump sum payment paid by the LTD insurer.

It was highlighted by the applicant that the Court in Cromwell followed the reasoning of the Supreme Court of Canada in Tsiaprailis v. R.,⁴ which is a tax law decision. In Tsiaprailis the Supreme Court, when addressing the issue of the correct tax treatment for disability insurance plan payments, held that:

It is clear that monies paid in settlement of any future liability under the disability insurance plan were not paid “pursuant to” the plan because there is no obligation to make such a lump sum payment under the terms of the plan.

In the recent decision in Anand, Cromwell was followed. It was noted in Anand that at the time of the settlement of the LTD action, the LTD insurer’s obligation did not include future payments that were contingent on the applicant’s entitlement to them based on an ongoing disability. Justice Stinson concluded that consistent with the reasoning in Cromwell, “the payment made by Manulife to settle Mrs. Anand’s claim against them was not a payment ‘under an income continuation benefit plan’; rather, it was a payment to settle a legal obligation that one party sought to enforce by litigation. Therefore it follows that this payment falls outside the scope of s. 267.8(1)2.”

The MVAC Fund submits that the GWL settlement is deductible from any IRB payable by the MVAC Fund because a disability benefit is an award for loss of income or earning capacity as established in s. 267.8 of the Insurance Act. This position is counter to the caselaw that has been highlighted above. Accordingly, I do not find that the GWL settlement represents damages for loss of income as established by the Insurance Act and instead was a payment to settle a legal obligation arising from the commencement of litigation.

In Vanderkop there was no allocation of the lump sum payment under the various heads of damages and it was found by the Court that the accident benefit insurer was not entitled to any deduction for payments in respect of the lump sum settlement. The case before me is similar and no reliable evidence was provided to suggest that all or some of the GWL settlement represented an amount of past LTD payments owed by GWL.

In the applicant’s statement of claim against GWL, she claimed a number of things including

a declaration that she was entitled to monthly indemnity payments from May 2008 by reason of her disability
a declaration that she was entitled to rehabilitation, other supplementary medical benefits available to her under the LTD policy
damages by way of resulting economic losses sustained by the applicant as a result of her disability
exemplary, aggravated and punitive damages
damages for bad faith in the amount of $1,000,000.00
pre- and post-judgment interest
costs of the action

The full and final release indicates that for the sum of $150,000.00, the applicant released GWL “of and from any and all manor of action and actions, cause and causes of action, suits, debts, dues, sums of money, general damages, special damages, costs, claims and demands of every nature and kind, at law or in equity or under any Statute . . . arising out of or relating to the policy or the pleadings issued in respect of the Action.”

Given the abovementioned caselaw, I do not find that the GWL settlement related solely to LTD benefits, past or future, and with no evidence presented regarding a breakdown of the settlement funds, they are not deductible under s. 267.8 of the Insurance Act. In addition, even if part of the settlement funds represented exposure for future entitlement to LTD payments, as held in Cromwell and supported by Tsiaprailis this would not be deductible.

The MVAC Fund further submits that the deduction of the GWL settlement is guaranteed by s. 22(1) of the Motor Vehicle Accident Claims Act (“MVACA”) which states:

No payment shall be made out of the Fund in respect of a claim or judgment for damages or in respect of a judgment against the Superintendent of an amount paid or payable by an insurer by reason of the existence of a policy of insurance within the meaning of the Insurance Act, other than a policy of life insurance, and no amount sought to be paid out of the Fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance within the meaning of the Insurance Act, other than a policy of life insurance.

The MVAC Fund argues that despite case law, s. 22(1) guarantees the deduction of the GWL settlement received by the applicant from any benefits which may be payable by the MVAC Fund.

The MVAC Fund asks that I interpret s. 22 of the MVACA to mean that the settlement funds are payable because of the existence of a policy of insurance; however, I interpret s. 22 to mean that actual benefit payments made because of the existence of a policy of insurance are deductible. Payment of settlement funds as a result of litigation which included many elements other than the payment of benefits pursuant to a policy of insurance is not the same as payment of a benefit pursuant to the existence of a policy of insurance.

I find that s. 22 does not apply in this instance since we are dealing with proceeds of settlement and not an award made by a Court where a finding of entitlement to a certain disability benefit is made, or a benefit payable by a collateral insurer “by reason of the existence of a policy of insurance.”

In addition, I find that the cases relied upon by the MVAC Fund are not on point as none of them deal with monies received in a settlement of a court action. For example, the Ontario Superior Court in Meloche v. McKenzie⁵ found that collateral benefits provided by the employer were properly deductible. In Strickland v. Mistry⁶ the Ontario Superior Court found that the CPP disability pension and a long-term disability benefit being received by the plaintiff were properly deductible pursuant to s. 267.8(a) of the Insurance Act. In Miller et al. v. Gibbons et al.,⁷ the plaintiff received an award that included $520.00 of disability benefits that the Court of Appeal found was deductible from the total amount payable by the MVAC Fund.

Also, as stated above, there is no evidence before me suggesting a breakdown of the GWL settlement and therefore no way to determine what, if any, of the settlement represents a payment for past LTD benefits owed pursuant to the policy.

Conclusion:

Given the reasoning in Anand and Cromwell, I find that the settlement funds resulting from the GWL action are not deductible under the Insurance Act. I also find that s. 22(1) of the MVACA does not apply in this instance. Unlike Cromwell, there is no evidence before me of what portion of the settlement involved past benefits owing and I am unable to make a finding relating to same. Also, I do not find that the settlement funds were paid pursuant to a policy of insurance but were paid in order to settle a court action.

EXPENSES:

The parties did not make submissions on the issue of expenses and this issue will be dealt with by the hearing arbitrator after the full hearing has concluded.

December 5, 2012

Alec Fadel

Arbitrator

Date