McDonald v. Kwan, 2011 ONCA 789

CITATION: McDonald v. Kwan, 2011 ONCA 789

DATE: 20111215

DOCKET: C53239

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

James McDonald, Dorothy June McDonald and Judith McDonald Andrew

Plaintiffs (Respondents)

and

Hoi Ko Kwan and Po Ping Lana Lai

Defendants (Appellant)

John M. Burnes, for the appellant

Jeffrey Wm. Strype, for the respondents

Heard: December 7, 2011

On appeal from the judgment of Justice Eva Frank of the Superior Court of Justice, dated January 4, 2011, reasons reported at 2010 ONSC 5861.

ENDORSEMENT

[1] The appellant appeals from the trial judge’s assessment of damages for future loss of income in a personal injury negligence action. At the conclusion of oral argument, we dismissed the appeal for reasons to follow. These are those reasons.

[2] Although the appellant raised various grounds of appeal in his factum concerning the damages awarded at trial for future loss of income, during oral argument his challenge of this award was narrowed to two main issues.

[3] The appellant argued that the trial judge erred: (1) by failing to order disclosure of the settlement amounts received by the respondent on the compromise of litigation arising from two later motor vehicle accidents involving the respondent and; (2) by failing to deduct those settlement amounts from the gross damages awarded in this case for future income loss.

[4] Next, the appellant maintained that the trial judge erred by failing to hold that the statutory trust and assignment pertaining to the respondent’s receipt of future collateral benefits, which accrues to the appellant’s benefit by reason of ss. 267.8(9) and (10) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), extends to future pension benefits paid to the respondent by his former employer or under the Canada Pension Plan.

[5] We reject these arguments.

[6] At trial, the parties agreed on the method by which the trial judge was to quantify the damages recoverable by the respondent from the appellant. Based on Hicks v. Cooper, 1973 CanLII 1254 (ON CA), [1973] O.J. No. 772 (C.A.), that method contemplated that the trial judge would globally assess the damages caused by all three motor vehicle accidents and then subtract the damages caused by the second and third accidents from the global assessment. The parties also agreed that damages attributable to the second and third accidents would be quantified on the basis of a percentage of the total damages.

[7] This overall approach to the assessment of damages ensured that the respondent would not realize any double recovery for the injuries at issue. Rather, he would recover only what was owed to him as a result of the appellant’s own negligence.

[8] Three additional aspects of the damages award for income loss are noteworthy.

[9] First, the trial judge held that the accident involving the appellant was the sole cause of the respondent’s past and future loss of income. On her unchallenged factual findings, on a global assessment of the respondent’s losses, no loss of income could be attributed to either of the two subsequent accidents as the respondent was already permanently disabled from employment when the subsequent accidents occurred.

[10] Second, the appellant is entitled to deduct 100% of the past collateral benefit payments received by the respondent from the income loss damages, without regard to any possible deductibility of those payments from the damages or settlement proceeds otherwise payable in the actions relating to the second and third accidents. In other words, regardless of the deduction claims of the defendants in the other two actions, the appellant is to enjoy a full deduction for all past collateral benefit payments. This is a significant benefit to the appellant.

[11] Third, as we have said, by operation of ss. 267.8(9) and (10) of the Act, the appellant is also entitled to payment of all future collateral benefits payable to the respondent, including Canada Pension Plan payments and long-term disability benefits.

[12] In our view, in all these circumstances, it is not open to the appellant to also seek to deduct, on the ground of double recovery, the settlement proceeds payable to the respondent in the actions relating to the second and third accidents from the damages awarded to the respondent at this trial for future income loss. As the trial judge put it, the approach to the assessment of damages employed in this case ensured that the appellant was “called upon to pay no more than what is owed to the [respondent] as a result of this [appellant’s] negligence”.

[13] This is also a full answer to the appellant’s complaint regarding non-disclosure of the details of the settlements pertaining to the second and third accidents. Whatever may be said about the merits of the appellant’s disclosure requests before or at trial, the method ultimately used for the assessment of damages and the trial judge’s causation findings concerning the respondent’s income loss render such disclosure unnecessary and irrelevant.

[14] Nor do we accept the appellant’s complaint concerning the trial judge’s ruling in respect of the respondent’s future pension benefits. As we understood his argument, the appellant submits that he is entitled to an assignment of the pension benefits that may be payable to the respondent in the future by his former employer or under the Canada Pension Plan until the respondent reaches his 65th birthday, providing that the respondent elects to receive those pension benefits prior to turning 65 years of age.[^1]

[15] The trust provisions of s. 267.8 of the Act make no mention of pension benefits. The trial judge rejected this claim as speculative. She was right to do so. There is no suggestion that the respondent intends to pursue the early receipt of his pension benefits. Should he elect to do so in the future by opting for early retirement, the appellant acknowledges that it will be open to him to seek to recover some of the payments at issue by resorting to arbitration under the arbitration provisions of the assignment agreements to be entered into by the parties in relation to s. 267.8 of the Act.

[16] Accordingly, for the reasons given, the appeal was dismissed. The respondent is entitled to his costs of the appeal, fixed in the amount of $20,000, inclusive of disbursements and all applicable taxes.

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”

[^1]: This argument assumes that, as a matter of law, the respondent’s Canada Pension Plan benefits may be the subject of an assignment agreement in light of the statutory trust provisions of s. 267.8 of the Act. It is unnecessary to address this issue for the purpose of this appeal and we decline to do so.