Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210416 DOCKET: C67869

Roberts, Trotter and Thorburn JJ.A.

BETWEEN

Tatiana Nemchin Plaintiff (Appellant)

and

Yvonne Green Defendant (Respondent)

Counsel: Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant Stephen G. Ross, Thomas Macmillan and Meryl Rodrigues, for the respondent

Heard: October 27, 2020 by video conference

On appeal from the order of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 28, 2019, with reasons reported at 2019 ONSC 6243.

Roberts J.A.:

Overview

[1] The appellant appeals from the trial judge’s order requiring her to top up the amount of the long-term disability benefits that she assigned to the respondent’s insurer pursuant to s. 267.8(12) of the Insurance Act, R.S.O. 1990, c. I.8.

[2] Following the successful trial of her action, the appellant was awarded substantial damages against the respondent. The respondent then moved under s. 267.8(12) of the Insurance Act for an order requiring the appellant to assign her rights to the benefits she receives under an income continuation plan to the respondent’s insurer. The trial judge granted the respondent’s request and included an additional order that the appellant “top up” any amount paid from her insurer, Sun Life Assurance Company of Canada, to the respondent’s insurer, Aviva Insurance Company of Canada, to account for the fact that Sun Life deducted applicable income taxes from its payments to the appellant.

[3] While no longer contesting the assignment of her benefits to the respondent’s insurer, the appellant submits that the trial judge’s order was contrary to the principles of natural justice and exceeded her jurisdiction because neither party sought the top up that she ordered. Moreover, the appellant argues, the trial judge erred in her interpretation of s. 267.8 of the Insurance Act.

[4] The appellant asks that the trial judge’s top up order be set aside, that the respondent’s insurer repay all top up amounts to the appellant, plus interest, and that the respondent’s insurer be required to bear all costs necessary to address the tax and other implications of the assignment of the appellant’s benefits.

[5] For the reasons that follow, I would allow the appeal and grant the requested relief.

Background

[6] The appellant sustained serious injuries and became totally disabled as a result of a motor vehicle accident involving the respondent. The jury determined the respondent was 90% liable for the accident. The appellant was found 10% contributorily negligent. On April 5, 2017 the jury awarded the appellant significant damages because of her injuries. With respect to her future loss of income claim, the head of damages relevant to this appeal, the appellant received an award of $540,000, net of a 10% reduction for the appellant’s contributory negligence.

[7] The appellant’s injuries triggered coverage for long-term disability income continuation benefits from Sun Life, her employer’s group benefits insurer. Both the appellant and her employer had contributed to the plan. As a result, Sun Life deducted and remitted income taxes from its payments to the appellant under the plan and provided to the appellant an annual T4A slip for the gross benefit. In the period between the April 5, 2017 judgment and the payment of the judgment damages by the respondent’s insurer on November 14, 2019 [1], the appellant received from Sun Life net after-tax payments totalling $104,162.34.

[8] Following the jury’s verdict, the respondent brought a motion under s. 267.8(12) of the Insurance Act to require the appellant to assign to the respondent’s insurer from the date of the judgment the appellant’s rights to the Sun Life benefits. The relevant provisions of s. 267.8(12) of the Insurance Act are as follows:

Assignment of future collateral benefits

(12) The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just,

(a) the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action, [emphasis added]

(ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan,

(b) the plaintiff who recovered damages in the action co-operate with the defendants or the defendants’ insurers in any claim or proceeding brought by the defendants or the defendants’ insurers in respect of a payment assigned pursuant to clause (a).

[9] The trial judge considered how the assignment of “all rights in respect of all payments to which the plaintiff … is entitled” under s. 267.8(12)(a) should apply to the appellant’s income continuation plan. She found that s. 267.8(12)(a) called for the assignment of the gross amount of the Sun Life benefits, and not the net after-tax payments. She rejected the appellant’s submission that a ruling from the Canada Revenue Agency (“CRA”) should be obtained to determine if the appellant’s tax liability and Sun Life’s tax withholding obligation would change once the rights to the payments under the plan were assigned to the respondent’s insurer. She found that Sun Life’s obligation to withhold income tax was irrelevant to the appellant’s right to receive the gross amount of the payments.

[10] Having concluded that the respondent’s insurer was entitled to receive the gross benefit under the appellant’s income continuation plan, the trial judge considered two methods of structuring the assignment. Under the first approach, Sun Life would make payments directly to the respondent’s insurer while deducting taxes at source. The appellant would then “top up” the payments to compensate for the source deductions. The assignment would remain in place until the earlier of the appellant reaching the age of 65 and the respondent’s insurer recovering the amount it had paid in tort damages for future loss of income. From the trial judge’s perspective, this arrangement served to insulate the respondent’s insurer from the appellant’s personal tax situation: the appellant would be responsible for any shortfall arising from the deductions at source and she would receive the benefit of any tax refunds resulting from overpayment without depriving the respondent of its right to receive the full benefit.

[11] Under the second approach, the appellant would not top up the payments, and the respondent’s insurer would receive the net payments from Sun Life. In both cases, the appellant would receive the benefit of any tax refund and bear responsibility for any shortfall. However, under the second approach, the respondent’s insurer would recoup the amount owing under the assignment more slowly.

[12] The trial judge concluded that the appellant was required to top up the net payments from the date of the judgment that were assigned to the respondent’s insurer so that they would equal the gross payments to which the appellant was entitled under the Sun Life plan.

[13] With respect to the amounts already paid by Sun Life under the income continuation plan, the trial judge ordered the appellant to disclose to Aviva the gross amount of her entitlement since the jury’s verdict. This amount, later determined to be $124,951.05, was deducted from the $540,000 income loss award in accordance with the trial judge’s top up order, despite the fact that the appellant had only received net payments of $104,162.34 from Sun Life. At the hearing of the appeal, counsel for the appellant indicated that the appellant has not made any further top up payments on the assigned payments.

Issues

[14] I would summarize the issues as follows:

i. Was the trial judge’s top up order procedurally unfair and contrary to natural justice? ii. Did the trial judge err in her interpretation and application of s. 267.8 of the Insurance Act?

Procedural Fairness

[15] It is common ground that neither party requested that the trial judge make the top up order. Rather, the appellant submitted that the gross amount of the payments received from Sun Life should be credited against the amount assigned to Aviva, even though Aviva would receive only payment of the net benefit, and that, regardless, there should be a mechanism to address the potential income tax shortfall or overpayment by the appellant arising from the deduction of income tax at source. The respondent sought an assignment to its insurer of the appellant’s rights to the net after-tax benefits received from Sun Life from the date of judgment, with a provision for an accounting of any taxes refunded in the case of overpayment on source deductions. The trial judge did not request submissions from the parties on the issue of top up.

[16] In my view, the trial judge resolved the rights of the parties, imposed a burden on the appellant, and provided a remedy to the respondent, “on a theory never pleaded and with respect to which battle was never joined”: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at para. 63. Accordingly, the order must be set aside.

[17] Anticipating this outcome, the parties requested that this court look afresh at the top up question and the underlying issue of the parties’ respective rights and obligations under the statutory assignment, rather than remitting it to the trial judge for a rehearing. I am of the view that the record and the parties’ submissions are sufficient to permit such a determination. I turn now to that analysis.

Section 267.8 of the Insurance Act

The parties’ positions

[18] The appellant submits that the trial judge’s top up order represents an erroneous interpretation of the trust and assignment provisions of s. 267.8 of the Insurance Act. Under the trust provisions, the appellant can only hold in trust and pay over to the respondent’s insurer the payments she actually received. Under the statutory assignment, the respondent’s insurer, as assignee of the rights to the taxable collateral benefits, must assume the tax consequences of the benefits along with the benefits themselves. Otherwise, the appellant, as tort victim, is left in a worse net position than a tort victim with no collateral benefits, and the respondent’s insurer receives a windfall.

[19] The respondent says that even if the trial judge erred, her top up order is reasonable and causes no prejudice to the appellant. It also best serves the principle of finality that benefits both parties because there will be no need for an ongoing accounting or other administrative reconciliation. Relying on Kant v. The Queen, [2001] 2 C.T.C. 2703 (T.C.C.), the respondent submits that the appellant may not be required to pay taxes on the benefits after the assignment since “they are not taxable in [her] hands when assigned because she derives no benefit from them”. According to the respondent, the appellant can seek a refund of the taxes remitted by Sun Life.

Analysis

[20] It is my view that the trial judge misinterpreted ss. 267.8(9), (10), and (12)(a)(ii) of the Insurance Act and applied the trust and assignment provisions in a manner contrary to the plain meaning of the legislative text and its purposes. She also erred in failing to take into account Sun Life’s withholding and remittance of income tax as a statutory trust and its effect on the appellant’s rights under the plan.

[21] As this court indicated in Bapoo v. Co-Operators General Insurance Co. (1997), 154 D.L.R. (4th) 385 (Ont. C.A.), leave to appeal refused, [1998] S.C.C.A. No. 62, at p. 389, the interpretative framework to be applied is as follows:

The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning. Professor Sullivan described the modern approach in the following passage in Driedger on the Construction of Statutes:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. [Emphasis added; Citations omitted.]

[22] It is well established that the legislative purpose of s. 267.8 is to promote fair compensation to injured plaintiffs and prevent double recovery. As this court observed in Cadieux v. Cloutier, 2018 ONCA 903, 429 D.L.R. (4th) 468, leave to appeal refused [2019] S.C.C.A. No. 63, at para. 17: “Section 267.8 of the Insurance Act contains provisions designed to address [the overlap between tort damages and collateral benefits] and to prevent double recovery. It reflects the principle that victims should be fairly compensated, but not over-compensated.” See also: Carroll v. McEwen, 2018 ONCA 902, 429 D.L.R. (4th) 443, at para. 38; Cobb v. Long Estate, 2017 ONCA 717, at para. 52; El-Khodr v. Lackie, 2017 ONCA 716, 416 D.L.R. (4th) 189, at para. 33, leave to appeal refused, [2017] S.C.C.A. No. 461. As I shall explain, I conclude that the effect of the trial judge’s order is to leave the appellant undercompensated and in a worse position than if she had not had collateral benefits from Sun Life.

The trust provisions under ss. 267.8(9) and (10)

[23] While the trial judge did not expressly address the application of the trust provisions under ss. 267.8(9) and (10) to the amounts received by the appellant pre-assignment, the effect of her order requiring the deduction of the gross amount of the payments to the appellant under the Sun Life plan since the date of judgment on April 5, 2017 resulted in the deduction of more than the amount of the payments actually received and held in trust by the appellant post trial and pre-assignment. This effect runs contrary to the provisions of ss. 267.8(9) and (10).

[24] Under s. 267.8(9)(ii), prior to any assignment under ss. 267.8(12)(a)(ii), a successful plaintiff must hold “payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity … under an income continuation benefit plan” in trust (emphasis added). Subsection 267.8(10) requires the plaintiff who holds money in trust under subsection (9) to “pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages”.

[25] Subsections 267.8(9) and (10) impose a statutory trust on the payments that the plaintiff actually receives for the benefit of the defendant or the defendant’s insurer. These provisions reflect basic trust principles: a trustee is only chargeable for the trust property that he or she actually holds or controls; and the trust property does not form part of the trustee’s property but is held for the beneficiary of the statutory trust: [Lewin on Trusts, 19th ed. (London: Sweet & Maxwell, 2015) at pp. 2-4 and 285]. See also [In Re Scott, [1948] SASR 193, at p. 196]. Under ss. 267.8(9) and (10), the plaintiff as trustee holds the monies received in trust for the defendant or the defendant’s insurer who pays the judgment damages.

[26] The trust property in the present case consisted of the net after-tax payments that the appellant received pre-assignment from Sun Life from the date of the judgment in the amount of $104,162.34. The appellant, as trustee, was only required to hold in trust and then pay to the respondent’s insurer these actual payments from Sun Life, which were net of tax. Contrary to the provisions of ss. 267.8(9) and (10), the trial judge’s order erroneously inflated that amount to $124,951.05, representing the gross pre-tax amount, which had the effect of reducing the appellant’s compensation by $20,788.71 once the trust funds were set off against the judgment damages. The appellant was never required to hold this amount in trust and it should be repaid.

The assignment provisions under s. 267.8(12)(a)(ii)

[27] Similar reasoning led the trial judge into error with respect to the assignment provisions under s. 267.8(12)(a)(ii) of the Insurance Act. As noted, this section permits a defendant to seek the assignment to its insurer of “all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident … under an income continuation benefit plan”. In my view, the trial judge conflated the respondent’s insurer’s entitlement to the rights to the plan benefits with the mechanism of a specific mode of payment, namely an assignment, and therefore failed to apply the assignment provisions under s. 267.8(12)(a)(ii) in a manner consistent with the trust provisions under s. 267.8(9) and (10).

[28] The trial judge correctly recognized at para. 16 of her reasons that “the assignment is of “all rights in respect of all payments” and that “[t]he assignment is of more than the payments themselves”. However, she failed to recognize that the respondent’s insurer, as assignee, steps into the shoes of the appellant and acquires the entitlement to the rights to the appellant’s benefits subject to all the equities and obligations existing between the appellant and Sun Life under the plan: Frederick v. Aviation & Gen. Ins. Co., [1966] O.J. No. 1064 (C.A.). Instead, the trial judge effectively concluded that the respondent’s insurer was entitled to collect the appellant’s gross benefits as if they were not taxable or as if the appellant had elected to take the entire taxable sum in hand.

[29] In my view, the language of s. 267.8(12) does no more than clarify the mechanism of the assignment of the appellant’s rights to the payments within the scheme of s. 267.8. This means that by virtue and for the term of the assignment, the respondent’s insurer has all the appellant’s rights and is subject to all the provisions under the plan, including, subject to the plan [2], the ability to deal directly with Sun Life and to contest the deduction of income taxes from the payments. But, while s. 267.8(12)(a) refers to “all rights in respect of all payments to which the plaintiff who recovered damages is entitled” rather than “payments received by the plaintiff”, as was the case in Bapoo, it does not entitle the respondent’s insurer to receive payments greater than those the appellant receives. Subsection 267.8(12) does not refer to payments “received”, because the focus of this provision is not on the entitlement to payments, but rather on the broader entitlement to the plaintiff’s underlying rights, which includes a right to payment, among others.

The trust and assignment provisions are complementary mechanisms

[30] The trial judge’s approach fails to take into account the complementary nature of the trust and assignment provisions in the context of s. 267.8 as a whole which, as earlier noted, is designed to ensure fair compensation to the injured plaintiff: Cadieux, at para. 111.

[31] First, the trial judge’s approach would introduce a discrepancy between the provisions of ss. 267.8(9) and (10), and (12) of the Insurance Act, which are intended to be complementary. As earlier noted, the modern rules of statutory interpretation require “the words of the statute to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the enacting legislative body”: Cadieux, at para. 109, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

[32] Subsections 267.8(9), (10), and (12) provide for two different mechanisms that work together to achieve the same underlying aim of providing compensation without over-compensation: Cadieux, at para. 24; Carroll, at para. 38; El-Khodr, at para. 33. As discussed above, the plain meaning of s. 267.8(9) is that a plaintiff is required to hold monies actually received in trust. Here, prior to any assignment to the respondent’s insurer under s. 267.8(12)(a)(ii), the appellant was required to hold in trust the actual net after-tax payments from Sun Life as she received them. It would not make common sense for the assignment to apply to gross pre-tax amounts if the trust does not. This would place the appellant in a different and worse position simply because the mechanism of assignment was engaged as opposed to the mechanism of a trust.

[33] Second, and similarly, it would not make common sense for there to be a different meaning of the word “payments” in each of ss. 267.8(9), (10) and (12). Reading the provisions harmoniously, the “grammatical and ordinary sense” of the word “payments” is the same in the trust and assignment provisions under s. 267.8(9), (10), and (12). As noted, the “payments” referred to in ss. 267.8(9) and (10) are the payments actually received and held in trust by the appellant. In this case, from the date of the judgment, this amounted to $104,162.34 in payments that the appellant actually received. The word “payments” in s. 267.8(12) must refer to the same payments but to be received under the mechanism of an assignment.

Effect of Sun Life’s statutory obligations

[34] The trial judge’s errors in her interpretation and application of the trust and assignment provisions led her to ignore the effect of Sun Life’s withholding and remittance of income taxes to the CRA from the plan payments pursuant to its statutory obligations. Again, as the appellant’s assignee, the respondent’s insurer has all the same rights as against Sun Life as the appellant, and Sun Life has all the same defences. These defences may include any statutory obligation on the part of Sun Life to withhold and remit taxes to the CRA from the plan payments.

[35] The respondent argues that, post-assignment, Sun Life is no longer required to withhold and remit taxes because the appellant no longer receives the benefit of the plan payments; however, as I explain in para. 38 below, this is by no means certain absent a court order or CRA ruling. Moreover, it is common ground that pre-assignment, Sun Life was obliged under the provisions of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), to deduct and remit taxes from payments made directly to the appellant for her benefit under Sun Life’s income continuation plan. Further, post-assignment, Sun Life intends to continue withholding and remitting income taxes regardless of whether the payments are issued directly to the appellant or to the respondent’s insurer, until otherwise exempted by court order or CRA ruling.

[36] The parties did not reference the provisions of the Income Tax Act that give rise to Sun Life’s statutory obligations to withhold and remit taxes. Presumably, the income from the plan is taxable in the hands of the appellant under s. 6(1)(f) of the Income Tax Act because both the appellant and her employer contributed to the plan: See also Pugh v. Canada, [2000] T.C.J. No. 585, at para. 9; Bouchard v. Canada, 2008 TCC 408, at para. 14. If that is the case, then the income from Sun Life under the income continuation plan would fall under the definition of “salary or wages” at in s. 248. Under s. 153 of the Income Tax Act, “Every person paying at any time in a taxation year (a) salary, wages or other remuneration … shall deduct or withhold from the payment” the payee’s tax. This is no mere “mechanical exercise” as the trial judge stated. Amounts deducted but unremitted by any person are deemed to be held “separate and apart from the property of the person” and “in trust for Her Majesty and for payment to Her Majesty” pursuant to s. 227(4) of the Act.

[37] Regardless if its position is correct, the fact that Sun Life purports to withhold and remit income taxes pursuant to a statutory obligation to the CRA means that those monies are imposed with a statutory trust and therefore do not form part of the payments made under the plan. Even if the respondent prevails and Sun Life is no longer required to withhold and remit taxes, this does not alter the nature and effect of its present withholdings and remittances as statutory trust funds. In consequence, so long as Sun Life withholds and remits taxes pursuant to the statutory trust provisions of the Income Tax Act, Aviva’s assigned rights are to the net after-tax payments.

[38] I do not accept the respondent’s submission that the trial judge’s order causes no prejudice to the appellant because she can simply apply for a tax refund and be in no worse position. First, it is by no means certain that the CRA would agree that the appellant is entitled to a refund of the taxes remitted by Sun Life. It is dependent on a whole host of variables, including the appellant’s personal tax circumstances about which there is no evidence. Second, the appellant would likely be required to incur considerable expense to ascertain whether the CRA accepts this position. This additional financial burden is contrary to s. 267.8 of the Insurance Act since it undermines the purpose of full compensation for the appellant.

[39] The respondent obtained an assignment to its insurer of the appellant’s rights to future collateral benefits under the Sun Life plan from the date of judgment. If it disputes the deduction of income tax at source, then the respondent’s insurer, having stepped into the appellant’s shoes through the assignment, must take the necessary steps and incur the necessary expense to deal with that issue. For the term of the assignment, the appellant has assigned her rights with respect to those payments. While s. 267.8(12)(b) of the Insurance Act requires her to cooperate with the respondent’s insurer, it is the respondent’s insurer, as assignee, that must direct what is to be done in relation to the plan benefits.

[40] The respondent and its insurer cannot complain of its situation. If they had acceded to the appellant’s request to seek a ruling from the CRA on the tax issue, the issues of quantum and liability for taxes following the assignment could have been ascertained. As it presently stands, the respondent’s insurer is only entitled to receive what Sun Life pays. It would be patently unfair to require the appellant to pay for the very step that she submitted was necessary before the trial judge made her assignment order. Having taken the benefits of the assignment, the respondent’s insurer must undertake the concomitant burdens.

Conclusion

[41] The trial judge’s interpretation leads to an unfair result. It imposes a financial burden on the appellant that she would not have incurred if she did not have collateral benefits. This runs counter to the principle of full compensation. The statutory assignment of her rights under the Sun Life plan means that for the term of the assignment the appellant no longer receives any benefit under the plan and should be relieved of any financial burden in respect of it.

[42] Accordingly, the correct interpretation of s. 267(12)(a)(ii) of the Insurance Act is that the assignment of the appellant’s rights under the plan means that the respondent’s insurer is entitled to a credit for the actual payments that the appellant receives under the plan. As matters now stand, this means net of the taxes withheld by Sun Life. The respondent’s insurer is entitled to take whatever steps are necessary, at its own expense and with the appellant’s co-operation, as required under s. 267(12)(b), to deal with the issue of the tax withholdings with Sun Life and the CRA.

Disposition

[43] In my view, the fairest order that is also in keeping with the purposes of s. 267.8 of the Insurance Act is to amend the trial judge’s order to provide for the assignment from the date of judgment of the appellant’s rights in respect of all payments under the Sun Life plan to the respondent’s insurer, net of all income tax withholdings so long as Sun Life continues to withhold and remit income taxes to the CRA from the payments made under its plan, until the appellant reaches the age of 65 or the respondent’s insurer has been fully reimbursed for its payment of the loss of income damages award, whichever event occurs earlier. We were advised that the appellant has not received any tax refunds or credits with respect to the withholdings since the date of judgment. As a result, so long as Sun Life continues to withhold taxes from the payments made under its plan, this order obviates the need for an annual accounting.

[44] In the event the respondent’s insurer wishes to contest with Sun Life and/or the CRA the issue of tax withholdings during the period of the assignment, the respondent’s insurer shall pay all expenses associated with such request, including for the preparation of any necessary forms or returns by the appellant or her financial, legal or other advisors, and the payment of any disbursements or fees. This arrangement is consistent with the requirement in para. 4 of the order that the respondent’s insurer shall pay the appellant the reasonable costs that she incurred to preserve her rights to payment of the long-term disability benefits under the Sun Life plan.

[45] Accordingly, I would allow the appeal. I would amend para. 2 of the October 28, 2019 order to reflect the disclosure of the gross and net payments for the benefits under the Sun Life plan, set aside paras. 3, 5 and 6 and insert in their place a new paragraph (or paragraphs as the case may be) in accordance with these reasons. I would order that the respondent’s insurer pay to the appellant the amount of $20,788.71 that was deducted from its payment of the appellant’s loss of income damages award. As earlier noted, according to the parties’ submissions, the appellant has not paid any top up amounts under paras. 5 and 6 of the October 28, 2019 order. If that is incorrect, the appellant is at liberty to provide evidence of such payments and this court’s order can provide for their repayment. I would amend para. 9 to provide that the appellant shall co-operate with the respondent’s insurer, at the latter’s expense, and that this co-operation shall also include participation in any process regarding Sun Life and/or the CRA concerning the income tax remitted by Sun Life.

[46] The parties did not make submissions as to what should occur with respect to any set off against the judgment in the event that the taxes previously remitted by Sun Life were refunded by the CRA and/or in the event that Sun Life no longer withholds the taxes. Accordingly, if the parties cannot agree on the formulation of the additional terms to be inserted into the order in accordance with these reasons, or they require additional direction to address the set off issue or any other issue necessary for the implementation of this court’s decision, I would permit them to make brief written submissions of no more than two pages, plus a draft form of order, within seven days of the release of these reasons.

[47] In accordance with the parties’ agreement, I would grant the appellant her partial indemnity costs of the appeal in the amount of $30,000, inclusive of disbursements and applicable taxes.

[48] If the parties cannot agree on the disposition of the costs on the motion before the trial judge, I would allow them the opportunity to forward to the panel brief written submissions of no more than two pages, with a costs outline, within seven days of the release of these reasons.

Released: April 16, 2021 “L.R.” “L.B. Roberts J.A.” “I agree. Gary Trotter J.A.” “I agree. Thorburn J.A.”

[1] This delay appears to have resulted in part from the appeal of the decision on the merits, which this court dismissed on July 31, 2019 with reasons reported at 2019 ONCA 634, and from the fact that the payment of damages was put off until the quantum of the assignment could be ascertained in the post-trial ruling currently under appeal. That motion was only argued in October 2019.

[2] We were not provided with a copy of the Sun Life plan. While a June 26, 2018 email from Sun Life to appellant’s counsel, noted by the motion judge at para. 21 of her reasons, refers vaguely to some mechanical difficulty with payment protocols, it does not indicate, in my view, any restriction against the respondent’s insurer dealing directly with Sun Life. As a result, I presume there is none.