COURT OF APPEAL FOR ONTARIO DATE: 20210621 DOCKET: C68343

Doherty, Pepall and Thorburn JJ. A.

BETWEEN

Kossay El-Khodr Applicant (Appellant)

and

Northbridge Commercial Insurance Company and Hughes Amys LLP Respondents (Respondent)

Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant Harvey Klein, for the respondent

Heard: February 19, 2021 by videoconference

On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated April 17, 2020, with reasons reported at 2020 ONSC 2319.

Thorburn J.A.:

Overview

[1] In Ontario, parties injured in an automobile accident can receive “no fault” first-party benefits through receipt of statutory accident benefits (“SABs”). SABs are required by statute to be included in all automobile insurance policies. They provide a person injured in an accident, whether or not they are at fault, access to medical, rehabilitation, and other benefits to assist with their recovery.

[2] An injured person may also bring a legal action against the “at fault” driver in tort (“the tort defendant”). There is often overlap between the compensation provided pursuant to the SABs and the award of damages in a civil proceeding.

[3] Section 267.8 of the Insurance Act, R.S.O. 1990, c. I.8, therefore provides that tort awards must be reduced by corresponding categories of SABs received. This is accomplished by deducting those SABs received before trial from the damages awarded and by either holding in trust those SABs received after trial or by assigning the SABs benefits payable after trial to the tortfeasor or his insurer.

[4] The appellant, Kossay El-Khodr, suffered catastrophic injuries in a motor vehicle accident. Royal & Sun Alliance Insurance Company of Canada (“Royal”) is Mr. El-Khodr’s SABs insurer. The respondent, Northbridge Commercial Insurance Company (“Northbridge”), is the insurer for the tort defendant and conducted the defence on the tortfeasor’s behalf.

[5] The jury awarded Mr. El-Khodr substantial damages payable by the tortfeasor. Northbridge, as insurer for the tortfeasor, sought an assignment of certain accident benefits payable by Royal to Mr. El-Khodr. While the trial judge assigned some benefits, the assignment of benefits for future medication and assistive devices and future professional services was denied.

[6] Northbridge appealed the decision (“the Assignment Appeal”) to this court. After the Assignment Appeal was heard but before reasons were released, Royal, Northbridge, and Mr. El-Khodr entered into Minutes of Settlement. Under the minutes of settlement, Royal settled $385,000 into a trust for the benefit of the appellant and Northbridge in “full and final satisfaction of any and all entitlement to medical and rehabilitations benefits.” The Minutes of Settlement provided, as set out in detail below, that this sum would be held by Hughes Amys LLP, counsel to Northbridge, and released either to Mr. El-Khodr or Northbridge depending on the outcome of the Assignment Appeal. Specifically, Northbridge would receive the funds “in the event that the said appeal is allowed and an assignment of Kossay El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge.”

[7] In September 2017, the Assignment Appeal was granted and this court ordered that the amounts payable by Royal to Mr. El-Khodr for future medication and assistive devices, and for professional services for specified benefits up to the amount of the jury award, be assigned to Northbridge: see El-Khodr v. Lackie, 2017 ONCA 716, 139 O.R. (3d) 659, leave to appeal refused, [2017] S.C.C.A. No. 461.

[8] The application judge was asked to interpret the Minutes of Settlement in light of the Assignment Appeal and determine whether the preconditions for the transfer of funds to Northbridge in the Minutes of Settlement were satisfied.

[9] Mr. El-Khodr argued that this court, in the Assignment Appeal, did not order the “assignment of Mr. El-Khodr’s entitlement of medical and rehabilitation benefits” as it assigned only part of those benefits and, as such, the second precondition to the transfer of funds was not satisfied. The application judge rejected this approach and held that the conditions set out in the Minutes of Settlement were met. She therefore ordered that the $385,000 amount in the Settlement Agreement be released to Northbridge.

[10] Mr. El-Khodr appeals the application judge’s order to transfer the $385,000 to Northbridge.

[11] For the reasons that follow, I would dismiss the appeal.

Background

[12] The issue on this appeal is whether the application judge made a palpable and overriding error of fact or an extricable error of law in failing to properly construe the preconditions for payment to Northbridge in the Minutes of Settlement.

[13] In order to assess whether the application judge erred in her interpretation of the Minutes of Settlement, it is necessary to understand (a) the available approaches to the assignment of the SABs benefits, (b) the background facts and terms of the Minutes of Settlement (c) the decision of this court on the Assignment Appeal and (d) the reasons of the application judge.

A. The Available Approaches to the Assignment of SABs

[14] In Ontario, Statutory Accident Benefits Schedule, O. Reg. 34/10, under the Insurance Act, enables parties injured in an automobile accident to receive no-fault first-party benefits while at the same time suing the at-fault driver in tort.

[15] Because of the overlap between the compensation provided pursuant to the SABs and the damage awards, s. 267.8 of the Insurance Act provides that the tort award must be reduced by corresponding categories of SABs received. Section 278.8(12) addresses the assignment of SABs payable after trial and provides 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,

(i) for statutory accident benefits in respect of income loss or loss of earning capacity,

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

(iii) under a sick leave plan arising by reason of the plaintiff’s occupation or employment,

(iv) for statutory accident benefits in respect of expenses for health care,

(v) under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and

(vi) for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care….

[16] As noted above, the benefits to be assigned are described in the Act only in broad categories: income loss, loss of earning capacity, and expenses that have been or will be incurred for health care or other pecuniary loss.

[17] Until the decisions in Carroll v. McEwen, 2018 ONCA 902, 143 O.R. (3d) 641, and Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, leave to appeal to refused, [2019] S.C.C.A. No. 63, courts applied two different methods to address the overlap between damages awarded and SABs received: (a) the “apples-to-apples” or “strict matching” approach, which required temporal and qualitative matching of SABs to specific heads of tort damages; and, (b) the “silo” approach, which only includes three broad categories of SABs under the Insurance Act: income replacement benefits, health care benefits, and other pecuniary losses. Under the “silo” approach, tort damages are only required to match generally with a corresponding SABs category.

[18] In Carroll and Cadieux, companion appeals, a five-member panel of this court adopted the “silo” approach to the treatment and matching of SABs to tort damages under section 267.8 of the Insurance Act. The panel held that the “strict matching” approach, developed in Bannon v. McNeely (1998), 38 O.R. (3d) 659 (C.A.), was no longer to be followed. One of the stated benefits of the silo approach was that it would promote greater efficiency in motor vehicle accident litigation.

[19] Carroll and Cadieux were rendered after the Assignment Appeal was decided in September 2017.

B. Background Facts and Terms of the Minutes of Settlement

The Tort Claim

[20] In January 2007, the tortfeasor’s vehicle rear-ended a two-truck driven by Mr. El-Khodr, who suffered serious injuries. He brought an action against the driver and owner of the vehicle.

[21] Liability for the collision was not at issue by the time of trial, which proceeded before a jury. The parties asked the jury to assess the tort damages “in respect of the following categories”: (i) past loss of income; (ii) general damages for pain and suffering and loss of enjoyment of life; (iii) future loss of income; and (iv) future care costs.

[22] Mr. El-Khodr was awarded global damages in the amount of $2,850,977.80.

[23] The amounts awarded for future care costs included (i) future attendant care costs/assisted living in the amount of $1,450,000; (ii) future professional services, such as physiotherapy and psychology, in the amount of $424,550; (iii) future housekeeping and home maintenance services in the amount of $133,000; and (iv) future medication and assistive devices in the amount of $82,429.

[24] The damages were paid in full on August 10, 2015.

[25] After the verdict, the trial judge made a series of rulings addressing, among other things, the assignment of SABs: see El-Khodr v. Lackie, 2015 ONSC 5244, 79 C.P.C. (7th) 356.

[26] She held that income replacement and attendant care benefits payable by Royal to Mr. El-Khodr be assigned to the tortfeasors’ insurer, Northbridge, for specified periods, and that housekeeping benefits be assigned to Northbridge until the SABs received equalled the amount of the jury award. No SABs relating to future professional services and medications and assistive devices were assigned. In denying the assignment of these benefits, she reasoned that benefits should be assigned only if it is absolutely clear that the plaintiff’s entitlement to such benefits is certain and that the plaintiff received compensation for the same benefits in the tort judgment, citing Gilbert v. South, 2014 ONSC 3485, 120 O.R. (3d) 703, at para. 9. She found that “the Defendants are now unable to meet their onus to demonstrate that the jury award compensated the Plaintiff for the same loss in respect of which the Defendants now claim an assignment of benefits.”

Northbridge’s Appeal

[27] As discussed above, Northbridge appealed the trial judge’s rulings respecting the assignment of benefits to this court. In its Supplementary Notice of Appeal, Northbridge claimed “a total assignment of future SABS payable” to Mr. El‑Khodr from his insurer, including all SABs payable for future healthcare expenses that the trial judge had denied. Northbridge argued that the approach taken by the trial judge effectively allowed double recovery and took the position that the “silo” approach to the assignment of accident benefits should be taken.

[28] Mr. El-Khodr took the position that the matching approach should be followed and that “[t]he trial judge granted the assignments which she was able to match with the jury verdict, and denied those which she could not match for each collateral benefit listed in Section 267.8 of the Insurance Act”. This was in accordance with the approach adopted by this court in Bannon v. McNeely.

The Minutes of Settlement

[29] After the Assignment Appeal was argued in April 2017 but before the decision was rendered in September, Mr. El-Khodr was scheduled to proceed to arbitration before the Financial Services Commission of Ontario against Royal in relation to attendant care benefits and a rent subsidy. The value of the rent subsidy in dispute was estimated at $50,468. Northbridge was added as an interested party by virtue of its standing as assignee of the attendant care benefits.

[30] On June 30, 2017 counsel for Mr. El-Khodr sent two emails to opposing counsel which read as follows:

To be clear, we are not asking Northbridge to forfeit its appeal. On the contrary, the outcome of the appeal determines who gets the monies that you are going to be holding in trust. We do, however, expect these Minutes to settle all issues between Northbridge and [Mr. El-Khodr] going forward.

[A]s this settlement is intended to resolve all outstanding issues between the parties, subject only to the outcome of the appeal, I'm not sure how this comes out of left field for Northbridge. This was the point of the “winner take all” figures that we had agreed upon. [Emphasis added.]

[31] Later that day, the Minutes of Settlement were signed with Mr. El-Khodr’s accident benefits’ insurer, Royal, which addressed medical and rehabilitation benefits.

[32] Paragraph 4 of the Minutes of Settlement reads as follows:

The sum of $385,000.00, payable under paragraph 3 hereof, shall be payable to [Northbridge’s counsel] HUGHES AMYS LLP IN TRUST for the benefit of both Applicants herein, pending release of the decision of the Court of Appeal for Ontario in El-Khodr v. Lackie, court file number C60918, which appeal was argued on April 4, 2017, decision reserved. The following applies upon receipt of the Court of Appeal’s decision:

(a) in the event that the appeal with respect to Justice Roccamo’s refusal to grant an assignment of medical and rehabilitation benefits to Northbridge is dismissed by the Court of Appeal, the sum of $385,000.00 held in trust by HUGHES AMYS LLP shall be released forthwith to Mr. El-Khodr, by cheque made payable to [Mr. El-Khodr’s counsel] CONNOLLY OBAGI LLP IN TRUST;

(b) in the event that the said appeal is allowed and an assignment of Mr. El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge, the sum of $385,000.00 held in trust by HUGHES AMYS LLP shall be released forthwith to the Applicant, Northbridge.

C. Disposition of the Assignment Appeal

[33] This court rendered its judgment in the Assignment Appeal on September 19, 2017. The court allowed the appeal, and amended the trial judge’s order so that Royal’s future payments to Mr. El-Khodr for medication and assistive devices up to a total of $82,429.00 (i.e., the amount the jury had awarded for medication and assistive devices) and future payments for specified professional services up to a total of $424,550.00 (i.e., the amount the jury had awarded for professional services) be assigned to Northbridge.

[34] In so doing, MacFarland J.A. held, at paras. 60-61 and 75-80, that:

The court is required only to match statutory benefits that fall generally into the “silos” created by s. 267.8 of the Insurance Act with the tort heads of damage. Income awards are to be reduced only by SABs payments in respect of income loss and health care awards only by SABs payments in respect of health care expenses. The latter item is, I suggest, deliberately broad enough to cover all manner of expenses that relate to health care and would include medications, physiotherapy, psychology sessions, assistive devices and the like. All manner of other expenses that are covered by SABs and that do not fall under the income category or the health care category fall into the “other pecuniary losses” category.

[A]lthough the legislation requires us to match apples with apples, the relevant categories of “apples” are the statute’s categories, not the common law’s….

All of the claims in this case that make up the awards for future professional service and future medication and assistive devices were itemized sufficiently and all were covered by the SABs schedule. They were claimed from the date of trial to the end of the respondent’s life – the same period that the SABs will cover. The Cost of Future Care schedules on which the respondent advanced his case before the jury and that were made exhibits, set out the respondent’s claims in detail.

This was not a lump sum award for future care. The jury awarded an amount for future attendant care/assisted living, a separate amount for future professional services and separate amounts for future housekeeping/home maintenance and for future medication and assistive devices.

The respondent did not recover all of the amounts that he had claimed. For example, he advanced a claim for the cost of future professional services in the amount of $637,125 and the jury awarded $424,550.

But it is for the jury to say what the proper amount of compensation is for a plaintiff. And once the judgment based on that award is paid, a plaintiff has been fully compensated for his loss. This plaintiff was paid the full amount of his judgment on August 10, 2015, and has, therefore, been fully compensated in respect of all his losses arising from this motor vehicle accident.

If there is no trust or assignment in respect of the SABs to which he will be entitled and which he will receive in the future for medication, assistive devices and professional services, he will be over-compensated and his receipt of any such benefits with no obligation to account to the tort insurer will constitute double recovery – a result this legislative scheme was specifically designed to avoid.

In my view, the trial judge erred in not ordering that there be an assignment in relation to the awards for the cost of future medication and assistive devices and future professional services. I would set aside paragraphs 3 and 4 of the trial judge’s order of August 26, 2015 and in their place order that any amounts for future medication and assistive devices payable by RSA Insurance to the respondent be assigned to Northbridge Commercial Insurance Corporation until the sum of $82,429 has been received; and that any amounts for future professional services payable by RSA to the respondent for psychological, physiotherapy, occupational therapy, massage therapy, kinesiology/personal training, case management services, and travel to medical or other specialist be assigned to Northbridge Commercial Insurance Corporation until the sum of $424,550 has been received.… [Emphasis in original omitted. Emphasis added]

[35] In arriving at this conclusion, she held, at para. 35, that, “strict qualitative and temporal matching requirements should not be applied to s. 267.8” and the court should instead “match benefits that will be received after trial to the broad, enumerated statutory categories only in a general way”.

[36] After the Assignment Appeal was rendered, the appellant brought an application to the Superior Court to interpret para. 4 of the Minutes of Settlement in light of this court’s decision.

D. The Application Judge’s Order

[37] On the application, Mr. El-Khodr took the position that the $385,000 held in trust did not need to be paid to either himself or Northbridge in its entirety. Although he conceded that he did not win the appeal, he argued that para. 4(b) of the Minutes of Settlement did not apply because this court ordered that only some, but not all, of his future medical and rehabilitation benefits were assigned to Northbridge.

[38] The application judge recognized that, at the time of the Assignment Appeal, there were two lines of authorities with respect to the assignment of accident benefits: the “matching” approach which requires that the tort award match the benefits sought to be assigned and the “silo” approach that requires no matching but simply that the benefits fall within the category of benefit, in this case, the health care category. She held at paras. 27 to 35 of her reasons that,

I take Mr. El-Khodr’s point that Northbridge’s supplementary notice of appeal requested “a total assignment of future SABS benefits” and that Northbridge’s appeal factum said that it was seeking “an Assignment of all future ‘health care expenses’…” While more precision might have been applied to both phrases, it is evident from reading the two documents in their entirety that Northbridge was appealing the trial judge’s refusal to grant Northbridge an assignment of Mr. El-Khodr’s entitlement to future benefits for medication and assistive devices and for professional services, the benefits referred to in paragraphs 3 and 4 of the trial judge’s order.

When the minutes of settlement were prepared and signed in June 2017, the scope of the appeal as it related to the assignment issue was not a mystery to the parties. The appeal had already been argued. The parties knew that if Northbridge was successful on the appeal, it would be awarded assignments of the future medical and rehabilitation benefits to which the trial judge, in paragraphs 3 and 4 of her August 26, 2015 order, had held it was not entitled.

Mr. El-Khodr made the point that his $385,000.00 settlement of June 30, 2017 included amounts for benefits that were not ultimately assigned to Northbridge by the Court of Appeal, including a rent subsidy. He argued that it would be unfair for Northbridge to receive the entire amount of the settlement when the assignment it was granted by the Court of Appeal was related only to certain specified benefits.

I do not accept this argument because, as I have already observed, Mr. El-Khodr was aware of the scope of the appeal when he signed the minutes of settlement. Mr. El-Khodr also knew, when he signed the minutes of settlement, that the winner of the appeal would receive the entire amount of the settlement. This is evident from the wording of the minutes of settlement and also from an email exchange dated June 30, 2017 between Mr. El-Khodr’s lawyer and the lawyer who was then representing Northbridge ….

In terms of fairness, as MacFarland J.A. observed at para. 78 of the Court of Appeal’s decision, Mr. El-Khodr was paid the full amount of his judgment in August 2015 and was therefore fully compensated in respect of all of his losses arising from his motor vehicle accident. Further, the amount the jury awarded, and that Northbridge paid to Mr. El-Khodr, for future medication and assistive devices ($82,429.00) and future professional services ($424,550.00) exceeded the amount of the $385,000.00 settlement by $121,979.00.

For these reasons, I also reject Mr. El-Khodr’s argument that paragraph 4 of the minutes of settlement was frustrated by the outcome of the appeal.

[39] The application judge concluded that, “Northbridge was wholly successful on the appeal.” The application judge therefore decided that the $385,000 attributable to Mr. El-Khodr’s medical and rehabilitation benefits paid by Royal should be released to Northbridge.

The Positions of the Parties on This Appeal

[40] Mr. El-Khodr renews his argument that the Assignment Appeal did not trigger the payment of $385,000.00 to either party because both conditions in the Minutes were not met: (a) Northbridge’s appeal was allowed, but (b) the assignment of all future medical and rehabilitation benefits to Northbridge was not granted. Mr. El-Khodr submits the provision in the Minutes of Settlement was therefore frustrated.

[41] Mr. El-Khodr claims the application judge’s determination rendered the second precondition meaningless and, in doing so, she committed an extricable error of law. Moreover, he claims the finding that Northbridge received what it sought on appeal constitutes a palpable and overriding error of fact. Mr. El-Khodr therefore seeks an order that the remaining settlement monies be apportioned in accordance with the value of the SABs assigned and not the value of all SABs both assigned and not assigned in the Assignment Appeal.

[42] Northbridge does not dispute that it was seeking a total assignment of all “health care expenses” and advocating for the “silo” approach. However, Northbridge submits that the request for “a total assignment of future SABS benefits payable to the Plaintiff by [Royal]” in the relevant notice of appeal was only in respect of the trial judge’s refusal to award an assignment of future entitlement to medical benefits specifically for future medication and assistive devices and professional services. There were no other medical and or rehabilitation benefits that could possibly have been assigned to Northbridge pursuant to the judgment below and the issues raised on appeal. On this basis, the conditions set out in para. 4(b) of the Minutes of Settlement were met and properly given effect by the trial judge.

Standard of Review

[43] The issue in this appeal turns upon the interpretation of a contract. The appellant must establish a palpable and overriding error of fact or an extricable error of law. Such errors include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 52-53.

[44] The court must interpret the contract as a whole and assign meaning to its terms. The Court must avoid rendering one or more of those terms ineffective. To do so, constitutes an extricable error of law justifying appellate intervention. Environs Wholesale Nursery LTD. v. Environs Landscape Contracting LTD., 2019 ONCA 547, at para 44; 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, 150 O.R. (3d) 83, at para. 34; Angus v. Port Hope (Municipality), 2017 ONCA 566, 28 E.T.R. (4th) 169, at paras. 66-67 and 109-110, leave to appeal refused, [2017] S.C.C.A. No. 382.

Analysis and Conclusion

[45] The issue on this appeal is whether the application judge made a palpable and overriding error of fact or an error of law in interpreting the words in the Minutes of Settlement: “in the event that the said appeal is allowed and an assignment of Mr. El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge”.

[46] In my view, the application judge was correct to hold that the terms of the Minutes of Settlement were satisfied and the contract was not frustrated because:

a) Although Northbridge spoke of “an Assignment of all future ‘health care expenses’” in its factum, the only issue on the Assignment Appeal was the assignment of Mr. El-Khodr’s entitlement to future benefits for medications and assistive devices and for professional services, referred to in paras. 3 and 4 of the trial judge’s order. These were the only benefits at issue on appeal. The words “entitlement to medical and rehabilitation benefits” in the Minutes of Settlement must be interpreted in this context;

b) The parties understood, when the Minutes of Settlement were signed, that as a result of the Assignment Appeal, these benefits would either be assigned to Northbridge or the trial judge’s decision not to assign these benefits would be upheld;

c) This court amended the trial judge’s order denying the assignment of these benefits and replaced paras. 3 and 4 with a paragraph “ordering that any amounts for future medication and assistive devices” and “any amounts for professional services benefits” (emphasis added) as enumerated, up to the amount of the jury awards, be assigned. This court also held that only the categories set out in the statute need be matched;

d) Although Mr. El-Khodr submitted to the application judge that the $385,000 amount in the Minutes of Settlement included a rent subsidy in the amount of $50,468 which was not covered by these benefits, Mr. El-Khodr was aware (a) that this was a full and final settlement subject only to the outcome of the Assignment Appeal and (b) the Assignment Appeal was only in respect of future medication and assistive device and professional services. This understanding is also reflected in his counsel’s email communications with opposing counsel; and,

e) Contrary to the suggestion made by counsel for Mr. El-Khodr, the application judge did not order the assignment of all settlement amounts for these benefits. She only assigned medical and rehabilitation benefits in the amount of $385,000 as per the Minutes of Settlement.

Mr. El-Khodr was awarded and paid $82,429 for future medication and assistive devices and $424,550 for professional services before the settlement was reached. Those sums exceed the $385,000 settlement amount for medical and rehabilitation benefits set out in the Minutes of Settlement by $121,979.

[47] For these reasons, I do not agree with the appellant’s argument that the outcome of the Assignment Appeal was not contemplated by the parties at the time they entered the Minutes of Settlement and, thus, the settlement agreement was frustrated.

[48] The application judge’s interpretation is consistent with the reasoning of this court on the Assignment Appeal. When assigning the medication and assistive devices and professional services benefits to Northbridge up to the amount of the jury award, this court recognized, at paras. 78-79, that:

[I]t is for the jury to say what the proper amount of compensation is for a plaintiff. And once the judgment based on that award is paid, a plaintiff has been fully compensated for his loss. This plaintiff was paid the full amount of his judgment on August 10, 2015, and has, therefore, been fully compensated in respect of all his losses arising from this motor vehicle accident.

If there is no trust or assignment … he will be over-compensated and his receipt of any such benefits with no obligation to account to the tort insurer will constitute double recovery – a result this legislative scheme was specifically designed to avoid.

[49] Moreover, the panel hearing the appeal in this case in 2017, held that “strict qualitative and temporal matching requirements should not be applied” in deciding which benefits to assign, the relevant categories are “the statute’s categories not the common law’s” and the strict matching approach in Bannon v. McNeely “may no longer be good law in this province”.

Disposition

[50] For these reasons, I find the application judge did not fail to take into account a precondition in the Minutes of Settlement and thereby make an error of law, nor did she make a palpable and overriding error of fact in construing the preconditions for payment to Northbridge in the Minutes of Settlement. I would therefore dismiss the appeal.

[51] In accordance with the agreement reached by the parties, costs of the appeal to the respondent in the amount of $7,500.

Released: June 21, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. S.E. Pepall J.A.”