COURT FILE NO.: 1240/19
DATE: 09/27/2024
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Ferreira
AND:
Matthew Hopper and Cassie Hopper
BEFORE: Justice E. ten Cate
COUNSEL: A. Birch, for the Plaintiff
C. Ross and J. Larovere, for the Defendants
HEARD: September 9-24, 2024
reasons on motion re: collateral benefits
TEN CATE, J.:
Introduction
[1] The Plaintiff, Jason Ferreira, was involved in a motor vehicle accident on October 24, 2017. The specifics of his injuries are not important for the purpose of this motion, however, the experts agreed at trial that he suffered soft tissue injuries to his neck, mid, and low back.
[2] Liability for the accident was admitted prior to trial. The only issue during this jury trial was the damages, if any, to which the Plaintiff was entitled.
[3] On September 24, 2024, the jury returned a verdict with the following awards:
Non-pecuniary general damages $25,000
Past loss of income $100,000
Future loss of income $0
Future medical and rehabilitation $4,000
Future housekeeping expenses $0
TOTAL DAMAGES $129,000
[4] In my view, the jury’s awards were supported by the evidence led at trial.
[5] The Plaintiff received the Canada Emergency Response Benefit (CERB) and the Canada Recovery Benefit (CRB). To calculate the final award, it is necessary to determine whether those benefits received are deductible pursuant to s. 267.8(1)2 of the Insurance Act, R.S.O. 1990, c. I. 8.
[6] The parties brought this motion for directions which was argued while the jury deliberated.
Analysis
[7] It is trite law that the purpose of tort law is to restore a plaintiff to the position he or she would have been in had the negligent act or omission not occurred, in so far as money can do so. However, a plaintiff is entitled to recover the full extent of his loss, but no more. This is known as the rule against “double recovery”.
[8] At common law, payments received under an insurance policy were not deducted from tort awards, even if it resulted in over-compensation of the plaintiff. As part of Ontario’s legislative regime intended to lower automobile insurance premiums, various amendments were made. The Insurance Act provides that certain collateral benefits are deducted from damages to which a plaintiff is entitled for income loss and loss of earning capacity, thereby overriding the common law.
[9] The relevant portion of s. 267.8, dealing with income loss and loss of earning capacity states as follows:
267.8 (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:
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.
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.
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. (Emphasis added).
[10] In order to prove deductibility under section 268.8(1)2 of the Insurance Act, the Defendants must establish that the CERB and CRB payments are (1) “for income loss or loss of earning capacity”; and (2) that they were “in respect of an incident”.
[11] In oral argument, counsel for the Plaintiff conceded that the CERB and the CRB were intended to be income replacement that those payments were “for income loss or loss of earning capacity” consistent with the Supreme Court of Canada’s reasoning in M.B. v. British Columbia, 2003 SCC 53. However, he submits that these payments were not “in respect of an incident” and therefore not deductible.
[12] Counsel for the Defendants submits that the payments were “in respect of an incident” and are therefore deductible.
[13] There are no cases directly on point in Ontario.
[14] In Balint v. Lewandowski, 2021 BCSC 1316, the Supreme Court of British Columbia deducted CERB payments in the context of a motor vehicle accident. The court in Balint cited Cantrill v. Taylor, 2021 BCSC 764, at para. 25. In both cases counsel agreed the deduction was appropriate under British Columbia legislation, but neither contains an analysis of the applicable B.C. legislation. I therefore do not find those cases helpful in interpreting Ontario legislation.
[15] I was also referred to Fogelman v. IFG, 2021 ONSC 4042, which a constructive dismissal action. In that case Vella J. declined to deduct the CERB income support payments received by the plaintiff from the damages awarded. However, the case was not decided in a motor vehicle context which involves specific mandatory post-trial statutory deductions pursuant to s. 268.8(1)2 of the Insurance Act. I therefore do not find it helpful.
[16] Counsel for the Plaintiff referred me to a reconsideration decision at the Licence Appeal Tribunal of Ontario, Foster v. Aviva Gen Ins. Co., 2021 ONLAT 19-014657. In that case, the arbitrator found that both the CERB and the CRB were deductible from the Income Replacement Benefit payable under the Statutory Accident Benefits Schedule, O.Reg. 34/10l. Vice-Chair Boyce granted the reconsideration, noting that counsel had agreed it was an error of law for the tribunal to determine that CRB/CERB is deductible under the Schedule.
[17] Decisions of the LAT are not binding on this court.
[18] In my view, Foster is not applicable because it involved the interpretation of ss. 4(1) and 7(3)(a) of the Schedule as opposed to s. 268.8(1)2 of the Insurance Act. Sections 4(1) and 7(3) contain the definitions and mathematical method used to calculate the Income Replacement Benefit (IRB) under the statutory accident benefits regime. As Vice-Chair Boyce pointed out at para. 10 of the decision in Foster, the IRB is “directly connected to, and calculated with respect to, an insured’s pre-accident earnings”.
[19] Although Section 268.8(1)2 of the Insurance Act provides a list of deductions to be made after a finding has been made with respect to income loss or a loss of earning capacity, its purpose is not to provide a method to calculate a particular benefit based upon the Plaintiff’s pre-accident earnings.
[20] The Canada Emergency Response Benefit (CERB) provided financial support to employed and self-employed Canadians who were directly affected by COVID-19. Applicants received $2,000 for a four-week period ($500 per week) between March 15 and September 26, 2020.[^1]
[21] The Canada Recovery Benefit (CRB) provided financial support to employed and self-employed Canadians who were directly affected by COVID-19 and were not entitled to Employment Insurance benefits. Depending on when one applied, applicants received either $1,000 or $600 for a two-week period, between September 27, 2020, and October 23, 2021.[^2]
[22] To qualify for the CERB, an applicant was required to earn a minimum of $5,000 before taxes in the previous twelve months, or in 2019. According to the Government of Canada website, one must also satisfy one of four conditions, including that one’s “hours were reduced due to COVID-19” or that one “stopped working due to COVID-19”.
[23] To qualify for the CRB, an applicant was required to show they were not employed for reasons related to COVID-19, they experienced a 50% reduction in one’s average weekly income compared to the previous year due to COVID-19, they did not apply for or receive other benefits such as Employment Insurance, they “did not quit their job or reduce their hours voluntarily on or after September 27, 2020, unless it was reasonable to do so”, and they did not “turn down reasonable work during the two-week period applied for”.
[24] The Plaintiff’s 2020 income tax return (which was made an exhibit at trial) reveals that he received $14,000 for the CERB and $5,000 for the CRB. The court was not provided with the full income tax return for 2021, but I am advised the Plaintiff received a total of $19,600 in “other income” in that year comprised of CRB payments.
[25] Counsel for the Plaintiff relies upon Grajqevci v. Rustaie, 2017 ONSC 2535. In that case, this court decided that payments made to the plaintiff pursuant to the Ontario Works Act, 1997, S.O. 1997, c. 25 Sched. A. and the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25 Sched. B were payments “for income loss or loss of earning capacity under the laws of any jurisdiction”, but they were not made “in respect of the incident”. Accordingly, they were not deductible pursuant to s. 267.8(1)2 of the Insurance Act.
[26] In my view, Grajqevci, is distinguishable because the court determined that the plaintiff in that case received those benefits because of his disability caused by chronic HIV, as opposed to injuries sustained in a motor vehicle accident.
[27] In our case, Mr. Ferreira testified that he was off work from the day of the accident on October 24, 2017, until September of 2019. He worked until November of 2019 and then went off work again until May 2022. He continues to work to this day.
[28] To be eligible for the CERB the Plaintiff must have experienced a reduction in hours or stopped working due to COVID-19 as opposed to any other reason, including disability caused by the motor vehicle accident. To continue to receive the CRB, he must represent that he did not quit his job or reduce his hours voluntarily on or after September 27, 2020, unless it was reasonable to do so, again due to COVID-19. In other words, to qualify and maintain eligibility for these benefits, the Plaintiff must have been otherwise able to work during the period for which benefits were available.
[29] At no point during trial did Mr. Ferreira concede that any portion of his absence from work was due to any reason other than his inability to work because of the car accident. Given his evidence at trial, he cannot now reframe his theory of income loss post-verdict to avoid deductions.
[30] For reasons that can never be revealed, the jury rendered a verdict for past income loss of $100,000 which covers the entire period from October 24, 2017, until trial commenced on September 9, 2024. Although the CERB and CRB were received by the Plaintiff during that timeframe, the jury was specifically instructed in my charge not to deduct any benefits.
Disposition
[31] I therefore determine that the total amount of the CERB and CRB received by the Plaintiff is deductible from the jury’s award of $100,000.
[32] Should the parties be unable to agree the final judgment, including costs, they may request a further date for hearing before me through the Trial Co-Ordinator. In view of the jury’s verdict, I will not render a decision with respect to the threshold unless requested.
Justice E. ten Cate
Date: September 27, 2024
[^1]: Government of Canada: https://canada.ca/en/revenue-agency/services/benefits/apply-for-cerb-with-cra.html
[^2]: Government of Canada: https://www.canada.ca/en/revenue-agency/services/benefits/recovery-benefit.html