Apples to apples no more: Court of Appeal clarifies the proper approach to deducting collateral benefits in Ontario MVA claims

Publication December 2018

Two recently released decisions from the Ontario Court of Appeal address the intersection of tort damages and statutory accident benefits under Ontario’s Insurance Act1. The court determined that the strict matching approach – which had long been the law in Ontario – should no longer be applied when deducting SABs from tort awards in motor vehicle accident litigation.

Background

Ontario’s motor vehicle accident compensation scheme offers statutory accident benefits (SABs) to anyone involved in a motor vehicle accident, regardless of who is at fault. Additionally, injured people can pursue a civil action for damages in certain cases. In many cases, however, there is overlap between the two streams of compensation.

Section 267.8 of the Insurance Act addresses the overlap and aims to prevent double recovery by injured persons in three different ways:

  • First, SABs received before trial are to be deducted from the tort award;2
  • Second, certain categories of SABs received after trial are to be held in trust by the plaintiff and paid to the tortfeasor or the tort liability insurer in the same proportion they paid the tort damages awarded at trial;3 and
  • Third, courts have the discretion to order that the plaintiff assign his or her right to future SABs payments to the tortfeasor or the tort liability insurer.4

The issue

Over the last several decades, two different methods of deducting SABs from tort awards emerged in the case law.

The strict matching approach (also called the “apples to apples” approach), endorsed by the Court of Appeal in Bannon v McNeely5, requires temporal and qualitative matching of SABs to the specific heads of tort damages awarded at trial, or as stated by the court in Bannon: “Apples should be deducted from apples and oranges from oranges.”

Under the silo approach, courts are required to compare the tort award with the three broad statutory categories or “silos” set out in the Insurance Act: income replacement benefits, health care benefits and other pecuniary losses. Under the silo approach, the tort award is set off against SABs within each of the three silos, but no further matching is required.

The choice of approach has practical consequences. For example, the strict matching approach has led courts to conclude that if the jury awarded a global amount for future care without subdividing the award into particular items of future care, then there was no way to conduct the strict matching exercise and therefore, no deduction could be made.6

The Ontario Court of Appeal

A five-member panel of the Court of Appeal was composed to consider whether the strict matching principle of collateral benefits was still good law in Ontario, or if the less strict matching provided by the silo approach should be preferred. The appeals, both pedestrian-motor vehicle accident cases, required the panel to grapple with the same question from two different angles: Cadieux v Cloutier7 dealt with the deduction of SABs received before trial, while Carroll v McEwen8 concerned the assignment of future SABs to the tort liability insurer.

The court determined the silo approach should apply. Since Bannon was decided, the legislation has changed significantly and the present statutory language does not support matching at a more particular level than the three silos set out in the Insurance Act. The court concluded that the silo approach is fair to plaintiffs, defendants and insurers, and promotes efficiency in motor vehicle accident litigation by disposing of the more cumbersome matching process.

The court observed that the strict matching approach had encouraged plaintiffs to develop formalistic legal strategies to insulate certain amounts from deduction, which distracted from the central inquiry of double recovery.

Conclusion

The Carroll and Cadieux decisions inject more certainty and predictability into the process of deducting SABs from tort awards, and will therefore allow insurers and their counsel to better assess risk in motor vehicle accident litigation. The court’s decisions also bring to an end the strategic use of the strict matching approach by claimants’ counsel. 


Footnotes

1

RSO 1990, c I.8.

2

Ibid, ss 267.8(1), (4) and (6).

3

Ibid, ss267.8(9) and (10)

4

Ibid, ss 267.8(12).

5

38 OR (3d) 659 (CA).

6

See, for example, Gilbert v South, 2015 ONCA 712.

7

2018 ONCA 903.

8

2018 ONCA 902.


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