Executive Summary: Key Legal and Evidentiary Issues

• Deductibility of the Canadian Emergency Response Benefit (CERB) from the plaintiff’s past income loss award.

• Determination of the appropriate amount of partial indemnity costs payable by the defendant to the plaintiffs.

• Assessment of the amount of assessable disbursements payable by the defendant to the plaintiffs.

• Evaluation of whether CERB payments were made “in respect of the incident” under s. 267.8(1) of the Insurance Act.

• Consideration of the plaintiffs’ obligation to repay CERB and its impact on deductibility.

• Reasonableness and recoverability of disbursements for expert reports not relied upon at trial.

Background and facts

John Sampson and Diane Sampson, as plaintiffs, commenced an action against Trevor Hitchen, the defendant, in the Superior Court of Justice – Ontario, arising from a motor vehicle accident. The plaintiffs sought damages for personal injuries, including general damages, past loss of income, future cost of care, out-of-pocket expenses, and damages for Diane Sampson. The jury awarded a gross judgment of $602,748.00, comprised of $250,000.00 for general damages, $130,000.00 for past loss of income, $167,748.00 for future cost of care, $15,000.00 for out-of-pocket expenses, and $40,000.00 for Diane Sampson’s damages. The parties agreed to deduct the following from the jury verdict: $39,890.01 for past accident benefits paid, $47,000.00 for an accident benefits settlement, $10,739.00 for CPP disability benefits, and $23,395.04 for a Family Law Act deductible.

Before trial, the plaintiffs made a formal offer to settle for $650,000.00 plus costs and disbursements, while the defendant offered $375,000.00 plus costs and disbursements. Neither party achieved a result better than their offer to settle, entitling the plaintiffs to partial indemnity costs.

Key legal and evidentiary issues

The court was asked to decide three issues: whether the CERB received by John Sampson should be deducted from the award for past income loss; the amount of partial indemnity costs payable by the defendant; and the amount of assessable disbursements payable by the defendant. The defendant argued that CERB should be deducted under s. 267.8(1) of the Insurance Act, while the plaintiffs argued that CERB was not paid “in respect of the incident” and that John Sampson may be required to repay the benefit. The court also considered the reasonableness of the plaintiffs’ claimed legal fees and disbursements, including costs for expert reports not ultimately relied upon at trial.

Discussion of policy terms and statutory clauses

The court analyzed s. 267.8(1) of the Insurance Act, which requires deduction of certain payments from damages for income loss in motor vehicle accident actions. The court also considered the Canada Emergency Response Benefit Act, specifically s. 12(1), which obliges repayment of CERB if it was received in error or as an overpayment. The court found that CERB was not paid “in respect of the incident” and was not subject to deduction under s. 267.8(1). The court also addressed the principles for awarding costs and disbursements, referencing Rule 57.01 and relevant case law.

Outcome

The court held that the $14,000.00 CERB payment received by John Sampson should not be deducted from the past income loss award. The plaintiffs were awarded partial indemnity costs in the amount of $327,700.00, inclusive of HST, and disbursements in the amount of $167,894.62. The net damages award, after agreed deductions, was $481,723.95. The total amount ordered in favor of the plaintiffs, including net damages, costs, and disbursements, was $977,318.57.