Trial judge was in best position to assess whether there was any overlap between short term disability benefits and income loss award

Parties were involved in motorcycle accident in July 2012. At trial, jury awarded plaintiff damages of $50,000 for general damages, $61,000 for past lost income and $90,000 for future lost earnings. Trial judge found plaintiff’s claim did not meet threshold to fall within exception in s. 267.5(5) of Insurance Act (Act) and therefore disallowed general damages award. Trial judge considered adjustments to balance of jury’s award pursuant to Act based on receipt of other payments. Trial judge deducted long-term disability benefits and net past lost income from jury’s award and also deducted $33,821.77 for income replacement benefits and in doing so, accepted position that further sum of $2,887.94, which had also been paid, should not be included in collateral benefits deduction as it arose from overpayment by insurer and plaintiff was legally obliged to repay amount under s. 52(1) of Statutory Accident Benefits Schedule. Trial judge also refused to deduct $5,460 in short-term disability benefits paid for May to July 2017 period. Claim form submitted was based claim on injury to left shoulder. Trial judge had instructed jury that damages resulting from injuries to plaintiff’s shoulder were not caused by 2012 motorcycle accident and made similar finding in his threshold decision as he found it was unlikely that there was any overlap between jury’s award and short-term disability payments and therefore, they were not deductible under s. 267.8(1) of Act. As result of trial judge’s deductions, plaintiff’s judgment totaled $72,317.78 which exceeded defendants’ R. 49 of Rules of Civil Procedure (Rules) offer of $70,000 and received costs award for entire action. Defendants’ appealed. Appeal dismissed. Trial judge did not err in determining that short-term disability benefits should not have been deducted from jury’s award. Trial judge referred to his instruction that any damages resulting from plaintiff’s left shoulder injury were not caused by motorcycle accident and to his conclusion on threshold motion that left shoulder pain was not causally related to motorcycle accident. Short-term disability benefits had been paid because of plaintiff’s inability to work due to problems with his left shoulder. Trial judge reasoned that, given modest amount of jury’s award, and instructions he gave to jury, it was unlikely that there was any overlap between short term disability benefits provided for plaintiff’s left shoulder injury, and income loss awarded by jury in relation to plaintiff’s right shoulder injury. Trial judge was in best position to make this assessment, it was reasonable and entitled to deference.

Grieves v. Parsons (2019), 2019 CarswellOnt 6063, 2019 ONCA 335, Doherty J.A., David M. Paciocco J.A., and B. Zarnett J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 4389, 2018 ONSC 1905, R.E. Charney J. (Ont. S.C.J.).

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