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Benefits deduction requires strict burden of proof

As seen on AdvocateDaily.com

DVOOnly in the rarest of cases will a defendant in a personal injury action be permitted to deduct the value of a future stream of accident benefits from a tort award for future pecuniary loss, Toronto critical injury lawyer Dale Orlando writes in Lawyers Weekly.

Referring to the decision of Madam Justice Darla Wilson, in Hoang v. Vincentini [2013] O.J. No. 321, Orlando says the jury assessed the damages of the injured plaintiff at just over $684,000 for future medical treatment, rehabilitation, attendant care, housekeeping and home maintenance.

“In Hoang, the defendant’s counsel sought an order reducing the award by the amount available to the injured plaintiff pursuant to the statutory accident benefits schedule,” he writes.

“As the plaintiff had been designated catastrophically impaired, had the defendant’s argument been accepted, the amounts remaining available pursuant to the schedule would have effectively reduced the defendant’s obligation to pay the jury’s award for future cost of care to zero.”

In dismissing the defendant’s motion to reduce the damages for future health care expenses, Wilson makes it clear that a defendant seeking such a deduction faces a very strict burden of proof and that a deduction will only be made if the defendant places “persuasive evidence” before the court to demonstrate that it is “patently clear” the plaintiff qualifies for the future benefits, the article says.

“In my experience, the type of proof required simply does not exist unless the plaintiff has entered into a full and final settlement of entitlement to future benefits under the schedule,” writes Orlando, partner with McLeish Orlando LLP. “This is a sensible approach when one considers who is in a better position to bear the risk of non-payment of a future benefit: a plaintiff, who has established need before a jury, or a defendant who has caused the harm.”