Nemchin v. Green: The Deduction of Collateral Benefits at Trial

August 13, 2018 | Chris T.J. Blom

The plaintiff was injured in a car accident in 2010. The trial in 2017 led to a jury verdict of $125,000 in general damages and $600,000 in future loss of income. The plaintiff did not seek an award of past loss of income.

The defendant sought an order from the trial judge in the form of an assignment of the long-term disability (“LTD”) benefits which were still being paid to the plaintiff at the time of the trial, in accordance with s.267.8(12) of the Insurance Act (Ontario).

The plaintiff argued that the defendant was not entitled to the assignment as the defendant refused to permit a question to go to the jury which would allow the court to understand the annual loss of income and the number of years over which the jury awarded it. In the absence of an answer to this question, argued the plaintiff, it would not be possible to match, on a temporal basis, the LTD benefits received over time against a specific annual income.

Justice Corthorn observed that the purpose of the assignment was to prevent the plaintiff from achieving double recovery, while ensuring that she was fully compensated. The onus, she noted, was on the defendant to prove the entitlement to the assignment.

There was no need to match the LTD income to an annual amount. Matching is required when the benefits relate to past and future loss of earnings, but there was no past loss of income claim in this case.

There was no need for the jury to answer a question which allocated the income on an annual basis. It was sufficient for the jury to award a lump sum amount. Moreover, there was no risk that the plaintiff would be undercompensated if the assignment was granted.

The plaintiff argued, further, that the assignment should only run to age 60 on the theory that she would have retired by that age. The court rejected this approach as the evidence of the economic loss expert used scenarios for the loss of income to age 65 and 70.

Corthorn J. therefore ordered that the plaintiff hold the LTD benefits received after the date of trial in trust for the defendant, to be paid, net of tax, until the age of 65 or until the full amount of the award of future loss of income is paid.

Nemchin v. Green: 2018 ONSC 2185.


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