Considerations to make when choosing your Ontario accident benefits

In this post, personal injury lawyer, Lisa Belcourt offers comment on a recent Ontario Court of Appeal decision surrounding deductions from an insurance claim, based on the type of benefits chosen by the accident victim.

Considerations to make when choosing your Ontario accident benefits

After a car accident, the process of electing weekly benefits (income replacement benefits, caregiver benefits and non-earner benefits) can be a daunting one.  Insureds and their lawyers need to be aware of the consequences of choosing one type of benefit over another.

The following considerations should be made:

• Future impact on accident benefits claims
• The interface of those benefits with the social welfare benefits
• Implications on an award of damages should a lawsuit be commenced.

Ontario Court of Appeal provides clarity for Ontario personal injury lawyers with recent decision

Thankfully, the Ontario Court of Appeal has recently overturned the lower court decision in Sutherland v. Singh, 2011 ONCA 470, and provided some clarity for litigators who practice personal injury law.

In Sutherland, the plaintiff had claimed Statutory Accident Benefits (SABS) from his own insurance company and elected to receive caregiver benefits (CGBs) as opposed to income replacement benefits (IRBs).  He also started a lawsuit against the at-fault driver for, amongst other things, lost income.

Making the choice – Care Giver Benefits or Income Replacement Benefits?

The defendant insurance company argued that it was entitled to deduct the IRBs from the plaintiff’s claims for lost income.  The lower court agreed, holding that because the plaintiff had made a choice (“an election”) to receive CGBs over IRBs from his SABS insurer, the IRBs were technically “available” to him and were, therefore, to be deducted from lost income damages.

The Court of Appeal has, thankfully, disagreed, finding that the IRBs were no longer “available” to the plaintiff once he made the election.  As the SABS stipulate that a person can only receive one type of benefit, it would be unfair to allow the defendants to reduce damages by an amount that the plaintiff had never actually received.