Court Disallows Deductions For Mandatory And Discretionary Part 7 Benefits

In Paskall v. Scheithauer, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The Plaintiff was awarded about $65,000.00 by a jury, and ICBC’S lawyer argued for deductions from this amount for mandatory and discretionary benefits. The Court rejected these submissions.

 

[11]         Some benefits are mandatory under s. 88 (1), while others are discretionary under s. 88 (2). In Li v Newson, 2012 BCSC 675 at para 14, Abrioux J. summarized some of the governing principles relevant to an application for deduction of benefits:

 

(a) the defendant bears the onus of proving that the plaintiff is entitled to the benefits which the defendant seeks to deduct ;

(b) strict compliance with the statute is required;

(c) uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff;

(d) the ability to make the deduction is not dependant on the actual receipt of benefits by the plaintiff. Issues between the plaintiff and ICBC regarding the benefits are not relevant to the deductibility by a tort-feasor from an award to the plaintiff;

(e) it is no longer a requirement that there be a match between the heads of damage for a tort award and specific heads of damages under the benefit recovery scheme;

(g) the task of the court is to estimate the amount of Part 7 benefits, if any, the plaintiff is or would be entitled to receive for the costs reflected in the future care award. It then must make the appropriate deduction;

(h) benefits under s. 88 (2) of the Regulations arise when ICBC’s medical adviser holds the opinion that the costs are “likely to promote the rehabilitation” of the plaintiff. The term “rehabilitation” is defined in s. 78 of the Regulation as follows:

“Rehabilitation” means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him.

(i) the uncertainty of the entitlement of payment created by the Regulation may lead the court to conclude that only a nominal deduction is appropriate. Trial judges must be cautious in their approach to determining the estimate inasmuch as a reduction results in a lessening of the award in the tort action. If that is a result of uncertainty created by the Regulation, ICBC cannot be heard to complain;

(j) the court is to take into account ICBC’s discretion with respect to whether certain amounts will be paid in addition to restrictions in the Regulation with respect to amounts payable.

 

[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.

 

[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life.

 

[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.

 

[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.

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