ICBC’S “Checkered Record” Of Funding Past Treatments Affects Court’s Ruling On Section 83 Deduction Application

In Olson v. Farran, the Plaintiff was injured in a motor vehicle accident, and subsequently advanced an ICBC claim for non-pecuniary damages, as well as various other types of damages, including special damages and the cost of future care.

 

At trial, the Court awarded the Plaintiff damages under numerous categories, including special damages and the cost of future care.

 

ICBC’S lawyer took issue with the amounts awarded under these categories, and sought a deduction pursuant to Section 83 of the Insurance (Vehicle) Act, which allows the Court to reduce the awards if a claimant has received or is entitled to receive benefits from ICBC. For example, if a claimant is awarded a sum of money for future treatment, however ICBC would pay this anyways in the future under Part 7 benefits, then this amount can be deducted from the court award. However, there is not always a guarantee that ICBC will make such payments in the future, which is an important factor for a Court to consider when hearing applications pursuant to Section 83 of the Insurance (Vehicle) Act. Certain benefits can be mandatory, however certain benefits are only discretionary. When benefits are only discretionary in nature, this means that ICBC does not have to pay such benefits in the future. This uncertainly is typically the key issue in Section 83 applications for deductions of trial awards.

 

In the case at bar, ICBC had actually paid out the entire amount of the judgement to counsel for the Plaintiff, who deposited the funds into a trust account. Shortly thereafter, however, ICBC’S lawyer gave notice of an intention to apply for a deduction in the awards for special damages and the cost of future care. Plaintiff’s counsel then filed and delivered an acknowledgment of payment of the judgment in full, and then paid out the judgment funds to the Plaintiff.

 

In addition to invoking the doctrines of mootness, estoppel, and abuse of process, counsel for the Plaintiff argued that the benefits that ICBC’S lawyer sought to deduct were discretionary, and that there was some uncertainty as to whether or not ICBC would even pay any future benefits.

 

The Court did not allow for any deductions from the special damages trial award on the basis of mootness, but did allow for a partial deduction from the cost of care award at trial. The Court was concerned with ICBC’S history of actually paying for the Plaintiff’s treatment, leading to serious concerns as to whether future benefits would be paid by ICBC.

 

[71] The onus of showing that a deduction should be made is on the defendant. I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid. Any such uncertainty must be resolved in favour of the plaintiff.

 

[72] Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.

 

[73] In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.

 

[74] Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition. Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.

 

[75] The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.

 

[76] The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.

 

[77] I disagree. The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson. Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

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