Minor Deductions Allowed For Benefits Under Section 83(2) Of Insurance (Vehicle) Act

When a Plaintiff is awarded damages as a result of injuries arising from a motor vehicle accident, ICBC’S lawyer will often invoke Section 83(2) of the Insurance (Vehicle) Act and argue for a reduction in the amount of “no-fault” accident benefits (Part 7 benefits) that has been awarded to the Plaintiff, arguing that the Plaintiff could or would have been entitled to such benefits under their insurance policy. This can sometimes lead to a very harsh reduction in damages.


In Stanikzai v. Bola, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. At trial, the Plaintiff was awarded damages for loss of income and cost of future care. ICBC’S lawyer submitted that there should be deductions from these amounts to reflect benefits that the Plaintiff had received, or was entitled to receive. The Court allowed for a minor deduction, but otherwise rejected the submission from ICBC’S lawyer.


[14]        The award to the plaintiff included amounts for past income loss and cost of future care. The defendants seek to deduct $14,825.40 for benefits in respect of employment insurance as well as future physiotherapy treatments and fitness programs. The Act and Part 7 of the Regulations provide for payment of certain disability, medical and rehabilitation benefits. Where a plaintiff has been awarded a judgment, deductions are to be made for benefits the plaintiff has received or is entitled to receive.


[18]        …..     There is no evidence on this application that the employment insurance authorities would have accepted any claim for benefits the plaintiff might have made. The defendants have not met the onus of proving that this deduction is appropriate.


[20]        Some benefits are therefore mandatory under s.88(1), while others are discretionary under s.88(2). Physiotherapy is a mandatory benefit and the affidavit from the adjuster says that “ICBC will pay” for two physiotherapy sessions a year for 18 years at a cost of $17.65 a session, totalling $635.40.


[21]        I agree that a deduction for physiotherapy is required and rely particularly on the adjuster’s clear statement under oath that ICBC will pay for these treatments. That is one factor that distinguishes this case from Paskall v Scheithauer, 2012 BCSC 1859 (CanLII), 2012 BCSC 1859, where an adjuster merely said that he “expects” the corporation to pay certain benefits in the future.


[22]        However, I note that the adjuster has calculated the total deduction simply by multiplying the cost of a single physiotherapy session by the number of sessions over an 18 year period. An award for cost of future care is made on the basis of the present value of the goods and services that will be required over the relevant period. The amount that the defendant is entitled to deduct should be similarly discounted to reflect the present value of those future payments. I leave it to counsel to agree on that calculation.

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