In ME v ICBC, the Plaintiff suffered serious injuries in a motor vehicle accident. By the time she returned to work, she had received nearly $80,000 in CPP benefits. It was agreed that ICBC could deduct this amount from the Underinsured Motorist Protection award. However, an issue arose with respect to possible future CPP payments that the Plaintiff may receive. ICBC’S lawyer argued for a reduction of over $135,000, however the arbitrator only allowed for a reduction of $20,000.
102. I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities. That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.
103. In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…
116. It has been 13 years since the accident. 2010 will be the first full year of employment the Claimant has maintained since the accident. To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.
117. However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.
118. That is not to say there is no risk whatsoever. I cannot ignore the concerns outlined by the Claimant’s Mother. As well, I cannot ignore the evidence of Dr. LeBlanc. It may be difficult for the Claimant to find jobs over the course of her working life. Such jobs must have structured routine, few distractions and no multi-tasking. Her cognitive issues may be aggravated in unfamiliar and stressful situations.
119. Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.
120. The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80
