In Brugger v. The Trustees of The IWA, the Plaintiff was injured in a motor vehicle accident. Pursuant to a subrogation agreement, he received long term disability benefits through the Forest Industry LTD Trust. Under the provisions of the subrogation agreement, the Plaintiff agreed to repay the Trustees the amount of repayable LTD benefits. The Plaintiff also received Part 7 interim wage loss benefits through ICBC.
At a Summary Trial application, the chambers judge ordered the Plaintiff to pay back a certain amount of the benefits, which also factored in Part 7 benefits from ICBC.
The Plaintiff appealed, arguing that Part 7 benefits did not apply to amounts owed pursuant to the subrogation agreement.
The Court of Appeal ruled that the chambers judge had erred when he ruled that Part 7 benefits were to be included as “compensation from … a person whose acts have caused or are alleged to have caused the Disability“. The rationale for the Court of Appeal’s decision is that Part 7 benefits are no fault, first party insurance benefits.
 In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.
 While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.