Court Rules That ICBC Fails To Meet Burden For Section 83 Deductions

Accident benefits through ICBC, otherwise known as Part 7 Benefits, can come in many forms, including payments of benefits prior to trial, as well as payments of benefits into the future after trial.


When awards are made by a Court for future care, a common application brought by an ICBC lawyer is for the deductibility of certain future care items that would be paid in any event pursuant to the Part 7 Benefits scheme.


For example, if a claimant is awarded $10,000.00 for future care, but ICBC takes the position that $5,000.00 of this amount would be paid in any event in the future through Part 7 Benefits, then ICBC would argue for a deduction of $5,000.00 from the future care award, so as to prevent the Plaintiff from benefiting from double recovery.


The former Section 83 of the Insurance (Vehicle) Act, that allows for potential deductibilitly of parts or all of a future care award, was amended through the passage of Bill 20, which is applicable to accidents occurring on or after May 17, 2018.


Whereas previously, deductions by a Court from future care awards were not that common due to ICBC’S proven history of unjustifiably terminating benefits, the Court now does not have to consider the likelihood that ICBC will pay any future benefits when ruling on any potential deductions.


Typically, a Court when ruling on such an issue must estimate the amount of potential Part 7 future benefits, and take such an estimate into account by reducing the amount of the future care award accordingly.


In Siverston v. Griffin, the Plaintiff was injured in a motor vehicle accident, and consequently commenced formal legal proceedings for several types of damages, including the cost of future care. Following a jury trial, an award for future care was made in the amount of $60,000.00. The Court reasoned that virtually all of the future treatments in question were categorized as discretionary Part 7 Benefits.


ICBC’S lawyer applied to have this award reduced, arguing that many of the future care components that constituted the overall award could eventually be paid at different times in the future pursuant to ICBC’S Part 7 accident benefits scheme.


Counsel for the Plaintiff submitted that ICBC’S lawyer did not meet the required burden to show what the Plaintiff’s entitlement to future benefits would be, as there would be too much uncertainty as to what any future entitlement would be. Further, it was submitted that the Court could infer from ICBC’S refusal of benefits before trial, that this same pattern would continue after trial as well.


The Court refused to reduce the cost of future care award, ruling that ICBC’S lawyer had failed to meet the required burden for deductibility.


[47] To establish a basis for a deduction under s. 83(5), the defendants have the burden of establishing a correlation between the plaintiff’s claim (as determined by the court) and treatments and services available as Part 7 Benefits. It is the quantum of that entitlement that is relevant for deductibility purposes.


[48] The defendants rely on Sangha as support for the proposition that an affidavit from an ICBC claims specialist deposing ICBC accepts the court’s findings is sufficient to establish the plaintiff can expect to receive correlating Part 7 Benefits. However, Sangha was not a jury trial. The affidavit of the claims specialist in this case states “ICBC accepts the Court’s implicit finding that the future care treatments and medications set out in the reports are necessary” [emphasis added]. In Sangha, Riley J. particularized the basis of the plaintiff’s cost of future care damage award in the trial reasons. While a judge’s reasons for judgment setting out precise factual findings may not be the exclusive pathway for establishing whether and to what degree a cost of future care award reflects services or treatments that are available as Part 7 Benefits, in this case, the lump sum nature of the jury’s cost of future care award makes it impossible for me to ascertain whether and to what degree there is a correlation.


[49] The Supreme Court of Canada’s observation at para. 47 of Gurniak that “a second level of matching between a specific head of damage in a tort award and a specific head of damage under the insurance scheme in question” does not obviate the need for the correlation s. 83(5) requires. That first stage of “matching” is still required. In Gurniak, the Court was able to assess whether there was a match between the accident benefits paid under Quebec’s no-fault insurance scheme and those paid under the British Columbia Insurance Act, because both were ascertainable: Gurniak at para. 54. That is not the case here. The basis of the jury’s cost of future care award is unknown.


[50] Accordingly, I find the defendants have failed to discharge their burden to prove the plaintiff has any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim is based.


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