Unprotected Defendants Entitled to Deduct Collateral Benefits under s. 267.8

Burhoe v. Mohammed (2010), 97 O.R. (3d) (391) (S.C.J.)

The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.

The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.

This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.