Sun, 30 Nov 2003 12:10:26 -0500
Set-off of pecuniary and non-pecuniary benefits
Somewhat diffidently ..
adding to what Prof. Luntz wrote in his note of November 30.
the issue in another way - the deductibility of apples from oranges
- there has been some discussion (the quality of the discussion
is for another day) on the issue in judgments of Canadian courts
in the context of the deductibility of no-fault benefits, provided
by statute, in tort claims for personal injuries arising out of
motor vehicle accidents.
legislation provides for the deduction of such benefits from the
damages without specifying how and from what. The general form of
the problem was whether the various no-fault benefits could be deducted
from the non-pecuniary portion of the general damages award if the
amount of the benefits exceeded analogous portions of the pecuniary
damages award or even the total of the pecuniary damages award.
The end result is that only like may be deducted from like, whatever
like means in the context of the particular case. See, Bannon
v McNeely, (1998), 38 O.R. (3d) 659, 159 D.L.R. (4th) 223 (Ont.
C.A.). There are similar decisions in at least British Columbia.
Bannon refers to and applies a British Columbia C.A. decision.
rationale of these cases seems, to me, to suggest that Ontario and
B.C. judges would not offset alleged intangible (non-pecuniary)
benefits against proven financial losses or even against other proven
non-pecuniary damages of a different "type", assuming such existed
in an appropriate case.
had been prior trial decisions in which such deductions were allowed
on the basis that, otherwise, there would be double recovery. In
what was viewed as the leading case, Cox v. Carter (1976), 13 O.R.
(2d) 717 (H.C.J.), the trial judge wrote:
I would observe that while my interpretation may result in the
subtraction, figuratively, of apples from oranges, the total amount
of the plaintiff's assessment of damages against the defendant,
before Insurance Act considerations are taken into account, is
not reduced. All that has happened is that, in effect, part of
his damages have been received by him in advance. In the same
vein, if the submission of the plaintiff were given effect, the
plaintiff would be benefiting from a double recovery, contrary
to the policy of the subsection:
Ont. C.A. specifically rejected that argument, stating that "if
at all possible, apples should be deducted from apples, and oranges
from oranges." The C.A. agreed with and applied an earlier decision
of the B.C. C.A. in which that Court had said that it is implicit
in similar B.C. legislation that "It is only where the benefit corresponds
with the particular heading of claim for damages that the benefit
is to be deducted, and then only from the award for that particular
head of damages." This is, of course, a restatement of the equivalence
principle described by Prof. Fleming.
While it is probably true to say that, ultimately, the Ontario and
BC decisions literally turn on the wording of the legislation, it
seems, to me, that the decisions would have been the same even if
the Courts did not think the result was mandated by the wording
of the statute.
Fernandes Hearn LLP
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