April 14, 2014
For a person who has suffered very serious or catastrophic injuries as a result of someone else’s negligence, the most significant part of their claim will likely be the loss of income and cost of care faced into the future. In regard to the latter, it is extremely important that the medical treatment, household supports, and other care that will be required going forward is determined and the projected associated costs are calculated for a proper assessment of the claim. In order to ensure our clients future needs are looked after, we regularly work with medical experts and Economists to determine the present value of the care costs that will be required in the future.
This forms part of the claim against the at-fault party and their insurer. When facing claims that include significant future income loss and/or care costs, defence counsel and insurers continually take the position that this portion of the plaintiff’s claim should be reduced on the basis of social assistance programs delivering medical or income benefits to the plaintiff. The issue with this position is that there is no guarantee that these social programs will continue to exist or that the plaintiff will continue to benefit from them. If, for example, a plaintiff is receiving AISH benefits and their income loss going forward is calculated in a manner that deducts the AISH benefits from the income they would have been earning but for their injury, the plaintiff is subsequently cut off AISH post-settlement, there is no recourse to go back and claim the shortfall from the at-fault party or insurer. Canadian Courts have recognized this issue and have held that social assistance benefits are not properly deductible from these future claims. A few of the Court decisions dealing with this issue include:
Stein (Litigation Guardian of) v. Sandwich West (Township),  OJ No 1772: the Court held that a reduction in the cost of future care for government funded services should not be allowed due to the uncertain expectation of government help. This decision was upheld on appeal and the Court of Appeal went further to hold that those injured as a result of another’s negligence should not be forced to accept all publicly funded services, nor should social program benefits be the standard for tort compensation.
Cherwoniak v. Walker, 19991 ABQB 680 (upheld on appeal, see 2001 ABCA 172): In determining the plaintiff’s future care costs for prescription medication, the defence argued that the plaintiff would receive coverage through government funded Blue Cross and therefore his entitlement should be reduced on that basis. The Court took judicial notice of the fact that the healthcare system in Canada is under significant financial pressure, such that the benefits currently available may not be in the future. The Court also noted the possibility that the plaintiff could move to another jurisdiction where the same benefits would not be available and held that “the Plaintiff ought to be given the benefit of any doubt regarding the continuation of the government funded Blue Cross program or his eligibility to access same”.
MacLean v. Wallace,  OJ No 3220: the Court held that if it is necessary for one party to bear the risk of uncertain social funding, it ought to be the Defendant who does so.
Marcoccia (Litigation Guardian of) v. Gill,  OJ No 1333: the Court awarded future care costs based on an assessment that not only excluded social assistance benefits, but also family support. In doing so, the Court specifically stated that “for the purposes of assessing future claims, the family must be taken out of the picture”.
While legislative changes have carved out reductions to a claimant’s entitlement, the Courts have consistently held that an injured party’s future loss claims should not be reduced on the basis of a reliance on uncertain social assistance programs and further, that a claim should not be limited to the marginal level of care or income provided by these social assistance programs. Rather, an individual who suffers injury through the negligence or fault of another, is entitled to compensation for their necessary and reasonable care expenses and the net income they would have earned, but for the injury. Portions of this blog relied on the article “Insurers should not rely on social programs”, written by Patrick Brown of the law firm McLeish Orlando LLP, which was published in The Lawyers Weekly, March 28, 2014 icrcrssue and can be found on McLeish Orlando LLP’s website through the following link: http://blog.mcleishorlando.com/blog/insurers-should-not-rely-on-social-programs/
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