PART VI AUTOMOBILE INSURANCE
Income loss and loss of earning capacity
267.8 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts: 1.  All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity. 2.  All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan. 3.  All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.  1996, c. 21, s. 29. Exception (2) No reduction shall be made under subsection (1) for payments in respect of income loss if the payments are in respect of income loss suffered in the seven days after the incident.  1996, c. 21, s. 29. Priority with other tortfeasors (3) If persons other than protected defendants are liable for damages for income loss or loss of earning capacity, the reduction required by subsection (1) shall first be applied to the damages for which the protected defendants and the other persons are jointly and severally liable under subclause 267.7 (1) (a) (i), and any excess shall be applied to the amount for which the other persons are solely liable under subclause 267.7 (1) (a) (ii).  1996, c. 21, s. 29. Health care expenses (4) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts: 1.  All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care. 2.  All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.  1996, c. 21, s. 29. Exception (5) Paragraph 2 of subsection (4) does not apply to a payment made by the Ministry of Health and Long-Term Care if the action is brought under section 30 of the Health Insurance Act.  1996, c. 21, s. 29; 2006, c. 19, Sched. L, s. 11 (3). Other pecuniary loss (6) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for pecuniary loss, other than the damages for income loss or loss of earning capacity and the damages for expenses that have been incurred or will be incurred for health care, shall be reduced by all payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.  1996, c. 21, s. 29. Non-pecuniary loss (7) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages in respect of non-pecuniary loss to which a plaintiff is entitled shall not be reduced because of any payments or benefits that the plaintiff has received or is entitled to receive. 1996, c. 21, s. 29. Contributory negligence (8) The reductions required by subsections (1), (4) and (6) shall be made after any apportionment of damages required by section 3 of the Negligence Act.  1996, c. 21, s. 29. Future collateral benefits (9) A plaintiff who recovers damages for income loss, loss of earning capacity, expenses that have been or will be incurred for health care, or other pecuniary loss in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall hold the following amounts in trust: 1.  All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of income loss or loss of earning capacity. 2.  All payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan. 3.  All payments in respect of the incident that the plaintiff receives after the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment. 4.  All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of expenses for health care. 5.  All payments in respect of the incident that the plaintiff receives after the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law. 6.  All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.  1996, c. 21, s. 29. Payments from trust (10) A plaintiff who holds money in trust under subsection (9) shall pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages.  1996, c. 21, s. 29. Disputes (11) Any dispute concerning a plaintiff’s liability to make payments under subsection (10) shall, on the request of a person who claims to be entitled to a payment under that subsection, be submitted to arbitration in accordance with the Arbitration Act, 1991.  1996, c. 21, s. 29. Assignment of future collateral benefits (12) The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just, (a)  the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action, (i)  for statutory accident benefits in respect of income loss or loss of earning capacity, (ii)  for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan, (iii)  under a sick leave plan arising by reason of the plaintiff’s occupation or employment, (iv)  for statutory accident benefits in respect of expenses for health care, (v)  under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and (vi)  for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care; and (b)  the plaintiff who recovered damages in the action co-operate with the defendants or the defendants’ insurers in any claim or proceeding brought by the defendants or the defendants’ insurers in respect of a payment assigned pursuant to clause (a).  1996, c. 21, s. 29. Application of subs. (9) (13) Subsection (9) no longer applies if an order is made under subsection (12).  1996, c. 21, s. 29. Pension legislation (14) In the event of a conflict, subsections (9) to (13) prevail over, (a)  sections 65, 66 and 67 of the Pension Benefits Act; and (b)  sections 10, 11 and 12 of the Pooled Registered Pension Plans Act, 2015. 2015, c. 9, s. 30. Workplace Safety and Insurance Act, 1997 (15) Payments or benefits received or that were, are or may become available to a person under the Workplace Safety and Insurance Act, 1997 shall not be applied under subsection (1), (4) or (6) to reduce the damages awarded.  1996, c. 21, s. 29; 1997, c. 16, s. 9 (4). (16) Repealed:  1997, c. 16, s. 9 (5). Limitation on subrogation (17) A person who has made a payment described in subsection (1), (4) or (6) is not subrogated to a right of recovery of the insured against another person in respect of that payment. Exception (18) Subsection (17) does not apply if, (a)  the Ministry of Health and Long-Term Care made the payment; and (b)  the right of recovery is against a person other than a person insured under a motor vehicle liability policy issued in Ontario.  1996, c. 21, s. 29; 2006, c. 19, Sched. L, s. 11 (3). Workplace Safety and Insurance Board (19) The Workplace Safety and Insurance Board is not subrogated to a right of recovery of the insured against another person in respect of a payment or benefit paid by the Workplace Safety and Insurance Board to the insured or in respect of a liability to make such payment or benefit.  1996, c. 21, s. 29; 1997, c. 16, s. 9 (6). Determination of liability (20) For the purposes of subsections (1), (3), (4) and (6), the damages payable by a person who is a party to the action shall be determined as though all persons wholly or partly responsible for the damages were parties to the action even though any of those persons is not actually a party. Interpretation (21) For the purpose of subsection (1), (4) or (6), a payment shall be deemed not to be available to a plaintiff if the plaintiff made an application for the payment and the application was denied. Same (22) Subsection (21) does not apply if the court is satisfied that the plaintiff impaired his or her entitlement to the payment by, (a)  failing to give any notice required by law of the application for the payment; (b)  failing to make himself or herself reasonably available for any examination that was requested by the person to whom the application was made and that was required by law; or (c)  settling in bad faith his or her entitlement to the payment to the detriment of a person found liable for damages in the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile.  1996, c. 21, s. 29. Section Amendments with date in force (d/m/y) 1996, c. 21, s. 29 - 01/11/1996; 1997, c. 16, s. 9 (4-6) - 01/01/1998 2002, c. 22, s. 121 - See: Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2001 2006, c. 19, Sched. L, s. 11 (3) - 22/06/2006 2015, c. 9, s. 30 - 08/11/2016 2016, c. 17, s. 92
- no effect - see 2016, c. 37, Sched. 18, s. 5 - 08/12/2016 267.8.1 Section Amendments with date in force (d/m/y) 2002, c. 22, s. 122 - See: Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2012