COURT OF APPEAL FOR ONTARIO

CITATION: El-Khodr v. Lackie, 2017 ONCA 716

DATE: 20170919

DOCKET: C60918

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Kossay El-Khodr

Plaintiff (Respondent)

and

Raymond C. Lackie, John MacPhail, ATS Andlauer
    Transportation Services
    GP Inc., and Trailcon Leasing Inc.

Defendants (Appellants)

Barry A. Percival, Q.C. and James W. Gibson, for the
    appellants

Joseph Y. Obagi and Elizabeth A. Quigley, for the
    respondent

Heard: April 4, 2017

On appeal from the order and the judgment that resulted
    from that order of Justice
Giovanna
    Toscano Roccamo
of the Superior Court of Justice, dated August 26, 2015,
    sitting with a jury,
with reasons reported
    at
2015 ONSC 2824
,
2015 ONSC 4766
and
2015 ONSC 5244.

MacFarland J.A.:

[1]

This
    appeal from the judgment of Justice Giovanna Toscano Roccamo dated August 25,
    2015, sitting with a jury, with reasons reported at 2015 ONSC 2824, 2015 ONSC
    4766 and 2015 ONSC 5244, was heard together with the appeals in
Cobb v. Long Estate
,

2017 ONCA 717. The
    reasons for judgment are being released concurrently. All of the appeals deal with
    the regime in Part VI of the
Insurance Act
, R.S.O. 1990, c. I.8 for the treatment of statutory
    accident benefits (SABs) in the calculation of damages arising from motor
    vehicle accidents. The issue in relation to prejudgment interest is also common
    to both and my reasoning in
Cobb
on this point applies here as well.

A.

facts

[2]

Kossay
    El-Khodr was catastrophically impaired when the tow truck he was operating in
    the early morning hours of January 9, 2007 was rear-ended by the appellants
    vehicle. Liability for the collision was never seriously in issue and was admitted
    by the time of the trial. The trial proceeded before a jury and, by their
    verdict delivered April 30, 2015, the respondent was awarded damages in the
    following amounts:

General Damages:                                       :

$225,000

Past Loss of Income
           :

$220,434

Future Loss of Income
          :

$395,593

Future Care Costs:

Attendant Care Costs/Assisted Living                       :

$1,450,000

Professional Services (Physiotherapy, Psychology, etc)        :

$424,550

Housekeeping and Home Maintenance                     :

$133,000

Medication and Assistive Devices                          :

$82,429

Total

$2,931,006

[3]

On
    August 10, 2015, the respondent was paid the full amount awarded by the jury.

B.

The trial judges Impugned rulings

[4]

In a
    series of rulings during and after the trial, the trial judge held that:

i.

Prejudgment
    interest on the general damage award should be calculated at 5%, the rate that
    was in effect prior to January 1, 2015, when s. 258.3(8.1) of the
Insurance
    Act
was amended;

ii.

The
    respondent was required to assign his future income replacement benefit from
    his SABs insurer only to the age of 60 and not thereafter;

iii.

The
    jury should treat the existence of the Ontario Drug Benefit Program, which
    would cover the cost of the respondents medication after the age of 65, as a contingency
    only rather than as a certainty;

iv.

There
    should be no assignment to the appellant of any future payments to be made to
    the respondent by the SABs insurer in relation to medication and assistive
    devices;

v.

There
    should be no assignment to the appellant of any future payments to be made to
    the respondent by the SABs insurer in relation to professional services.

[5]

These
    five rulings are the subject-matter of this appeal.

C.

ANalysis

Issue
    1 - Prejudgment interest amendment

[6]

In
Cobb
,
    I conclude that the January 1, 2015 amendment to s. 258.3(8.1) of the
Insurance Act

was effective from the day
    it came into force and applied to all actions then in the system. I so conclude
    because the
Courts of Justice Act
, R.S.O. 1990, c. C.43,

does not generate a vested
    right to any particular rate of prejudgment interest, and a contextual analysis
    of the legislation demonstrates that the legislature intended s. 258.3(8.1) to
    apply to causes of action that had already arisen but not yet been tried.

[7]

The
    result here is that the default interest rate to be applied on the general
    damage award pursuant to s. 127 of the
Courts of Justice Act
is 2.5% and not 5% as the
    trial judge awarded. The trial judge did not exercise her discretion under s.
    130 to depart from that default rate. The consequence in dollar figures is that
    the interest awarded on general damages ought to have been the sum of
    $44,583.91 rather than the $89,167.81 awarded by the trial judge. I would
    reduce the amount of the judgment by the sum of $44,583.90.

Issue 2 - Whether the respondent was
    required to assign his future income replacement benefit from his SABs insurer
    only to the age of 60

[8]

In her
    provisional reasons for judgment, reported at
2015 ONSC 4766
, the trial judge stated
    at para. 84 that she would be inclined to order that the respondent assign all
    future payments for weekly income until either the payments total $395,593 (the
    amount the jury awarded for future loss of income) or until the respondent
    reaches the age of 64. In her final reasons for judgment, reported at
2015 ONSC 5244
, the trial judge
    commented at paras. 7 and 8 that the appellants admitted that the award did not
    disclose the retirement age that the jury had utilized and that it was a matter
    of speculation that the jury had used age 64. To ensure that the respondents
    entitlement to full compensation was not jeopardized, she held that the appellants
    were entitled to an assignment of income replacement benefits based on a
    retirement age of 60.

[9]

The
    respondent initially presented his case for future income loss to the jury through
    four scenarios. For the first three scenarios, the respondents accounting
    expert (from Price Waterhouse Coopers and later of KPMG), Mr. Rehman, took
    figures from Statistics Canada. The first scenario was based on sales
    statistics for unincorporated businesses. The second was based on 2006 figures
    for truck drivers, including tow truck drivers. The third was based on 2006 figures
    for higher-ranking positions in the same industry, specifically for supervisors
    of motor transport and other ground transit operators, on the assumption that
    the respondent likely would have obtained a promotion at some point. The fourth
    scenario was based on data collected by the Economic Research Institute (ERI)
    about tow truck operators in the area where the respondent worked. Within those
    four scenarios presented to the jury, two - and only two - retirement dates
    were proposed: age 64 and age 67.

[10]

During
    the trial, Mr. Hamzeh, a friend of the respondent and the respondents
    colleague at the time of the accident, gave evidence. The two had worked for
    the same towing company and had planned to go into business together and
    operate their own towing company. Unfortunately, this motor vehicle accident
    intervened and the respondent was unable to participate in those plans any
    further. Mr. Hamzeh, however, did go into business for himself and gave
    evidence about his business income and expenses from his business over the years.
    The respondents expert, Mr. Rehman, was in court for that evidence and, based
    on what he had heard and on reviewing the financial records for Mr. Hamzeh, as
    well as his income tax records, he was able to come up with a fifth and a sixth
    scenario, based on those records and statistical averages for the respondent,
    for past (prior to trial) income and for future (after trial) income losses.

[11]

As Mr.
    Rehman explained in his evidence, among the first four scenarios, using the
    Statistics Canada and ERI figures  the average retirement age for all four
    scenarios came from Statistics Canada  in only one, the owner of a comparable
    company scenario, was the average retirement age 67. In all of the other three
    scenarios the average age of retirement was 64 because that was Statistics
    Canadas average retirement age for employed individuals, as opposed to
    self-employed individuals, for whom Statistics Canadas average retirement age
    was 67.

[12]

In the
    calculations for scenarios five and six (referred to as 1-A and 1-B in the evidence),
    based in part on Mr. Hamzehs actual numbers, Mr. Rehman used 2030 as the
    projected retirement date  in 2030 the respondent would be 67 years of age.

[13]

Nowhere
    in her charge to the jury did the trial judge reference anything in relation to
    the future income loss that suggested any retirement date other than those
    suggested by Mr. Rehman. Mr. Rehman was not questioned about other possible
    retirement dates and what, if any, differences other dates might make to his
    calculations. He was not asked to demonstrate for the jury how they might use
    the present value numbers if they did not accept the proposed retirement dates.
    Finally, the respondent was never asked any questions at all about when he
    expected to retire. On this record, it was a misapprehension of evidence to
    suggest that this jury might have based their award for future loss of income
    on a retirement date other than those specifically referenced in the evidence.
    Any other date was pure speculation.

[14]

What
    is clear from the verdict is that, in relation to the past loss of income
    award, the jury took the number from Mr. Rehmans Scenario Four, which
    projected the respondents lost income based on ERIs statistics about
    compensation for tow truck drivers in the local area.

[15]

The
    jurys award for past loss of income matches exactly Mr. Rehmans Scenario Four
    figure for past loss of income ($220,434). Although their award for future loss
    of income is less than any of the numbers presented by Mr. Rehman, the Scenario
    Four amount is the closest to the jurys, with a difference of only $20,821.
    The average retirement age, according to Statistics Canada evidence, for a
    Scenario Four person was 64 years of age.

[16]

The
    only reasonable conclusion, based on the evidence and the jurys answers, is that
    the jury had concluded that the respondent would have retired at age 64 had the
    accident not occurred.

[17]

The
    appellants are content if the trial judges order is amended to reflect a
    retirement date when the respondent will be 64 years of age. The obligation to
    assign the income replacement benefits payable by RSA Insurance (the
    respondents accident benefit insurer) to the defendants insurer, Northbridge
    Commercial Insurance Corporation, therefore should also reflect this change.
    The obligation to assign should continue to the respondents 64th birthday (August
    10, 2027).

[18]

Accordingly,
    I would amend paragraph 1 of the trial judges order dated August 26, 2015 by
    deleting the date of December 31, 2019 and substituting the date of August 10,
    2027.
[1]

Issue 3 - Whether the existence of the
    Ontario Drug Benefit Program should have been treated as a contingency only
    rather than as a certainty

[19]

Under O.
    Reg 201/96, promulgated pursuant to the
Ontario Drug Benefit Act
, R.S.O. 1990, c. O.10, persons
    over the age of 65 are eligible for the Ontario Drug Benefit Program (ODBP),
    which covers the cost of prescription drugs. The trial judge instructed the
    jury to treat the plaintiffs eligibility for this program, once the plaintiff
    reached the age of 65, as a contingency.

[20]

In her
    instructions to the jury, the trial judge explained that the jury should treat
    the respondents eligibility for the ODBP as a contingency because there is
    substantial uncertainty about whether the Drug Plan will be available in 2028,
    the year during which the respondent would reach age 65. In my view she erred
    in doing so and she should have instructed the jury to award damages based on
    the law as it currently exists. Given the plaintiffs eligibility under the ODBP
    at age 65, the liability insurer should have been required to pay for drug
    benefits only to the age of 65.

[21]

Confusingly,
    in her decision on the issue reported at 2015 ONSC 2824 and dated April 29,
    2015, one day before the jury issued its verdict and one day after the trial
    judge instructed the jury on the contingency of the ODBP, the trial judge
    provided a different reason for treating the ODBP as a contingency. That
    reason was that the relevant assignment provision, s. 267.8(12)(a)(v) of the
Insurance
    Act
, would not capture the reduction in drug prices for senior citizens
    that the ODBP provides. According to the trial judge, the problem was that
    subclause (12)(a)(v) captures only
payments
to which the plaintiff who
    recovered damages is entitled in respect of the incident after the trial of the
    action  under any medical, surgical, dental, hospitalization, rehabilitation
    or long-term care plan or law (emphasis added).

[22]

The
    trial judge erred in failing to instruct the jury
not
to award any sum
    for drug benefits after the plaintiff reached the age of 65. From that age
    forward, he would suffer no loss because his drug claims would be covered by
    the ODBP.

[23]

Because
    the jury was instructed to treat drug benefits as a contingency, it is
    impossible to conclude from the jury award what portion of the damage award for
    drug benefits, if any, extends past the age of 65. While the SABs insurer will
    not be obligated to make any payment to the respondent beyond the age of 65 in
    relation to drugs, the liability insurer, who has or may have been required to
    compensate the respondent on this head beyond the age of 65 by reason of the
    erroneous charge, will receive no corresponding reduction by way of assignment
    or trust. Accordingly, in this case, the plaintiff may have been overcompensated
    for his loss, but, on the record, it is impossible for this court to make any
    order that would correct the trial judges error.
[2]

Issue 4 - Whether future SABs payments to be made to the
    respondent in relation to medication, assistive devices and professional
    services should have been assigned

(a)

Introduction

[24]

The
    respondents future care needs were claimed from the date of trial for the
    balance of his life. The cost of care evidence is summarized in the cost of
    care tables that were marked as exhibits at trial. The claim was presented and
    the respondents future needs categorized by the respondent under the following
    headings: Medication and Assistive Devices; Professional Services; Housekeeping
    and Home Maintenance Services; and Assisted Living. The latter category was broken
    down into two scenarios  the first using the Phoenix Network Model, a supported
    independent living model, and the second using a Personal Support Worker and a Rehabilitation
    Support Worker.

[25]

The
    claims as advanced by the respondent under these categories were:

Future Attendant Care:

(i) Phoenix Network

$3,373,627

(ii) Personal Support Worker

$2,609,113

Future Professional Services:

$637,125

Future Housekeeping and Home Maintenance:

$133,371

Future Medication and Assistive Devices:

[1] $144,743

[2] $169,596

[3] $191,061

[26]

The three numbers on the medication and assistive devices resulted
    from three different proposed dosages for the drug Cymbalta, the higher the
    dose the more costly the drug.

[27]

In her
    instructions to the jury, the trial judge reminded the jury that, during
    cross-examination, Mr. Martel, who had testified as an actuarial expert, had
    recalculated the cost of future medications with the assumption that the ODBP
    would fully cover the respondents medication costs once he reached age 65. The
    recalculated amounts, assuming the same dosages, were: (1) $78,230; (2)
    $90,434; and (3) $102,043.

[28]

The
    jury awarded:

Future Attendant Care Costs/Assisted Living        :

$1,450,000

Future Professional Services                     :

$424,550

Future Housekeeping and Home Maintenance Services :

$133,000

Future Medication and Assisted Devices             :

$82,429

[29]

Following
    the jury verdict, the appellants sought an assignment of the SABs payments to
    which the respondent would be entitled post-trial. The trial judges refusal to
    make any assignment in relation to future professional services and future
    medication and assistive devices is the subject of this ground of appeal.

[30]

In
    her reasons for judgment dated July 28, 2015, the trial judge gave provisional
    reasons on the assignment of future collateral benefits, indicating that she
    would be inclined to, among other things:

1.
assign payments for future medication
    and assistive

devices until such time as the payments total $82,429, or
    until the plaintiff reaches the age of 65, whichever comes first;

2.
find that the jurys award for
    professional and rehabilitation services included an amount for physiotherapy, entitling
    the defendant to assignment of any future payments for physiotherapy until such
    time as the assigned payments for professional services total $424,550; and

3.
assign payments for attendant care
    costs to continue only until such time as the payments total $1,450,000.

[31]

In her
    final decision, the trial judge did not allow an assignment of the future
    medication benefits and future professional services benefits. She noted that
    the parties had not adopted the language that she had proposed for the jury verdict
    sheet. Accordingly, the verdict sheet did not require the jury to specify
    awards for future care costs under the sub-headings that she had proposed, such
    as separate headings for each of physiotherapy, psychology, etc., instead of a
    single one for Future Professional Services, and separate headings for
    medications and for assistive devices instead of a single one for Future
    Medication & Assistive Devices. At paras. 5 and 6 of her reasons, she
    concluded:

[5]

As a result of the jury's global awards of $424,550
    for Future Professional Services, and $82,429 for Future Medication and
    Assistive Devices, the Defendants are now unable to meet their onus to
    demonstrate that the jury award compensated the Plaintiff for the same loss in
    respect of which the Defendants now claim an assignment of benefits.

[6]

The case law concerning the trust and assignment
    provisions of the
Insurance Act
requires me to ensure the prevention of
    double recovery by a plaintiff. This requirement must be balanced against a plaintiff's
    entitlement to receive full compensation; that is, by not being subjected
    unfairly to deductions based on uncertainty and speculation. I adopt the
    reasoning of Leach, J. in
Gilbert v. South
, 2014 ONSC 3485, 120 O.R.
    (3d) 703, at para. 9 where she found herself similarly bound by the very strict
    onus of proof applied to defendants in these cases:

However, concern to ensure mandated prevention of such
    double-recovery is balanced by concern that a plaintiff should receive full
    compensation and not recover less than that to which he or she is entitled;
    i.e., by being subjected unfairly to deductions based on collateral benefit
    entitlements that are in doubt and/or which may not truly overlap with sums
    recovered in a tort judgment. Statutory provisions of this nature therefore are
    strictly interpreted and applied. In particular: deductions from a plaintiff's
    damage award to prevent double recovery will be made only if it is absolutely
    clear that the plaintiff's entitlement to such collateral benefits is certain,
and
that the plaintiff received compensation for the same benefits in the tort
    judgment, (as "apples should be deducted from apples, and oranges from
    oranges"). Evidence of "likelihood" and "probability"
    in that regard is not enough to warrant a deduction. Rather, a "very
    strict onus of proof" applies in relation to such matters, and it must be
    "patently clear" that the preconditions for an appropriate deduction
    have been established. If there is uncertainty as to a plaintiff's receipt of
    such benefits, the value of the benefits entitlement, and/or the extent (if
    any) to which recovered tort damages relate to the same type of expense covered
    by the benefits received, matters are not "beyond dispute" in the
    sense required for a deduction, and no deduction should be made. See
Chrappa
    v. Ohm
(1998), 38 O.R. (3d) 651 (C.A.), at p.657;
Bannon v. Hagerman
    Estate
(1998), 38 O.R. (3d) 659 (C.A.), at p.679;
Cowles v. Balac
,
    [2005] O.J. No. 229 (S.C.J.), at paragraph 205, affirmed [2006] O.J. No. 4177
    (C.A.);
Moore v. Cote
, [2008] O.J. No. 3541 (S.C.J.), at paragraph 9;
    and
Hoang v. Vicentini
,
supra
, at paragraphs 27-28, 36 and 45.
    [Emphasis in original.]

[32]

The
    relevant provisions of the
Insurance Act
that address the
    assignment/trust of SABs received by a plaintiff post-trial provide:

267.8(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 plaintiffs 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.

(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.

(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
    plaintiffs 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).

[33]

Section
    267.8 of the
Insurance Act
codifies the common-law principle that a plaintiff should
    not recover twice for the same kind of loss arising from the same incident. The
    particular benefits that are to be deducted, held in trust or assigned are described
    in the legislation only in broad categories. For example, s. 267.8(1) requires
    that benefits for income loss and loss of earning capacity be deducted from
    damages for income loss and loss of earning capacity. Likewise, s. 267.8(4)
    requires that health care expense payments be deducted from damages for health
    care costs. While the
Insurance Act
does not, on its face, further distinguish particular
    statutory benefits on a qualitative or temporal basis, several cases have
    imposed those requirements by requiring strict matching between common-law
    heads of damage and the specific type of SABs benefit received.

[34]

The
    trial judge in this case applied a strict matching approach on the basis of
Bannon v. McNeely

(1998), 38 O.R. (3d) 659
    (C.A.),

a case decided under a former statutory regime for the deduction
    of benefits, and
Gilbert v. South
, 2015 ONCA 712, 127 O.R. (3d) 526, a
    recent decision of this court that applies the
Bannon
approach in the assignment of
    benefits context.

[35]

In my
    view, strict qualitative and temporal matching requirements should not be
    applied to s. 267.8 for two chief reasons: (a) the policy rationale underlying
Bannon
is not relevant to the
    current statutory scheme; and (b)
Bannon
may no longer be good law in this province.
[3]
Like the approach that this
    court adopted with respect to the deductibility of
pre-trial benefits
in
Basandra v. Sforza
, 2016 ONCA 251, 130 O.R. (3d) 466, and which is the
    subject of the appeal in the
Cobb
case, the assignment and trust provisions of the
Insurance Act
require the court to
    match benefits that will be received after trial to the broad, enumerated
    statutory categories only in a general way.

[36]

In the
    analysis that follows, I discuss: why the policy rationale underlying
Bannon
is no longer relevant;
    why
Bannon
may no longer be good law
    in this province; and whether
Gilbert
should apply to prevent the assignment of benefits in
    this appeal. I also offer some suggestions as to how the claims for special
    damages should be presented to a jury to better serve the purpose of the
    statutory provisions.

[37]

In
    this appeal, because I have concluded that the strict matching approach set out
    in
Gilbert
does not apply to the
    particular facts of this case, I leave the specific question as to whether
Bannon
and
Gilbert
remain good law for
    another day.

(b)

The policy rationale underlying
Bannon
is no longer relevant

[38]

To
    understand why
Bannon
may no longer be relevant with respect to the treatment of SABs benefits,
    it is helpful to appreciate the differences between the previous statutory
    regimes that have applied and the current regime.
[4]

[39]

For
    accidents that occurred between 1971 and October 1989, s. 239(2) of the
Insurance Act
, R.S.O. 1980, c. 218, a
    provision originating in S.O. 1971, c. 84, s. 17, provided:

(2) Where a claimant is
    entitled to the benefit of insurance as provided in [the relevant Schedule],
    this, to the extent of payments made or available to the claimant thereunder,
    constitutes a release by the claimant against the person liable to the claimant
    or his insurer.

[40]

This
    provision established a scheme that required future accident benefits payable
    to a plaintiff by the no-fault insurer be paid to the insurer responsible for
    payment of the tort damages. At common law,
Cox and Carter
 orders
[5]
were fashioned if
    entitlement to future benefits could not be strictly proven and the present value
    of future benefits could not be deducted. The courts imposed these orders to
    ensure there would be no double recovery. Such an order would require the
    defendant to pay the damage award, while providing the defendant with credit
    for collateral benefits paid to the date of trial. Future statutory benefits
    that the plaintiff would receive after trial were subject to a trust and would
    be paid to the defendants insurer in the tort action when received.

[41]

Accidents
    occurring between October 1989 and January 1994 were subject to a revised
    provision in the
Insurance Act
, R.S.O. 1990, c. I.8, originating in S.O. 1990, c. 2,
    s. 57.
[6]
Subsection 267(1) provided:

The damages awarded to a
    person in a proceeding for loss or damage arising directly or indirectly from
    the use or operation of an automobile shall be reduced by:

(a) all payments that
    the person has received or that were or are available for no-fault benefits and
    by the present value of any no-fault benefits to which the person is entitled;

[42]

It was
    unclear under this revised language whether
Cox and Carter
 orders were still
    available or whether a defendant was simply entitled to a deduction at trial
    for the present value of future accident benefits that might be payable after
    trial. It was also unclear whether deductions of no-fault benefits could be
    made against any head of tort damages. Two decisions of this court in 1998
    clarified the application of s. 267.

[43]

In
Chrappa v. Ohm
(1998), 38 O.R. (3d) 651
    (C.A.), this court addressed the standard of proof that this subsection
    required. At issue was the treatment of the plaintiffs ongoing entitlement to
    long-term disability benefits. The defendants argued that s. 267 required the
    trial judge to deduct the present value of future disability payments to age
    65. The trial judge had concluded that, in order to succeed with respect to the
    deduction of future benefits, the defendants had to demonstrate that it was
    beyond dispute that the plaintiff qualified in every respect for these
    payments and that they would be received. She found on the facts that this was
    not established and refused to make that deduction. However, to avoid the
    prospect of double recovery, the trial judge imposed a
Cox and Carter
 order, requiring the
    plaintiff to hold in trust the future long-term disability payments that were
    received and, to the extent of the judgment, to pay them to the defendants.

[44]

Goudge,
    J.A., writing for this court, upheld the trial judgment. He stated, at pp.
    655-56, 657 and 658:

What then must be shown to demonstrate entitlement to those
    future payments? As I have said, the test adopted by the trial judge is that it
    must be shown to be beyond dispute that the plaintiff qualifies for these
    payments in every respect. I agree with this. The plaintiff's present right to
    receive these payments means that so far as the future can be made certain,
    they will be received. Short of that, there is no entitlement for the purposes
    of the subsection.

The subsection requires by its terms that the entitlement to
    future payments exist at the time of trial. It must be shown that there are
    future payments to which the plaintiff "
is
entitled" (emphasis
    added). The
New Shorter Oxford English Dictionary
provides that to be
    entitled is to have a rightful claim to something. The plain meaning of the
    language of the subsection requires the showing of a present right to receive
    these future payments. Otherwise the present value deduction does not apply.

The relevant case-law also supports the conclusion that a
    strict construction is to be given to the concept of entitlement to insurance
    benefits where that entitlement is the basis for a reduction in the plaintiff's
    recovery.

Thus, in my view, the jurisprudence supports the view that
    where the concept of entitlement to future long-term insurance benefits is used
    as a basis for reducing the [plaintiffs] damage recovery it must be strictly
    interpreted to require that it be beyond dispute that the plaintiff qualifies
    for these future payments in every respect.

I therefore conclude that the appellants fail on the central
    issue in this appeal. Both parties agreed that, in this event, no quarrel can
    be had with the modified
Cox and Carter
" order imposed by the
    trial judge. It does full justice to both parties in that it provides a
    mechanism for ensuring with precision that the respondent obtains no double
    recovery because of these future payments from the respondent's insurer to
    compensate her for loss of income. It does so without passing to the respondent
    any risk that her ultimate recovery will be less than that awarded by the jury.
    [Emphasis in original.]

[45]

Bannon
    v. McNeely

addressed
    whether a deduction of no-fault benefits could be made against any head of
    damage under a tort award or whether the deduction must be from a head of damage
    covering that kind of loss to which the no-fault benefit could be attributed. Finlayson
    J.A., writing for the court, at p. 673 again described why the onus of proof
    under s. 267(1) was very strict:

Goudge J.A. in
Chrappa
examined the relevant case-law
    and concluded that [at p. 657] the jurisprudence supports the view that where
    the concept of entitlement to future long-term insurance benefits is used as a
    basis for reducing the plaintiffs damage recovery it must be strictly
    interpreted to require that it is beyond dispute that the plaintiff qualifies
    for these future payments in every respect.

[46]

One
    can see in this context why the court required a defendant claiming the benefit
    of a statutory deduction to bear a strict onus of establishing the present
    value of any future no-fault benefits to which a plaintiff was entitled. Under
    the regime in operation at the time, the deduction was made from the damage
    award immediately after the verdict on damages and at a time when the
    entitlement to the future receipt of the deducted benefit might have been
    uncertain. If the SABs insurer decided not to pay the benefit for any reason,
    the plaintiff would have already accounted, by way of a reduction in her damage
    award, for a benefit that she would not ultimately receive. Certainty was
    required under that statutory regime to avoid the risk of under-compensation of
    the plaintiff.

[47]

The
    position with respect to the deductibility of the SABs benefits advanced by the
    appellant in
Bannon
was a broad one and, at p. 674, the court
    described it this way:

The appellants further submit that no-fault benefits are
    deducted from
any
damages awarded in a tort action,
regardless of
    whether or not the damages are awarded for a type of loss akin to that for
    which the no-fault benefits were intended to compensate
. A plaintiff may
    never apply for no-fault benefits, but if they are available, the defendant is
    entitled to the deduction of the benefits from the damages awarded; if the
    plaintiff applies for and is rejected the benefits, then the plaintiff must sue
    for them. [Emphasis added.]

[48]

In
    rejecting the proposition that any no-fault benefits could be deducted from the
    totality of a tort award regardless of the manner in which the award was
    structured, Finlayson J.A., at p. 678, referred to the approach adopted by the
    British Columbia Court of Appeal in
Jang v. Jang
(1991), 54 B.C.L.R. (2d)
    121 (C.A.) in considering a similar provision in that province's no-fault
    scheme. In
Jang
, Lambert J.A. had concluded, at p. 125, 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.

[49]

At p.
    679 of
Bannon
, Finlayson J.A. adopted
    this apples to apples approach, stating:

my opinion with respect to the deductibility of no-fault
    benefits is more in accord with the approach taken by the British Columbia
    Court of Appeal in
Jang
,
supra
. I believe that, where possible,
    any no-fault benefit deducted from a tort award under s. 267(1)(
a
) must
    be deducted from a head of damage or type of loss akin to that for which the
    no-fault benefits were intended to compensate. In other words, and employing
    the comparison of Morden J. in
Cox
,
supra
, if at all possible,
    apples should be deducted from apples, and oranges from oranges. It follows
    further from this conclusion that if the no-fault deduction exceeds the amount
    awarded under the specific head of damages to which the no-fault benefits can
    be attributed, then there cannot be resort to another portion of the tort
    judgment for the balance.

[50]

The
    unusual pleadings in that case also influenced this courts adoption of a
    strict matching approach. The plaintiffs in
Bannon
had presented a number of net
    claims in the action, net of what were then called no-fault benefits.

[51]

One
    can perceive this framing of the case, for example, in relation to the
    housekeeping claim, where at p. 669, this court noted:

The trial judge favoured the approach of Ms. Carter over Mr.
    Pesando's and made an award for the loss of housekeeping services that was net
    of the no-fault benefits received under s. 7(1)(
a
) of the SABS up to the
    time of trial. This net award was $65,000 after making a 20 per cent
    contingency reduction. The trial judge also gave an award of $43,000 for the
    loss of post-trial housekeeping services that covered the period from the date
    of trial to the time that Mrs. Bannon would reach age 70. That award was also a
    net award. It included a 20 per cent contingency reduction
and excluded the
    value of no-fault benefits received and receivable during this period
.
    [Emphasis added.]

[52]

In
Bannon
,
the plaintiffs did not seek recovery of
    benefits already provided to them by their no-fault insurer; their claims were
    presented net of those benefits. Nevertheless, the appellants in that case
    argued that the payments still had to be deducted from the damage award in the
    tort claim. The result in
Bannon
is not surprising; where the claim
    was presented net of no-fault payments, any further deduction would have amounted
    to a double counting of the no-fault benefits.

[53]

The
    current statutory scheme was introduced in November 1996, in s. 29 of the
Automobile Insurance Rate
    Stability Act
, 1996
, S.O. 1996, c. 21. For present purposes, the 1996 amendments
    did three important things: they codified the principle that SABs benefits that
    fall into the enumerated three general categories are deductible; they
    eliminated the quantification and deduction of the present value of future
    benefits that might be payable; and they codified the common-law
Cox and Carter
 orders.

[54]

In my
    view, the policy rationale supporting the strict matching requirement in
Bannon
no longer applies, given
    these amendments to the statutory scheme. The concern that the court had in
Bannon
regarding the uncertainty of future payment of SABs simply does not arise under
    the current legislation. Courts are no longer required to calculate the present
    value of the future benefits to which a plaintiff would be entitled and to
    deduct that amount from the damage onward. The potential unfairness of this
    requirement, in my view, was the overriding concern and the rationale that
    originally drove the strict approach to deductibility under the legislative
    regime that this court addressed in
Bannon
.

(c)

Bannon
may no longer be good law in this province

[55]

As I
    explain above, the Ontario matching principle articulated in
Bannon
is based on the approach
    of the British Columbia Court of Appeal in
Jang
. In
Gurniak v. Nordquist
, 2003 SCC 59, [2003] 2
    S.C.R. 652, a majority of the Supreme Court of Canada expressly stated that
Jang
was wrongly decided. While
    interpreting s. 25 of British Columbias
Insurance (Motor Vehicle) Act
,
R.S.B.C. 1996, c. 231, a
    provision like the one in the Ontario legislation in force between 1971 and October
    1989, the court held that, provided broad similarity was established as the
    B.C. statute required, a specific matching between the particular benefit
    received under the statutory accident benefit scheme and the heads of damage in
    the tort award was not required.

[56]

Iacobucci
    J., writing for the majority, rejected the approach of the British Columbia
    Court of Appeal in
Jang
. At paras. 44 and 45, he stated:

[44]

With respect, I find the reading of the statute
    advanced by the British Columbia Court of Appeal and adopted by the respondents
    problematic in several respects. First, and most importantly, it grafts onto
    the statutory sections something that is simply not there. I do not agree with
    the statement in
Jang
that "[t]he requirement that the benefit
    match the claim is implicit in the legislative scheme ... and is explicit in s.
    24(2) [now s. 25(2)], which matches 'a claim for damages' with 'benefits
    respecting the claim'" (para. 13) [] Since the term "benefits"
    is defined under s. 25(1) as "includ[ing] accident insurance benefits
    similar to those described in Part 6", it follows that "benefits
    respecting the claim" must in this case refer to the
full
panoply
    of accident insurance benefits received under the Quebec legislation in respect
    of the death of Mr. Ross. It is, in my view, a contrived reading of the statute
    to interpret "benefits respecting the claim" as encompassing various
    individual heads of damage claimed under the SAAQ scheme, and to thereafter
    require that these benefits be deducted only to the extent that they
    individually overlap with elements of the tort award. In my opinion,
    "benefits respecting the claim" refers to the global package of
    benefits paid under the SAAQ regime in respect of Ms. Gurniak's claim for
    damages arising from Mr. Ross's death in a motor vehicle accident. There is, to
    my mind, nothing in the language of this provision that mandates that there be
    a "match" between the specific heads of damage in a tort award and
    the specific heads of damage under the contract or benefits scheme in question
    before a deduction is appropriately made.

[45]

This approach has the benefit of simplicity and
    ease of application and likely explains why British Columbia chose not to
    introduce an explicit matching requirement into the statute, when it could
    readily have done so. A trial judge, once he or she has determined that the
    benefits under the two regimes are broadly similar under s. 25(1), will deduct
    from the tort award any benefits already received in respect of the claim for
    damages arising from the motor vehicle accident. The trial judge will not be
    required to engage in a complicated and cumbersome process of
    "matching" a head of damage in tort to a particular claim for damages
    under a statutory scheme. This interpretation of s. 25(2) is supported by the
    fact that under some statutory schemes, the benefits received are not neatly
    classified into the various heads of damage for which they compensate, thereby
    making it nearly impossible for trial judges to give meaningful effect to any
    sort of matching principle. [Emphasis in original.]

[57]

Gonthier
    J., McLachlin C.J. concurring, agreed with the majoritys disposition of the
    case but preferred not to overrule
Jang
on the matching requirement. At
    para. 2, he stated:

[2]

Although the correctness of the matching
    requirement was raised by the parties, we heard no submissions on the effect of
    overruling
Jang
on other Canadian jurisdictions.
Jang
has been adopted
    and applied by the Court of Appeal for Ontario in a series of cases
    interpreting s. 267(1) of the
Insurance Act
, R.S.O. 1990, c. I.8. See
Bannon
    v. McNeely
(1998), 38 O.R. (3d) 659;
Matt v. Barber
(2002), 162
    O.A.C. 34;
Brownell v. Tannahill
(2000), 52 O.R. (3d) 227;
Macartney
    v. Warner
(2000), 46 O.R. (3d) 669;
Gignac v. Neufeld
(1999), 43
    O.R. (3d) 741;
Quiroz v. Wallace
(1998), 40 O.R. (3d) 737. This line of
    cases was not brought to our attention by the parties and was not the subject
    of submissions.
I cannot avoid the conclusion that by overruling Jang, this
    Court must necessarily be taken to have overruled these Ontario cases as well.
In my view, judicial restraint requires this Court to forbear from such a
    course until the matching requirement is directly before us and is the subject
    of full argument. [Emphasis added.]

[58]

Notwithstanding
    the fact that the Supreme Court has overruled
Jang
, few Ontario decisions have
    considered whether the strict matching principle that was articulated in
Bannon
remains good law under
    the current statutory scheme and in light of
Gurniak
.

[59]

The
    only previous Ontario appellate case to have specifically addressed the point
    is
Mikolic
    v. Tanguay
, 2016 ONSC 71, 129 O.R. (3d) 24 (Div. Ct.).
Mikolic
required the Divisional Court to
    consider whether the trial judge had erred in refusing to deduct both the statutory
    income replacement benefits that the plaintiff had received from the tort award
    for past and future income loss and the statutory medical benefits that the
    plaintiff had received from the tort award for past and future care costs. The
    trial judge had concluded that
Bannon
required him to match pre-trial benefits received only
    against damages awarded for past losses and to match post-trial benefits that
    would be received only against damages awarded for future losses. In
    considering the implications of
Gurniak
, Sanderson J., writing for the court, stated at
    paras. 30-32:

[30]

It is not necessary to decide here whether the
    Supreme Court of Canada in
Gurniak
has generally overruled the matching
    principle set out in
Bannon
, although I note that in
Bannon
the
    Ontario Court of Appeal stated that its approach to the deductibility of
    no-fault benefits "is more in accord with the approach taken by the
    British Columbia Court of Appeal in
Jang
" (para. 49) and that the
    majority of the Supreme Court of Canada in
Gurniak
considered and
    overruled
Jang
at paras. 44-47 of its decision.

[31]

The language of the current statute is different
    from the language dealt with in
Bannon
. In
Bannon,
the statute
    provided for the deduction of "all payments that the person has received
    or that were or are available for no-fault benefits and by the present value of
    any no-fault benefits to which the person is entitled."

[32]

Since the legislation has been amended post
Bannon,
it is necessary for us to look at the specific wording of ss. 267.8(1) and (4),
    which require the court to carry out at least a limited matching when
    determining the deductibility of statutory benefits.

[60]

I
    agree with Sanderson J. that the present legislation does, to a limited extent,
    import a matching requirement. The court is required only to match statutory
    benefits that fall generally into the silos created by s. 267.8 of the
Insurance Act
with the tort heads of
    damage. Income awards are to be reduced only by SABs payments in respect of
    income loss and health care awards only by SABs payments in respect of health
    care expenses. The latter item is, I suggest, deliberately broad enough to
    cover all manner of expenses that relate to health care and would include
    medications, physiotherapy, psychology sessions, assistive devices and the
    like. All manner of other expenses that are covered by SABs and that do not
    fall under the income category or the health care category fall into the other
    pecuniary losses category.

[61]

There
    is nothing in the language of the current Ontario statutory scheme that would
    require any further subdivision based on common-law heads of damage. In other
    words, although the legislation requires us to match apples with apples, the
    relevant categories of apples are
the statutes categories
, not the
    common laws. Given the Supreme Courts explicit rejection in
Gurniak
of the matching approach
    in the
Jang
case and Gonthier J.s
    comment in relation to
Bannon
and its progeny,
Gurniak
puts into considerable
    doubt any qualitative or temporal matching requirement that is not mandated by
    the current legislation.

(d)

Whether the strict matching approach in
Gilbert
should be applied

[62]

In the
Insurance
    Act
s
    regime for mandatory assignment of accident benefits, plaintiffs who have
    recovered damages for future income losses, future healthcare costs or other
    ongoing expenses have an obligation to pay the corresponding statutory benefits,
    as the plaintiff receives them, to the defendants insurer. In
Gilbert
, this
court applied the strict matching
    approach adopted in
Bannon
to these
    assignment provisions
.

[63]

In
Gilbert
, the plaintiff was not
    catastrophically injured, so, according to the version of the
Statutory Accident
    Benefits Schedule
, O. Reg. 34/10, in force at the time, the plaintiffs
    receipt of health care benefits would cease after ten years and have a monetary
    limit of $100,000. York Fire & Casualty Insurance Company ("York
    Fire"), the plaintiffs insurer, had an obligation to provide coverage to
    Gilbert in relation to any damages caused by an uninsured driver. York Fire
    brought a motion for a declaration that Gilbert was required to hold certain
    future statutory benefits in trust and pay them to York Fire, or, in the
    alternative, for an order assigning to York Fire the plaintiffs right to
    certain future statutory accident benefits from the accident benefits insurer. The
    insurer argued that the jurys award of damages for future care costs, coupled
    with the plaintiffs entitlement to statutory benefits for medical and
    rehabilitation expenses, would constitute double recovery in the absence of an
    order requiring a trust or an assignment of those future benefits.

[64]

In the
    trial decision on assignment, reported at 2014 ONSC 3485, 120 O.R. (3d) 703, in
    describing the general principles relating to s. 267.8, the trial judge noted that
    he was required to balance prevention of double recovery against the
    plaintiffs entitlement to be fully compensated. In other words, he concluded
    that the plaintiff should not be subjected unfairly to deductions based on
    collateral benefit entitlements that are in doubt and/or which may not truly
    overlap with sums recovered in the tort action. In articulating a very strict
    onus of proof, and relying upon the
Bannon
case, the trial judge stated, at
    para. 9:

it must be patently clear that the preconditions for an
    appropriate deduction have been established. If there is uncertainty as to a
    plaintiffs receipt of such benefits, the value of the benefits entitlement,
    and/or the extent (if any) to which recovered tort damages relate to the same
    type of expense covered by the benefits received, matters are not beyond
    dispute in the sense required for a deduction, and no deduction should be
    made.

[65]

He
    stated, at para. 10, that there were uncertainties both as to entitlement and
    overlap that made it inappropriate to grant the relief requested by York Fire. At
    para. 13, he noted that there was no evidence to indicate with certainty the
    total amount of statutory accident benefits the plaintiff would receive. Also,
    it was unclear for what time period the jury award was intended to compensate. The
    trial judge noted, at para. 18, that the question put to the jury was to
    determine all future care costs from the trial date forward without
    differentiating as to whether the damages awarded were allocated to the ten-year
    statutory accident benefit period, the time period following the end of the
    ten-year period, or a combination thereof.

[66]

In
    addition to the temporal uncertainty, the trial judge concluded that there were
    qualitative concerns as the jury award made no allocation of the future care
    costs towards any particular category of future care expenditures. Because
    certain future care expenses were not recoverable under the SABs (e.g., transportation
    of an insured person to and from medical and rehabilitation appointments), he
    concluded that there was no way of making an accurate determination of the
    extent to which the jury award was intended to cover aspects of future
    treatment for which the plaintiff would not be reimbursed under the SABs. He
    stated, at para. 19, that if these qualitative distinctions were not made, the
    plaintiff could receive less than the full compensation to which he was
    entitled. For these reasons, the trial judge declined to order either a trust
    or an assignment.

[67]

This
    court upheld the trial judges decision. Relying on
Bannon
and on
Chrappa
, the court concluded, at
    para. 44 of its reasons, that an insurer can obtain an assignment of a
    plaintiffs future no-fault or collateral benefits only if the jury award
    mirrors the benefit sought to be assigned and there is no uncertainty about
    entitlement. Laskin J.A., writing for the court, pointed out, at paras. 45 and
    46, that the trial record left the trial judge with considerable uncertainty on
    whether Gilberts entitlement to accident benefits mirrored the jury award for
    future care costs on both a temporal and qualitative basis. He stated that:

[45]    York Fire cannot meet these requirements. It did not
    raise Gilberts accident benefits entitlement during the trial. It led no
    evidence from a future care cost expert. And it led no evidence of the present value
    of Gilberts claimed future care costs. Thus, the record left the trial judge
    with considerable uncertainty whether Gilberts entitlement to accident
    benefits mirrored the jurys award for future care costs.

[68]

The
    decision in
Gilbert
is anchored by the trial judges factual determination that the jury
    award encompassed future care costs for which accident benefits would not be
    received and that the trial record did not provide a basis to reconcile the
    two. This likely explains why neither the trial judge nor this court considered
    the Supreme Courts decision in
Gurniak
and no comparison was drawn between the current legislative
    scheme and the legislative scheme that applied when
Bannon
was
    decided. As stated earlier, the differences in the legislation are significant
    and important.

[69]

The current
    legislation has codified the
Cox and Carter
 approach. The imposition of the
    common-law
Cox and Carter
 orders under the previous statutory regimes ensured that no
    risk of under-compensation was placed on the plaintiff. Instead of being
    subject to a deduction from her damage award for future statutory benefits, the
Insurance
    Act

now requires a plaintiff
    to hold in trust or to assign any benefits that she receives from her SABs insurer
    after the trial judgment. These provisions ensure that the plaintiff is fully
    compensated by the jury award but limit double recovery by assigning only those
    benefits actually received in the future to the tort insurer. If the plaintiff
    does not receive any SAB payments after trial, she loses nothing because the
    tort insurer simply does not recover an offset of the damages already paid to
    the plaintiff. That is an important distinction from the previous regime. Like
    the
Cox
    and Carter
 orders, the trust and assignment provisions ensure that no risk of
    under-compensation passes to the plaintiff, while also minimizing double
    recovery.

[70]

As
    appears from this courts decision in
Basandra
, courts are moving toward a more
    relaxed approach that considers whether the pre-trial benefit received generally
    fits within one of the broad statutory categories of damages. Deductions are mirroring
    the language of the legislation  past income and future income awards are
    combined and all benefits received for income loss before trial, whether for
    past or future income losses, are deducted. In the
Cobb
appeal, I note that the language of
    the deductibility provisions in the legislation does not direct the court to
    apply temporal matching requirements and that in
Basandra
, at para. 27, this court accepted
    that the total amount of any SABs settlement for past losses or for future
    expenses is to be combined and deducted from the corresponding heads of damage
    in the jury award. The Divisional Court came to the same conclusion in
Mikolic
, at paras. 27-38.

[71]

It
    seems to me that the approach in
Basandra
also should apply in relation to the assignment
    provisions in view of the text of the legislation and the decision of the
    Supreme Court of Canada in
Gurniak
,
which rejected any implicit statutory requirement for a match between
    specific heads of damage in a tort award and the specific heads of damage under
    the benefits scheme in question.

[72]

To
    summarize on this point, I suggest that the time may have come to reconsider
    the application of any strict matching requirement between heads of damage and
    statutory benefits to the current statutory scheme for the following reasons:
Bannon
may no longer be good law
    in this province; and significant changes have been made to the statutory
    scheme since
Bannon
was decided. I leave these questions for another day as I conclude, for
    the reasons expressed below, that the
Gilbert
case can be distinguished on its
    facts.

(e)

Gilbert
does not apply on the facts to
    this appeal

[73]

This
    case differs from
Gilbert
factually in ways that make any risk of
    under-compensation due to assignment of future statutory benefits much smaller
    than in
Gilbert
. First, the respondent here
    has been designated catastrophically impaired. The ten-year temporal limitation
    for SABs that concerned the trial judge in
Gilbert
does not arise in
    this case. Here, the respondent claimed damages from the time of trial to the
    end of his life  the same period for which he is entitled to SABs by reason of
    his catastrophic impairment designation. Second, there were no benefits for
    which the assignment was requested that were not covered by SABs. The
    transportation expense that concerned the trial judge in
Gilbert
does
    not arise here. In that case, the plaintiff had claimed, among the items in
    support of his claim for future care costs, the cost of transportation to and
    from medical and other appointments. Because he was not catastrophically
    impaired, SABs did not cover the transportation cost.

[74]

Because
    the jurys award for future care costs was simply a lump sum global amount,
    there was no way to determine what, if any, sum the jury had awarded in
    relation to that item. So, to permit the deduction, it was argued, may have reduced
    the award for that item and left the plaintiff less than fully compensated.
    Those concerns do not arise on the facts of this case.

[75]

All of
    the claims in this case that make up the awards for future professional service
    and future medication and assistive devices were itemized sufficiently and all
    were covered by the SABs schedule. They were claimed from the date of trial to
    the end of the respondents life  the same period that the SABs will cover.
    The Cost of Future Care schedules on which the respondent advanced his case
    before the jury and that were made exhibits set out the respondents claims in
    detail.

[76]

This
    was not a lump sum award for future care. The jury awarded an amount for future
    attendant care/assisted living, a separate amount for future professional
    services and separate amounts for future housekeeping/home maintenance and for
    future medication and assistive devices.

[77]

The
    respondent did not recover all of the amounts that he had claimed. For example,
    he advanced a claim for the cost of future professional services in the amount
    of $637,125 and the jury awarded $424,550.

[78]

But it
    is for the jury to say what the proper amount of compensation is for a
    plaintiff. And once the judgment based on that award is paid, a plaintiff has been
    fully compensated for his loss. This plaintiff was paid the full amount of his
    judgment on August 10, 2015, and has, therefore, been fully compensated in
    respect of all his losses arising from this motor vehicle accident.

[79]

If
    there is no trust or assignment in respect of the SABs to which he will be
    entitled and which he will receive in the future for medication, assistive
    devices and professional services, he will be over-compensated and his receipt of
    any such benefits with no obligation to account to the tort insurer will
    constitute double recovery  a result this legislative scheme was specifically
    designed to avoid.

[80]

In my
    view, the trial judge erred in not ordering that there be an assignment in
    relation to the awards for the cost of future medication and assistive devices
    and future professional services. I would set aside paragraphs 3 and 4 of the
    trial judges order of August 26, 2015 and in their place order that any amounts
    for future medication and assistive devices payable by RSA Insurance to the
    respondent be assigned to Northbridge Commercial Insurance Corporation until the
    sum of $82,429 has been received; and that any amounts for future professional
    services payable by RSA to the respondent for psychological, physiotherapy,
    occupational therapy, massage therapy, kinesiology/personal training, case
    management services, and travel to medical or other specialist be assigned to
    Northbridge Commercial Insurance Corporation until the sum of $424,550 has been
    received.

D.

THE IMPORTANCE OF PROPER JURY questions

[81]

Some
    of the difficulties in the jurisprudence seem to have arisen in relation to the
    questions to be posed for the jury. Neither the deductibility of benefits nor
    the assignment of benefits was meant to be complicated. See
Gurniak
,
at para. 46.

[82]

A
    review of the jurisprudence quickly reveals the struggles trial judges have had
    in an effort to follow the strict matching said to be mandated by
Bannon
.
    Indeed some of that jurisprudence, in my view, goes beyond even the
    requirements of
Bannon
.

[83]

Plaintiffs
    should not be able to avoid either the deductibility or assignment of SABs
    already received or to which they will be entitled in future by the manner in
    which the claim for special damages is presented. For example, if a
    non-catastrophically injured plaintiff lumps together claims  as in
Gilbert
 for transportation costs to and from doctors visits, which would not be covered
    under SABs, with claims for medication costs, which are covered, it would be
    contrary to the purpose of the legislative scheme to deduct nothing from such
    an award. That plaintiff is clearly over-compensated where no deduction is
    made.

[84]

Future
    plaintiffs in motor vehicle accident cases should minimize trial courts
    difficulty in matching damages and statutory benefits by presenting their
    claims according to the categories in s. 267.8 of the
Insurance Act
: they should make a claim
    for past and future income losses, a claim for past and future health care
    expenses; a claim for other past and future pecuniary losses that have SABs
    coverage; and a separate claim for any past and future pecuniary losses that
    lack SABs coverage. In cases involving non-catastrophic injuries, the
    presentation of the claim should account for the monetary limits and temporal limitations
    on benefits compensating for such injuries.

[85]

Plaintiffs
    should be required to present their cases in this way. They alone know best
    what amounts they have expended in relation to their injuries that their SABs
    insurer did not or will not reimburse. If those items are separately
    categorized, the matching difficulties disappear  as does any risk of over or
    under-compensation.

[86]

A
    plaintiff should not be permitted to avoid having SABs deducted from a tort
    award and thereby defeating the purpose of the legislation by lumping together
    claims covered by SABs with those which are not.

E.

Disposition

[87]

In the
    result, I would allow the appeal and amend the trial judges order as follows:

i.

The
    judgment is reduced by the sum of $44,583.90 to reflect an interest rate of
    2.5% on the general damage award;

ii.

The
    date of December 31, 2019 in paragraph 1 is deleted and the date of August 10,
    2027 is substituted therefore;

iii.

Paragraph
    3 is deleted and in its place is substituted a new paragraph ordering that any
    amounts for future medication and assistive devices payable by RSA Insurance to
    the respondent be assigned to Northbridge Commercial Insurance Corporation
    until the sum of $82,429 has been received; and

iv.

Paragraph
    4 is deleted and in its place is substituted a new paragraph ordering that any
    amounts for future professional services payable by RSA to the respondent for psychological,
    physiotherapy, occupational therapy, massage therapy, kinesiology/personal
    training, case management services, and travel to medical or other specialist
    be assigned to Northbridge Commercial Insurance Corporation until the sum of
    $424,550 has been received.

[88]

If the
    parties are unable to agree on costs, they may make brief written submissions
    to the court, the appellants within two weeks of the release of these reasons
    and the respondent within two weeks thereafter.

Released: DD SEP 19 2017

J. MacFarland J.A.

I agree. Doherty
    J.A.

I agree. Paul
    Rouleau J.A.

[1]

The record provides August 10, 1963 as the respondents
    birthdate. Since the trial judges reasons dated August 26, 2015 set a
    retirement age of 60, her own reasons dictated a terminal date of August 10,
    2023 for assignment of income replacement benefits.

[2]
I note that the trial judge reminded the jury in her charge that Mr. Martel,
    who had testified as an actuarial expert, had recalculated the cost of future
    medications with the assumption that the Ontario Drug Benefit Program would
    fully cover the respondents medication costs once he reached age 65. The jury
    award appears to be more in line with Mr. Martels revised figures and perhaps
    with his assumption that medication costs would be covered after age 65. Even
    if one must assume that the jury awarded some portion of drug costs after age
    65 in keeping with the trial judges charge to treat the drug benefit program
    as a contingency, the jurys figure is only some $4000 more than Mr. Martels
    lowest number. Any prejudice to the liability insurer is therefore negligible.

[3]

These concepts are discussed by
Stephen Ross and Meryl
    Rodrigues, in The Interplay Between Tort and Accident Benefits,
The Oatley
    McLeish Guide to Motor Vehicle Litigation 2017
, (Toronto: Law Society of
    Upper Canada, 2017).

[4]
A helpful summary of the various statutory regimes is provided by Stephen
    Firestone, Deductibility of Collateral Benefits under Ontarios Three
    Automobile Insurance Schemes (1998) 21
Adv. Q
. 1.

[5]
These orders originated in the decision of
Cox v. Carter
(1976), 13 O.R.
    (2d) 717 (H.C.) by Morden J., as he then was.

[6]

Although the provision originated in 1990, subsection 267(6)
    provided that s. 267 would apply to motor vehicle accidents occurring after
    Oct. 23, 1989.


COURT OF APPEAL FOR ONTARIO

CITATION: Farley v. Ottawa (Police Services Board), 2017 ONCA
    689

DATE: 20170906

DOCKET: C63292

Watt, Huscroft and Trotter JJ.A

BETWEEN

George Farley

Plaintiff (Appellant)

and

Ottawa Police Services Board

Defendant (Respondent)

Diane Condo, for the appellant

Stuart Zacharias, for the respondent

Heard and released orally: August 28, 2017

On appeal from the judgment of Justice Calum U.C. MacLeod
    of the Superior Court of Justice dated December 22, 2016.

REASONS FOR DECISION

[1]

George Farley appeals from a decision granting the Ottawa Police
    Services Board summary judgment and dismissing his action claiming damages for
    malicious prosecution, negligent investigation and constitutional infringement.

[2]

Farleys claims arise out of an investigation conducted by members of
    the Ottawa Police Service which resulted in the arrest of Farley and another,
    Chenier, on charges of first degree murder, conspiracy to commit murder and
    possession of explosives with the intent to cause bodily harm or death.

[3]

At the conclusion of a joint preliminary inquiry, both Farley and
    Chenier, through their counsel, consented to their committal for trial.

[4]

A jury found Farley guilty as charged. He appealed. This court allowed
    the appeal on the basis of misdirection and misreception of hearsay evidence,
    and ordered a new trial.

[5]

On the new trial held several years later, two key prosecution witnesses
    were unavailable. The trial judge, sitting without a jury, characterized the
    Crowns evidentiary problems as simply overwhelming and acquitted Farley.

[6]

Farley started an action against the Ottawa Police Services Board
    alleging, as I have said, malicious prosecution, negligent investigation and
    breach of
Charter
rights by members of the Ottawa Police Service for
    whom the Ottawa Police Services Board is legally responsible.

[7]

On the motion for summary motion brought by the Ottawa Police Services
    Board, the motion judge found that:

i.

there was no evidence to support a claim of malicious prosecution;

ii.

there was no evidence to support a claim that the investigation fell
    below a standard of reasonable care and, thus, no evidence that it was
    negligent; and

iii.

there was no evidence to support a claim of
Charter
infringement.

In the result, the motion judge was satisfied that
    there was no genuine issue requiring a trial, granted the motion for summary
    judgment and dismissed the action.

[8]

In this court, the appellants essential complaint is that, in respect
    of several issues, the motion judge erred by weighing evidence and drawing
    inferences that were beyond his authority on the motion.

[9]

Critical to success of the plaintiffs causes of action as framed  malicious
    prosecution, negligent investigation and
Charter
infringement  as the
    motion judge pointed out, is the absence of reasonable and probable grounds to
    believe that the appellant committed the offences with which he was charged.

[10]

In this case, counsel for the appellant conceded committal for trial at
    the conclusion of the preliminary inquiry. This court ordered a new trial after
    convictions had been entered at a trial that was flawed by incorrect jury
    instructions and the admission of inadmissible hearsay evidence. The Crown
    continued the prosecution only to fail due to evidentiary difficulties.

[11]

In the absence of a fundamental flaw in the criminal proceedings, in
    this case in the committal for trial and the order for a new trial, rather than
    an entry of a verdict of acquittal, these antecedent judicial determinations
    may support a finding by a civil court that there existed reasonable and
    probable grounds for the criminal prosecution: see
Miazga v. Kvello Estate
,
    2009 SCC 51, at para. 97.

[12]

In our view, in these circumstances, that is a sufficient basis upon
    which to dispose of this appeal. In the absence of reasonable and probable
    grounds, the appellant could not succeed at trial. The motion for summary
    judgment was properly granted, and the action dismissed.

[13]

The appeal is dismissed with costs payable to the respondent in the
    amount of $5,000, inclusive of disbursements and all applicable taxes.

"David
    Watt J.A."

"Grant
    Huscroft J.A."

"G.T.
    Trotter J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Flowers (Re), 2017 ONCA 710

DATE: 20170913

DOCKET: C63188

Watt, Huscroft and Trotter JJ.A.

IN THE MATTER OF:  Romeo Flowers

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jonathan Fernandes, for the appellant

Barbara Walker-Renshaw, for the respondent the Person in
    Charge of Ontario Shores Centre for Mental Health Sciences

Jennifer Epstein, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the respondent the Person in
    Charge of Waypoint Centre for Mental Health Care

Heard: August 29, 2017

On appeal from the disposition of the Ontario Review
    Board dated November 24, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals from the Ontario Review Boards disposition
    ordering that he be detained at Waypoint Centre for Mental Health Care
    (Waypoint).

[2]

The appellant was found not criminally responsible in 2010. The index
    offence involved an assault on a 12 year-old boy and a failure to comply with a
    condition of a recognizance. The appellant was detained in the Secure Forensic
    Service of the Ontario Shores Centre for Mental Health Services (OSCMHS) pursuant
    to a disposition of the Board. His diagnoses include psychosis, antisocial
    personality disorder, a history of head injury, and schizophrenia. He has a
    significant criminal record, including many offences involving assaults.

[3]

In 2015, the appellant assaulted a nurse at OSCMHS. He was convicted of
    assault causing bodily harm and sentenced to a term of 12 months imprisonment
    and three years probation. This made the appellant a dual-status offender. His
    annual Board hearing occurred while he was incarcerated at the Central East
    Correctional Centre (CECC). The hearing combined his review hearing with the
    placement hearing that follows a sentence of imprisonment for a dual-status
    offender.

[4]

The Board determined that the appellant should serve the remainder of
    his sentence in a hospital and ordered his detention at Waypoint, a maximum security
    facility.

[5]

The appellant submits that the Board erred in several respects: (i) it
    failed to require testimony from the CECC psychiatrist; (ii) it failed to
    require testimony from the Minister of Community Safety and Correctional
    Services; (iii) it failed to hold a review hearing as soon as practicable; (iv)
    it presumed illness rather than wellness; (v) it made errors of fact; and (vi)
    it failed to explain why detention at Waypoint was the least restrictive
    disposition in the circumstances. At the hearing of the appeal, the respondent
    was called upon to address only the least restrictive disposition issue. The
    other grounds raised may be dealt with briefly.

[6]

The appellant is responsible for the absence of testimony from the CECC
    psychiatrist, Dr. Wesley. Although he consented to the release of his medical
    records from the CECC to Dr. Waisman, the appellant would not sign the
    necessary consents to allow Dr. Waisman to talk with Dr. Wesley. The appellant
    also refused to consent to the release of his medical records from CECC to the
    Board for use at the hearing. After discussion with the Board, the appellant
    recanted on this decision and the medical records were made available to the
    Board just prior to commencement of the hearing.

[7]

In our view the appellant was not prejudiced by the absence of evidence
    from Dr. Wesley in any event. We note that it was open to the appellant to
    bring a fresh evidence application on this appeal, but he chose not to do so.

[8]

Second, although the Minister is made a statutory party to proceedings
    relating to the placement of a dual-status offender by s. 672.69(4) of the
Code
,
    the Minister is not required to attend the hearing or to give evidence. The
    Minister has a right to be represented at the hearing, not a duty to attend.
    Counsel acknowledged at the hearing of this appeal that only a small marginal
    benefit might have accrued as a result of the Ministers participation in the Board
    hearing in any event.

[9]

Third, the Boards disposition was made within 30 days of the notice of
    hearing. We see no inappropriate delay in the proceedings or prejudice to the
    appellant.

[10]

Fourth,
    there was no uncertainty concerning the risk to public safety posed by the
    appellant. The default position in favour of liberty did not arise.

[11]

Fifth,
    alleged errors made by the Board concerning the appellants expression of remorse
    for the assault on the nurse and the timing of another assault on a sleeping
    co-resident are, in our view, inconsequential.

[12]

As
    the parties were in agreement that the appellant continued to present a
    significant threat to public safety, the Board was required to fashion the
    least onerous and restrictive disposition.

[13]

The
    Board considered that there was no basis in reality to the appellants request
    for a conditional discharge. There was ample evidence before the Board that a
    secure forensic hospital was required in order to provide the care the
    appellant needed. Moreover, it is clear from the record that there were few
    alternatives to Waypoint; other hospitals were either unresponsive, unable to
    accept the appellant, or had lengthy waiting lists. The appellants sentence and
    probation order prohibited him from having any contact with the victim nurse
    and from being within one kilometre of her, and so precluded his return to OSCMHS
    Shores.

[14]

In
    all of the circumstances, we are satisfied that the Boards disposition was
    reasonable. There is no basis for this court to interfere with it.

[15]

The
    appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gilmor v. Nottawasaga Valley Conservation
    Authority,

2017 ONCA 678

DATE: 20170901

DOCKET: C61786

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Alex Gilmor and Tania Gilmor

Respondents

and

Nottawasaga Valley Conservation Authority

Appellant

and

The Township of Amaranth

Respondent

Alex Gilmor and Tania Gilmor, in person

J. Thomas Curry and Andrew Porter, for Conservation
    Ontario

John A. Olah, for Nottawasaga Valley Conservation
    Authority

Sara Blake, for Ministry of Natural Resources

Jeremy Glick, for Ministry of Natural Resources

David N. Germain, for the Township of Amaranth

Jeremy Opolsky,
Amicus Curiae

Heard: December 20, 2016

On appeal from the order of Justice Kruzick, Justice
    Perell and Justice Dunphy of the Divisional Court, dated September 9 2015.

COSTS ENDORSEMENT

[1]

The court released its decision on May 23, 2017
    allowing the appeal. The parties were invited to make written submissions on
    costs. The interveners were required to pay their own costs.

[2]

The appellant NCVA, which succeeded on the
    appeal, seeks costs of $77,419.86 on a partial indemnity basis for both the
    appeal and the proceedings before the Divisional Court. This is opposed by
amicus
    curiae
on the basis that it is excessive. No submissions were received
    from the respondent Gilmors or from the Township of Amaranth.

[3]

The Gilmors shall pay the NCVA its costs claimed
    for the Divisional Court proceedings of $14,674.25, all-inclusive.

[4]

The Gilmors should not be required to pay for
    the NCVAs costs in responding to unsuccessful intervention motions ($14,570).

[5]

The cost sought for the leave to appeal motion
    and appeal hearing are high, having regard to the costs in the Divisional
    Court, and should be reduced. In all of the circumstances, the Gilmors shall
    pay the NCVA $30,000, all-inclusive for costs on the appeal.

[6]

The total costs payable by the Gilmors to the
    NCVA are $44,674.25, all inclusive.

[7]

No order is made in respect of the Township of
    Amaranth.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gottlieb v. Malone Given Parsons Ltd., 2017 ONCA
    757

DATE: 20170929

DOCKET: C63147

MacFarland, Watt and Benotto JJ.A.

BETWEEN

Unicorr
    Limited, as Trustee for Norman James Gottlieb and Container Corporation of
    Canada

Plaintiffs

(Appellants)

and

Malone
    Given Parsons Ltd.

Defendants

(Respondent)

Alan B. Dryer, for the appellants

David Winer, for the respondent

Heard and released orally: September 25, 2017

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated November 28, 2016, with reasons reported
    at 2016 ONSC 7350.

REASONS FOR DECISION

[1]

The motion judges key findings are set out in paras. 76 and 77 of his
    reasons as follows:

[76]     In 2011, Mr. Gottlieb knew that the payment of
    development charges, which had come as such a surprise, could have been avoided
    had a timely application for a building permit been made and that the
    responsibility for applying for a building permit (which is actually a disputed
    point) was on the Defendants. In 2011, Mr. Gottlieb knew the identities of the
    wrongdoers and he knew the nature of their culpable acts or omissions, which
    was the failure to obtain a timely building permit. He knew enough material
    facts to infer that the Defendants had caused him harm.

[77]       I will grant that, subjectively, Mr. Gottlieb did
    not know the legal significance of what he knew, but objectively, a reasonable
    person acting diligently ought to have known that there was a claim against the
    persons charged with the responsibility of obtaining a timely building permit.
    A reasonable person, particularly one who has legal advice available to him for
    his construction project, would not have asked Mr. Kirk for legal advice about
    the operation of municipal by-laws.

[2]

These findings are more than generous to the appellant.

[3]

It is arguable on this record that the appellant ought to have been
    aware of his claim and his right to bring an action much earlier in time. The
    Town of Richmond Hill (the Town) complied with all of its notice obligations
    prior to the passing of the By-Law, including public meetings and publication
    of notice. To suggest that anyone engaged in development in the Town and their
    experts would have been unaware that the Town was about to pass a By-Law under
    the
Development Charges Act, 1997
, S.O. 1997, c. 27, strains
    credulity.

[4]

Further, when the Town returned his site plan to the appellant in
    November, 2009, it noted then that development charges would be owing on the
    project. Yet, nothing was done until two years later when the building permit
    was applied for, and he was required to pay the charges. And he knew from
    Eileen Byrnes email of July 26, 2011, that had he received his building permit
    prior to the passing of the By-Law, the development charge would not have been
    payable. Clearly, then, if not before, if he did not know, he ought to have
    known that he had a claim against those who were responsible for obtaining a
    building permit on his theory of his case.

[5]

We see no error of the decision of the motion judge. The appeal is
    dismissed. Costs are to the respondent and fixed in the sum of $15,010.02,
    inclusive of disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Haider Humza Inc. v. Rafiq, 2017 ONCA 737

DATE: 20170921

DOCKET: M47972 (C60141)

Doherty, LaForme and Miller JJ.A.

BETWEEN

Haider Humza Inc., Mississauga Auto Clinic Inc.
    and Mecca Wholesale Meats & Catering Inc.

Plaintiffs (Respondents)

and

Mohammed Rafiq, a.k.a.
    Mohammad Rafiq, a.k.a. Muhammad Rafiq
, Saida Banu Rafiz,
    Zubaid-Ur-Rahman Nawaid Hasmi, Zrco Exchange Canada Inc., Multimedia Marketing
    Group Ltd., Ajaz Khan, Zia Islam, carrying on business as Pro Tech Automotive,
    Canadians Central Auto Ltd., Auto Specialists Inc., Sam Santino, carrying on
    business as Santino Haulage and
A and B Auto Leasing
    & Car Rental Inc.

Defendants (
Appellants
)

Pathik Baxi, for the appellant, Mohammed Rafiq, a.k.a.
    Mohammad Rafiq, a.k.a. Muhammad Rafiq

Joanna Nairn, for the respondents

Heard:  September 20, 2017

A motion to reconsider the order of Justice Gloria
    Epstein of the Court of Appeal for Ontario, dated June 2, 2017, dismissing the
    appellants appeal for delay.

APPEAL BOOK ENDORSEMENT

[1]

There is no merit to the submission that the moving party did not have
    adequate notice that the respondent would seek a dismissal for delay on the appearance
    before Epstein J.A.

[2]

We see no reason to interfere with Epstein J.A.s refusal to extend the
    time for perfection.  She was entitled to look to the entire history of the
    proceeding and not just the latest default by the moving party.

[3]

Absent an extension of time to perfect, the appeal was properly
    dismissed for delay by the registrar.

[4]

The motion is dismissed.

[5]

The $25,000 held in court, plus interest, shall be paid out to Pape
    Barristers, in trust.

[6]

Costs of the motion to the respondent in the amount of $2500 all in.


COURT OF APPEAL FOR ONTARIO

CITATION: Harris v. Ontario (Community Safety &
    Correctional Services), 2017 ONCA 750

DATE: 20170928

DOCKET: C62647

Doherty, LaForme and Miller JJ.A.

BETWEEN

Karl Harris, Mark Dew and Riley Carver Dew, by
    her Litigation Guardian, Kari Harris

Plaintiffs (Respondents)

and

Her Majesty the Queen in
    Right of Ontario
, as represented by the Ministry of Community Safety
    & Correctional Services, Windsor Jail Superintendent Vic Villeneuve, Joe
    Doe, John Doe, Jeff Doe and Jane Doe

Defendants (
Appellant
)

Darrell Kloeze and Ann Christian-Brown, for the
    appellant

Andrew C. Murray, for the respondents

Asha James and Marc Gibson, for the intervener, The
    Urban Alliance on Race Relations

Heard:  September 20, 2017

On appeal from the order of Justice P. Hebner of the Superior
    Court of Justice, dated August 2, 2016, with reasons reported at 2016 ONSC 4641.

REASONS FOR DECISION

[1]

We are satisfied that the question of law posed by the respondents in
    their motion brought under Rule 21.01(1)(a) could not be properly answered on
    the record before the motion judge.  She should have dismissed the motion.

[2]

Rule 21.01(1)(a) provides that a party may move for a:

determination, before trial, of a question of law, raised by a
    pleading in an action where the determination of the question may dispose of
    all or part of the action, substantially shorten the trial or result in a
    substantial saving of costs.

[3]

The respondents asked the motion judge to answer the following question:

Are claims for recovery of legal expenses incurred in
    connection with the inquest conducted into the death of Jonathan Dew
    potentially recoverable in law as against the defendant, pursuant to s. 61(1)
    of the
Family Law Act
, R.S.O. 1990, c. F.3 (FLA), or are such expenses
    excluded claims, not potentially recoverable at law?

[4]

Section 61(1) gives the named defendants a right to sue for pecuniary
    loss resulting from the death of the family member.

[5]

The motion judges answer as framed in her order reads:

Claims for recovery of legal expenses occurred in connection
    with the inquest conducted into the death of Jonathan Dew are potentially
    recoverable in law as against the defendants, pursuant to subsection 61(1) of
    the
Family Law Act
.

[6]

Rule 21.01 is available only to answer questions of law raised by the
    pleadings.  The pleadings said nothing about a coroners inquest or any legal
    expenses incurred by the respondents in connection with the inquest.  In fact,
    the statement of claim predated the inquest.  The respondents acknowledged that
    they would have to amend their pleadings and the motion judge gave leave for
    the respondents to do so (para. 10).    She, however, decided the Rule 21.01
    motion without any amendment to the pleadings.

[7]

The motion judge could not properly answer the question raised on the
    motion without the actual pleadings said to raise the question of law.  Without
    pleadings to properly identify the legal question and place it in the context
    of the allegations and claims made in the specific case, the response to the
    question posed on the motion was unlikely to significantly advance the
    litigation.

[8]

The motion judges answer proves the point.  In her order, she described
    the legal expenses as potentially recoverable under s. 61(1) of the FLA.  In
    her reasons (at para. 30), the motion judge made it clear that she was not
    addressing any of the issues upon which entitlement to payment of those legal
    expenses would ultimately depend.  She said, I make no determination of any
    other issue, including foreseeability, negligence and quantum.

[9]

The motion judges answer goes no further than to declare that if the
    legal expenses qualified as a pecuniary loss resulting from the death, those expenses
    could be recoverable under s. 61(1) of the FLA.  With respect, that answer
    simply declares that the respondents can recover if they qualify for recovery
    under the terms of s. 61(1).

[10]

The answer provided by the motion judge did not further any of the
    purposes identified in Rule 21.01(1)(a).  It did not dispose of any part of the
    action, shorten the trial, or result in any substantial saving of costs.

[11]

This court has considered the principles governing the interpretation of
    s. 61(1) of the FLA in
Macartney v. Warner
, [2000] O.J. No. 30.  The
    application of those principles to the respondents claim for legal expenses arising
    from the coroners inquest raises potentially difficult issues.  Those issues
    are best resolved on a full record.

[12]

The appeal is allowed and the order of the motion judge is set aside.
    The respondents are free to amend their statement of claim and advance their
    claim for legal expenses under s. 61(1) of the FLA.  It will be for the trial
    judge to determine the merits of that claim.

[13]

The respondents are entitled to costs on the motion and on the appeal.
    We fix the former at $3,692.28 (the amount awarded to the respondents by the
    motion judge).  We fix the costs of the appeal at $5,000, inclusive of
    disbursements and taxes.  No costs for or against the intervener.

Doherty J.A.

H.S. LaForme J.A.

B.W. Miller J.A.