Deduction of future benefits from a tort award requires evidence, assertions in argument are insufficient.
In deducting no-fault accident benefits from a tort award in a motor vehicle case, a trial judge must estimate the future value of the benefits based on evidence, and not on representations by trial counsel. In this case counsel argued that ICBC would provide future payment of benefits, but there was no evidence led on this point. In these circumstances there is no basis for a judge to find that future benefits would be paid pursuant to a first party insurance policy. Therefore no future benefits were deducted from the award.
McCreight v. Currie  B.C.J. No. 740. British Columbia Court of Appeal. C.M. Huddart, P.D. Lowry and S.D. Frankel JJ.A. April 3, 2008
The Court of Appeal was asked to consider whether the trial judge had estimated the deduction for Part 7 benefits appropriately under the regulations to British Columbia’s Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231. Part 7 benefits apply in respect of injury or death caused by an accident arising out of the use or operation of a vehicle regardless of who is at fault in the accident. The benefits cover medical and rehabilitation costs, disability benefits, and death benefits. Part 7 benefits are deducted from any tort award.
At trial the judge had allowed a deduction for future benefits based upon trial counsel’s statement in written submissions that the Insurance Company of British Columbia (“ICBC”) would pay the full amount of the proposed deduction to the plaintiff. In allowing the appeal, the Court of Appeal held that it was impermissible for the trial judge to take into consideration counsel’s opinion of what position ICBC would take as to future claims under Part 7. The Court was clear that this was not to be taken as “suggesting evidence as to ICBC policy is not acceptable on a [Part 7 benefits] application.” Rather, it is unacceptable for the court to consider ICBC counsel’s representation as to what ICBC would cover.