Disabilty benefits are generally deductible from motor vehicle damage awards in Ontario. Care should be taken to instruct the jury to do so.

Private long-term disability benefits are deductible from an award for past wage loss made by jury to plaintiff in respect of injuries sustained in a motor-vehicle accident, but only if the jury is instructed to deduct them.

Brown v. Campbell, [2011] O.J. No. 5991, December 5, 2011, Ontario Superior Court of Justice, M.J. Nolan J.

The issue before the Court was the deductibility of private long term disability payments from an award for past wage loss made by a jury to the plaintiff in respect of injuries sustained in a motor vehicle accident.

Section 267.8 of the Insurance Act, R.S.O. 1990, c. 1 8 provides for the deduction of collateral benefits received due to injuries suffered in a motor vehicle accident to avoid double recovery. The Court found that the disability payments were not deductible because the jury had not been instructed with respect to what use they could make of the disability payments the plaintiff was receiving. The Court held that this is a matter that the jury should be instructed on. Otherwise, there is no way to know whether they have made the deduction.

This case was digested by Cameron B. Elder of Harper Grey LLP.

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