Non-Earner Benefits Not Deductible from Loss of Income

The decision of Kolapully v. TTC et al., 2022 ONSC 6024, involved an accident between a pedestrian and a bus. At trial, the plaintiff was awarded $150,000 for past loss of income (after accounting for contributory negligence). The plaintiff had previously received over $95,000 in non-earner benefits in an accident benefits claim.

The defendants argued that the non-earner benefits should be deducted from the loss of income award. This went against the 2005 decision of the Court of Appeal in Walker v. Ritchie. However, the defendants argued, among other things, that the 2018 decision of the Court of Appeal in Cadieux v. Cloutier broadened the deductibility of collateral benefits such that the requested deduction should be permitted.

In Cadieux, the Court of Appeal made an obiter comment that non-earner benefits are in the same “silo” as income replacement benefits. In particular, the Court of Appeal stated:

There are three broad categories of SABs under the Insurance Act and the Statutory Accident Benefits Schedule, O. Reg. 34/10. These were referred to in El-Khodr as silos. The first category provides income replacement benefits or, if the person was not employed at the time of the accident, ‘non-earner’ benefits, or ‘caregiver benefits’, if they provided caregiver services to another person at the time of the accident.

Justice Sugunasiri was not persuaded that this obiter comment is binding. Her Honour did not believe that the Court of Appeal, with this one single comment, intended the overturn the wide breadth of jurisprudence which indicates that non-earner benefits are not deductible from a loss of income award.

As a result, Justice Sugunasiri declined to reduce the plaintiff’s loss of income damages by the non-earner benefits received by the plaintiff.