





CITATION:
McDonald v. Kwan, 2011 ONCA 789



DATE: 20111215



DOCKET: C53239



COURT OF APPEAL FOR ONTARIO



Rosenberg, Cronk and Watt JJ.A.



BETWEEN



James
          McDonald, Dorothy June McDonald

and Judith McDonald
          Andrew



Plaintiffs (Respondents)



and



Hoi Ko Kwan
and Po Ping Lana Lai



Defendants (Appellant)



John M. Burnes, for the appellant



Jeffrey Wm. Strype, for the respondents



Heard:
December 7, 2011



On appeal from the judgment of
          Justice Eva Frank of the Superior Court of Justice, dated January 4, 2011, reasons
          reported at 2010 ONSC 5861.



ENDORSEMENT



[1]

The appellant appeals from the trial judges assessment of damages for
    future loss of income in a personal injury negligence action.  At the
    conclusion of oral argument, we dismissed the appeal for reasons to follow. 
    These are those reasons.

[2]

Although the appellant raised various grounds of appeal in his factum
    concerning the damages awarded at trial for future loss of income, during oral
    argument his challenge of this award was narrowed to two main issues.

[3]

The appellant argued that the trial judge erred: (1) by failing to order
    disclosure of the settlement amounts received by the respondent on the
    compromise of litigation arising from two later motor vehicle accidents
    involving the respondent and; (2) by failing to deduct those settlement amounts
    from the gross damages awarded in this case for future income loss.

[4]

Next, the appellant maintained that the trial judge erred by failing to
    hold that the statutory trust and assignment pertaining to the respondents
    receipt of future collateral benefits, which accrues to the appellants benefit
    by reason of ss. 267.8(9) and (10) of the
Insurance Act
, R.S.O. 1990, c.
    I.8 (the Act), extends to future pension benefits paid to the respondent by
    his former employer or under the Canada Pension Plan.

[5]

We reject these arguments.

[6]

At trial, the parties agreed on the method by which the trial judge was
    to quantify the damages recoverable by the respondent from the appellant. 
    Based on
Hicks v. Cooper
, [1973] O.J. No. 772 (C.A.), that method
    contemplated that the trial judge would globally assess the damages caused by
    all three motor vehicle accidents and then subtract the damages caused by the
    second and third accidents from the global assessment.  The parties also agreed
    that damages attributable to the second and third accidents would be quantified
    on the basis of a percentage of the total damages.

[7]

This overall approach to the assessment of damages ensured that the
    respondent would not realize any double recovery for the injuries at issue. 
    Rather, he would recover only what was owed to him as a result of the
    appellants own negligence.

[8]

Three additional aspects of the damages award for income loss are
    noteworthy.

[9]

First, the trial judge held that the accident involving the appellant
    was the sole cause of the respondents past and future loss of income.  On her
    unchallenged factual findings, on a global assessment of the respondents
    losses, no loss of income could be attributed to either of the two subsequent
    accidents as the respondent was already permanently disabled from employment
    when the subsequent accidents occurred.

[10]

Second, the appellant is entitled to deduct 100% of the past collateral
    benefit payments received by the respondent from the income loss damages,
    without regard to any possible deductibility of those payments from the damages
    or settlement proceeds otherwise payable in the actions relating to the second
    and third accidents.  In other words, regardless of the deduction claims of the
    defendants in the other two actions, the appellant is to enjoy a full deduction
    for all past collateral benefit payments.  This is a significant benefit to the
    appellant.

[11]

Third, as we have said, by operation of ss. 267.8(9) and (10) of the
    Act, the appellant is also entitled to payment of all future collateral
    benefits payable to the respondent, including Canada Pension Plan payments and
    long-term disability benefits.

[12]

In our view, in all these circumstances, it is not open to the appellant
    to also seek to deduct, on the ground of double recovery, the settlement
    proceeds payable to the respondent in the actions relating to the second and
    third accidents from the damages awarded to the respondent at this trial for future
    income loss.  As the trial judge put it, the approach to the assessment of
    damages employed in this case ensured that the appellant was called upon to
    pay no more than what is owed to the [respondent] as a result of this
    [appellants] negligence.

[13]

This is also a full answer to the appellants complaint regarding
    non-disclosure of the details of the settlements pertaining to the second and
    third accidents.  Whatever may be said about the merits of the appellants disclosure
    requests before or at trial, the method ultimately used for the assessment of
    damages and the trial judges causation findings concerning the respondents
    income loss render such disclosure unnecessary and irrelevant.

[14]

Nor do we accept the appellants complaint concerning the trial judges
    ruling in respect of the respondents future pension benefits.  As we
    understood his argument, the appellant submits that he is entitled to an
    assignment of the pension benefits that may be payable to the respondent in the
    future by his former employer or under the Canada Pension Plan until the
    respondent reaches his 65th birthday, providing that the respondent elects to
    receive those pension benefits prior to turning 65 years of age.
[1]

[15]

The trust provisions of s. 267.8 of the Act make no mention of pension
    benefits.  The trial judge rejected this claim as speculative.  She was right
    to do so.  There is no suggestion that the respondent intends to pursue the
    early receipt of his pension benefits.  Should he elect to do so in the future
    by opting for early retirement, the appellant acknowledges that it will be open
    to him to seek to recover some of the payments at issue by resorting to
    arbitration under the arbitration provisions of the assignment agreements to be
    entered into by the parties in relation to s. 267.8 of the Act.

[16]

Accordingly, for the reasons given, the appeal was dismissed.  The
    respondent is entitled to his costs of the appeal, fixed in the amount of
    $20,000, inclusive of disbursements and all applicable taxes.

M.
    Rosenberg J.A.

E.A.
    Cronk J.A.

David
    Watt J.A.





[1]
This argument assumes that, as a matter of law, the respondents Canada Pension
    Plan benefits may be the subject of an assignment agreement in light of the
    statutory trust provisions of s. 267.8 of the Act.  It is unnecessary to
    address this issue for the purpose of this appeal and we decline to do so.


