



COURT OF APPEAL FOR ONTARIO

CITATION: El-Khodr v. Northbridge Commercial
    Insurance Company, 2021 ONCA 440

DATE: 20210621

DOCKET: C68343

Doherty, Pepall
    and Thorburn JJ.
A.

BETWEEN

Kossay El-Khodr

Applicant (Appellant)

and

Northbridge
    Commercial Insurance Company

and Hughes Amys LLP

Respondents (
Respondent
)

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

Harvey Klein, for the respondent

Heard: February 19, 2021 by videoconference

On appeal from the judgment of Justice Heather
    J. Williams of the Superior Court of Justice, dated April 17, 2020, with
    reasons reported at 2020 ONSC 2319.

Thorburn J.A.:


OVERVIEW

[1]

In Ontario, parties injured
    in an automobile accident can receive no fault first-party benefits through receipt
    of statutory accident benefits (SABs). SABs are required by statute to be
    included in all automobile insurance policies. They provide a person injured in
    an accident, whether or not they are at fault, access to medical, rehabilitation,
    and other benefits to assist with their recovery.

[2]

An injured person may also
    bring a legal action against the at fault driver in tort (the tort defendant).
    There is often overlap between the compensation provided pursuant to the SABs
    and the award of damages in a civil proceeding.

[3]

Section 267.8 of the
Insurance
    Act
, R.S.O. 1990, c. I.8, therefore provides that tort awards must be
    reduced by corresponding categories of SABs received. This is accomplished by deducting
    those SABs received before trial from the damages awarded and by either holding
    in trust those SABs received after trial or by assigning the SABs benefits payable
    after trial to the tortfeasor or his insurer.

[4]

The appellant, Kossay
    El-Khodr, suffered catastrophic injuries in a motor vehicle accident. Royal
    & Sun Alliance Insurance Company of Canada (Royal) is Mr. El-Khodrs SABs
    insurer. The respondent, Northbridge Commercial Insurance Company
    (Northbridge), is the insurer for the tort defendant and conducted the
    defence on the tortfeasors behalf.

[5]

The jury awarded Mr.
    El-Khodr substantial damages payable by the tortfeasor. Northbridge, as insurer
    for the tortfeasor, sought an assignment of certain accident benefits payable by
    Royal to Mr. El-Khodr. While the trial judge assigned some benefits, the
    assignment of benefits for future medication and assistive devices and future professional
    services was denied.

[6]

Northbridge appealed the decision
    (the Assignment Appeal) to this court. After the Assignment Appeal was heard
    but before reasons were released, Royal, Northbridge, and Mr. El-Khodr entered
    into Minutes of Settlement. Under the minutes of settlement, Royal settled
    $385,000 into a trust for the benefit of the appellant and Northbridge in full
    and final satisfaction of any and all entitlement to medical and
    rehabilitations benefits. The Minutes of Settlement provided, as set out in
    detail below, that this sum would be held by Hughes Amys LLP, counsel to Northbridge,
    and released either to Mr. El-Khodr or Northbridge depending on the outcome of
    the Assignment Appeal. Specifically, Northbridge would receive the funds in
    the event that the said appeal is allowed and an assignment of Kossay El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge.

[7]

In September 2017, the Assignment
    Appeal was granted and this court ordered that the amounts payable by Royal to
    Mr. El-Khodr for future medication and assistive devices, and for professional
    services for specified benefits up to the amount of the jury award, be assigned
    to Northbridge: see
El-Khodr v. Lackie
, 2017 ONCA 716, 139 O.R. (3d)
    659, leave to appeal refused, [2017] S.C.C.A. No. 461.

[8]

The application judge was asked
    to interpret the Minutes of Settlement in light of the Assignment Appeal and determine
    whether the preconditions for the transfer of funds to Northbridge in the
    Minutes of Settlement were satisfied.

[9]

Mr. El-Khodr argued that
    this court, in the Assignment Appeal, did not order the assignment of Mr.
    El-Khodrs entitlement of medical and rehabilitation benefits as it assigned
    only part of those benefits and, as such, the second precondition to the
    transfer of funds was not satisfied. The application judge rejected this
    approach and held that the conditions set out in the Minutes of Settlement were
    met. She therefore ordered that the $385,000 amount in the Settlement Agreement
    be released to Northbridge.

[10]

Mr. El-Khodr appeals the
    application judges order to transfer the $385,000 to Northbridge.

[11]

For the reasons that follow,
    I would dismiss the appeal.

BACKGROUND

[12]

The issue on this appeal is
    whether the application judge made a palpable and overriding error of fact or an
    extricable error of law in failing to properly construe the preconditions for
    payment to Northbridge in the Minutes of Settlement.

[13]

In order to assess whether
    the application judge erred in her interpretation of the Minutes of Settlement,
    it is necessary to understand (a) the available approaches to the assignment of
    the SABs benefits, (b) the background facts and terms of the Minutes of
    Settlement (c) the decision of this court on the Assignment Appeal and (d) the
    reasons of the application judge.

A.

The Available
    Approaches to the Assignment of Sabs

[14]

In Ontario,
Statutory
    Accident Benefits Schedule,
O. Reg. 34/10, under the
Insurance Act
,
    enables parties injured in an automobile accident to receive no-fault first-party
    benefits while at the same time suing the at-fault driver in tort.

[15]

Because of the overlap
    between the compensation provided pursuant to the SABs and the damage awards,
    s. 267.8 of the
Insurance Act
provides that the tort award must be
    reduced by corresponding categories of SABs received. Section 278.8(12) addresses
    the assignment of SABs payable after trial and provides as follows:

Assignment of future collateral benefits

(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.

[16]

As noted above, the benefits
    to be assigned are described in the Act only in broad categories: income loss,
    loss of earning capacity, and expenses that have been or will be incurred for
    health care or other pecuniary loss.

[17]

Until the decisions in
Carroll
    v. McEwen
, 2018 ONCA 902,
143 O.R. (3d) 641,
and
Cadieux v. Cloutier
, 2018 ONCA 903, 143 O.R. (3d) 545, leave to appeal
    to refused, [2019] S.C.C.A. No. 63, courts applied two different methods to address
    the overlap between damages awarded and SABs received: (a) the apples-to-apples
    or strict matching approach, which required temporal and qualitative matching
    of SABs to specific heads of tort damages; and, (b) the silo approach, which
    only includes three broad categories of SABs under the
Insurance Act
:
    income replacement benefits, health care benefits, and other pecuniary losses.
    Under the silo approach, tort damages are only required to match generally
    with a corresponding SABs category.

[18]

In
Carroll
and
Cadieux
,
    companion appeals, a five-member panel of this court adopted the silo
    approach to the treatment and matching of SABs to tort damages under section
    267.8 of the
Insurance Act
. The panel held that the strict matching
    approach, developed in
Bannon v. McNeely
(1998), 38 O.R. (3d) 659
    (C.A.), was no longer to be followed. One of the stated benefits of the silo
    approach was that it would promote greater efficiency in motor vehicle accident
    litigation.

[19]

Carroll
and
Cadieux
were rendered after the Assignment
    Appeal was decided in September 2017.

B.

Background Facts and
    Terms of the Minutes of Settlement

The Tort Claim

[20]

In January 2007, the
    tortfeasors vehicle rear-ended a two-truck driven by Mr. El-Khodr, who suffered
    serious injuries. He brought an action against the driver and owner of the vehicle.

[21]

Liability for the collision was
    not at issue by the time of trial, which proceeded before a jury. The parties
    asked the jury to assess the tort damages in respect of the following
    categories: (i) past loss of income; (ii) general damages for pain and
    suffering and loss of enjoyment of life; (iii) future loss of income; and (iv) future
    care costs.

[22]

Mr. El-Khodr was awarded global
    damages in the amount of $2,850,977.80.

[23]

The amounts awarded for
    future care costs included (i) future attendant care costs/assisted living in
    the amount of $1,450,000; (ii) future professional services, such as physiotherapy
    and psychology, in the amount of $424,550; (iii) future housekeeping and home maintenance
    services in the amount of $133,000; and (iv) future medication and assistive devices
    in the amount of $82,429.

[24]

The damages were paid in
    full on August 10, 2015.

[25]

After the verdict, the trial
    judge made a series of rulings addressing, among other things, the assignment
    of SABs: see
El-Khodr v. Lackie
, 2015 ONSC 5244, 79 C.P.C. (7th) 356.

[26]

She held that income
    replacement and attendant care benefits payable by Royal to Mr. El-Khodr be
    assigned to the tortfeasors insurer, Northbridge, for specified periods, and that
    housekeeping benefits be assigned to Northbridge until the SABs received
    equalled the amount of the jury award. No SABs relating to future professional
    services and medications and assistive devices were assigned. In denying the
    assignment of these benefits, she reasoned that benefits should be assigned
    only if it is absolutely clear that the plaintiffs entitlement to such
    benefits is certain and that the plaintiff received compensation for the same
    benefits in the tort judgment, citing
Gilbert v. South
, 2014 ONSC
    3485, 120 O.R. (3d) 703, at para. 9. She found that 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.

Northbridges Appeal

[27]

As discussed above, Northbridge
    appealed the trial judges rulings respecting the assignment of benefits to
    this court. In its Supplementary Notice of Appeal, Northbridge claimed a total
    assignment of future SABS payable to Mr. El‑Khodr from his insurer,
    including all SABs payable for future healthcare expenses that the trial judge
    had denied. Northbridge argued that the approach taken by the trial judge
    effectively allowed double recovery and took the position that the silo
    approach to the assignment of accident benefits should be taken.

[28]

Mr. El-Khodr took the
    position that the matching approach should be followed and that [t]he trial
    judge granted the assignments which she was able to match with the jury verdict,
    and denied those which she could not match for each collateral benefit listed
    in Section 267.8 of the
Insurance Act
. This was in accordance with
    the approach adopted by this court in
Bannon v. McNeely
.

The Minutes of Settlement

[29]

After the Assignment Appeal was
    argued in April 2017 but before the decision was rendered in September, Mr.
    El-Khodr was scheduled to proceed to arbitration before the Financial Services
    Commission of Ontario against Royal in relation to attendant care benefits and
    a rent subsidy. The value of the rent subsidy in dispute was estimated at
    $50,468. Northbridge was added as an interested party by virtue of its standing
    as assignee of the attendant care benefits.

[30]

On June 30, 2017 counsel for
    Mr. El-Khodr sent two emails to opposing counsel which read as follows:

To be clear, we are not asking Northbridge to
    forfeit its appeal. On the contrary,
the outcome of the appeal determines
    who gets the monies that you are going to be holding in trust. We do, however,
    expect these Minutes to settle all issues between Northbridge and [Mr. El-Khodr]
    going forward
.



[A]s
this settlement is intended to resolve
    all outstanding issues between the parties, subject only to the outcome of the
    appeal
, I'm not sure how this comes out of left field for Northbridge. This
    was the point of the winner take all figures that we had agreed upon. [Emphasis
    added.]

[31]

Later that day, the Minutes
    of Settlement were signed with Mr. El-Khodrs accident benefits insurer, Royal,
    which addressed medical and rehabilitation benefits.

[32]

Paragraph 4 of the Minutes
    of Settlement reads as follows:

The sum of $385,000.00, payable under
    paragraph 3 hereof, shall be payable to [Northbridges counsel]
HUGHES AMYS
    LLP IN TRUST
for the benefit of both Applicants herein, pending release of
    the decision of the Court of Appeal for Ontario in
El-Khodr v. Lackie
,
    court file number C60918, which appeal was argued on April 4, 2017, decision
    reserved. The following applies upon receipt of the Court of Appeals decision:

(a)

in the
    event that the appeal with respect to Justice Roccamos refusal to grant an
    assignment of medical and rehabilitation benefits to Northbridge is dismissed
    by the Court of Appeal, the sum of
$385,000.00
held in trust by
HUGHES
    AMYS LLP
shall be released forthwith to Mr. El-Khodr, by cheque made
    payable to [Mr. El-Khodrs counsel]
CONNOLLY OBAGI LLP IN TRUST;

(b)

in the
    event that the said appeal is allowed and an assignment of Mr. El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge,
    the sum of
$385,000.00
held in trust by
HUGHES AMYS LLP
shall be
    released forthwith to the Applicant, Northbridge.

C.

Disposition of the Assignment
    Appeal

[33]

This court rendered its
    judgment in the Assignment Appeal on September 19, 2017. The court allowed the
    appeal, and amended the trial judges order so that Royals future payments to
    Mr. El-Khodr for medication and assistive devices up to a total of $82,429.00 (i.e.,
    the amount the jury had awarded for medication and assistive devices) and
    future payments for specified professional services up to a total of
    $424,550.00 (i.e., the amount the jury had awarded for professional services)
    be assigned to Northbridge.

[34]

In so doing, MacFarland J.A.
    held, at paras. 60-61 and 75-80, that:

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.

[A]lthough the legislation requires us to
    match apples with apples, the relevant categories of apples are the statutes
    categories, not the common laws.



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.

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.

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.

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.

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.

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. [Emphasis
    in original omitted. Emphasis added]

[35]

In arriving at this
    conclusion, she held, at para. 35, that, strict qualitative and temporal
    matching requirements should not be applied to s. 267.8 and the court should
    instead match benefits that will be received after trial to the broad, enumerated
    statutory categories only in a general way.

[36]

After the Assignment Appeal
    was rendered, the appellant brought an application to the Superior Court to
    interpret para. 4 of the Minutes of Settlement in light of this courts
    decision.

D.

The Application
    Judges Order

[37]

On the application, Mr.
    El-Khodr took the position that the $385,000 held in trust did not need to be
    paid to either himself or Northbridge in its entirety. Although he conceded
    that he did not win the appeal, he argued that para. 4(b) of the Minutes of
    Settlement did not apply because this court ordered that only some, but not
    all, of his future medical and rehabilitation benefits were assigned to
    Northbridge.

[38]

The application judge
    recognized that, at the time of the Assignment Appeal, there were two lines of
    authorities with respect to the assignment of accident benefits: the matching
    approach which requires that the tort award match the benefits sought to be
    assigned and the silo approach that requires no matching but simply that the
    benefits fall within the category of benefit, in this case, the health care
    category. She held at paras. 27 to 35 of her reasons that,

I take Mr. El-Khodrs point that Northbridges
    supplementary notice of appeal requested a total assignment of future SABS
    benefits and that Northbridges appeal factum said that it was seeking an
    Assignment of all future health care expenses While more precision might
    have been applied to both phrases, it is evident from reading the two documents
    in their entirety that Northbridge was appealing the trial judges refusal to
    grant Northbridge an assignment of Mr. El-Khodrs entitlement to future
    benefits for medication and assistive devices and for professional services,
    the benefits referred to in paragraphs 3 and 4 of the trial judges order.



When the minutes of settlement were prepared
    and signed in June 2017, the scope of the appeal as it related to the
    assignment issue was not a mystery to the parties. The appeal had already been
    argued.
The parties knew that if Northbridge was successful on the appeal,
    it would be awarded assignments of the future medical and rehabilitation
    benefits to which the trial judge, in paragraphs 3 and 4 of her August 26, 2015
    order, had held it was not entitled
.

Mr. El-Khodr made the point that his
    $385,000.00 settlement of June 30, 2017 included amounts for benefits that were
    not ultimately assigned to Northbridge by the Court of Appeal, including a rent
    subsidy. He argued that it would be unfair for Northbridge to receive the entire
    amount of the settlement when the assignment it was granted by the Court of
    Appeal was related only to certain specified benefits.

I do not accept this argument because, as I
    have already observed,
Mr. El-Khodr was aware of the scope of the appeal
    when he signed the minutes of settlement. Mr. El-Khodr also knew, when he
    signed the minutes of settlement, that the winner of the appeal would receive
    the entire amount of the settlement. This is evident from the wording of the
    minutes of settlement and also from an email exchange dated June 30, 2017
    between Mr. El-Khodrs lawyer and the lawyer who was then representing
    Northbridge
.

In terms of fairness, as MacFarland J.A.
    observed at para. 78 of the Court of Appeals decision, Mr. El-Khodr was paid
    the full amount of his judgment in August 2015 and was therefore fully
    compensated in respect of all of his losses arising from his motor vehicle
    accident. Further, the amount the jury awarded, and that Northbridge paid to
    Mr. El-Khodr, for future medication and assistive devices ($82,429.00) and
    future professional services ($424,550.00) exceeded the amount of the
    $385,000.00 settlement by $121,979.00.

For these reasons, I also reject Mr.
    El-Khodrs argument that paragraph 4 of the minutes of settlement was
    frustrated by the outcome of the appeal.

[39]

The application judge concluded
    that, Northbridge was wholly successful on the appeal. The application judge therefore
    decided that the $385,000 attributable to Mr. El-Khodrs medical and
    rehabilitation benefits paid by Royal should be released to Northbridge.

THE POSITIONS OF THE PARTIES ON THIS APPEAL

[40]

Mr. El-Khodr renews his
    argument that the Assignment Appeal did not trigger the payment of $385,000.00
    to either party because
both
conditions in the Minutes were not met:
    (a) Northbridges appeal was allowed, but (b) the assignment of
all
future medical and rehabilitation benefits to Northbridge was not granted. Mr.
    El-Khodr submits the provision in the Minutes of Settlement was therefore
    frustrated.

[41]

Mr. El-Khodr claims the
    application judges determination rendered the second precondition meaningless
    and, in doing so, she committed an extricable error of law. Moreover, he claims
    the finding that Northbridge received what it sought on appeal constitutes a
    palpable and overriding error of fact. Mr. El-Khodr therefore seeks an order
    that the remaining settlement monies be apportioned in accordance with the
    value of the SABs assigned and not the value of all SABs both assigned and not
    assigned in the Assignment Appeal.

[42]

Northbridge does not dispute
    that it was seeking a total assignment of all health care expenses and
    advocating for the silo approach. However, Northbridge submits that the
    request for a total assignment of future SABS benefits payable to the
    Plaintiff by [Royal] in the relevant notice of appeal was only in respect of
    the trial judges refusal to award an assignment of future entitlement to
    medical benefits specifically for future medication and assistive devices and
    professional services. There were no other medical and or rehabilitation
    benefits that could possibly have been assigned to Northbridge pursuant to the
    judgment below and the issues raised on appeal. On this basis, the conditions
    set out in para. 4(b) of the Minutes of Settlement were met and properly given
    effect by the trial judge.

STANDARD OF REVIEW

[43]

The issue in this appeal
    turns upon the interpretation of a contract. The appellant must establish a
    palpable and overriding error of fact or an extricable error of law. Such
    errors include the application of an incorrect principle, the failure to
    consider a required element of a legal test, or the failure to consider a
    relevant factor:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at paras. 52-53.

[44]

The court must interpret the
    contract as a whole and assign meaning to its terms. The Court must avoid
    rendering one or more of those terms ineffective. To do so, constitutes an extricable
    error of law justifying appellate intervention.
Environs Wholesale Nursery
    LTD. v. Environs Landscape Contracting LTD.
, 2019 ONCA 547, at para 44;
3113736
    Canada Ltd. v. Cozy Corner Bedding Inc.
, 2020 ONCA 235, 150 O.R. (3d) 83,
    at para. 34;
Angus v. Port Hope (Municipality)
, 2017 ONCA 566, 28
    E.T.R. (4th) 169, at paras. 66-67 and 109-110, leave to appeal refused, [2017]
    S.C.C.A. No. 382.

ANALYSIS AND CONCLUSION

[45]

The issue on this appeal is
    whether the application judge made a palpable and overriding error of fact or
    an error of law in interpreting the words in the Minutes of Settlement: in the
    event that the said appeal is allowed and an assignment of Mr. El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge.

[46]

In my view, the application
    judge was correct to hold that the terms of the Minutes of Settlement were satisfied
    and the contract was not frustrated because:

a)

Although Northbridge spoke of an Assignment of
    all future health care expenses in its factum, the only issue on the Assignment
    Appeal was the assignment of Mr. El-Khodrs entitlement to future benefits for
    medications and assistive devices and for professional services, referred to in
    paras. 3 and 4 of the trial judges order. These were the only benefits at issue
    on appeal. The words entitlement to medical and rehabilitation benefits in
    the Minutes of Settlement must be interpreted in this context;

b)

The parties understood, when the Minutes of
    Settlement were signed, that as a result of the Assignment Appeal, these
    benefits would either be assigned to Northbridge or the trial judges decision
    not to assign these benefits would be upheld;

c)

This court amended the trial judges order
    denying the assignment of these benefits and replaced paras. 3 and 4 with a
    paragraph ordering that
any
amounts for future medication and assistive
    devices and 
any
amounts for professional services benefits (emphasis
    added) as enumerated, up to the amount of the jury awards, be assigned. This
    court also held that only the categories set out in the statute need be
    matched;

d)

Although Mr. El-Khodr submitted to the
    application judge that the $385,000 amount in the Minutes of Settlement
    included a rent subsidy in the amount of $50,468 which was not covered by these
    benefits, Mr. El-Khodr was aware (a) that this was a full and final settlement
    subject only to the outcome of the Assignment Appeal and (b) the Assignment
    Appeal was only in respect of future medication and assistive device and professional
    services. This understanding is also reflected in his counsels email communications
    with opposing counsel; and,

e)

Contrary to the suggestion made by counsel for
    Mr. El-Khodr, the application judge did not order the assignment of
all
settlement amounts for these benefits. She only assigned medical and
    rehabilitation benefits in the amount of $385,000 as per the Minutes of
    Settlement.

Mr.
    El-Khodr was awarded and paid $82,429 for future medication and assistive
    devices and $424,550 for professional services before the settlement was reached.
    Those sums exceed the $385,000 settlement amount for medical and rehabilitation
    benefits set out in the Minutes of Settlement by $121,979.

[47]

For these reasons, I do not
    agree with the appellants argument that the outcome of the Assignment Appeal
    was not contemplated by the parties at the time they entered the Minutes of
    Settlement and, thus, the settlement agreement was frustrated.

[48]

The application judges interpretation
    is consistent with the reasoning of this court on the Assignment Appeal. When assigning
    the medication and assistive devices and professional services benefits to
    Northbridge up to the amount of the jury award, this court recognized, at
    paras. 78-79, that:

[I]t 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.

If there is no trust or assignment  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.

[49]

Moreover, the panel hearing
    the appeal in this case in 2017, held that strict qualitative and temporal
    matching requirements should not be applied in deciding which benefits to
    assign, the relevant categories are the statutes categories not the common
    laws and the strict matching approach in
Bannon v. McNealy
may no
    longer be good law in this province.

DISPOSITION

[50]

For these reasons, I find the
    application judge did not fail to take into account a precondition in the
    Minutes of Settlement and thereby make an error of law, nor did she make a palpable
    and overriding error of fact in construing the preconditions for payment to
    Northbridge in the Minutes of Settlement. I would therefore dismiss the appeal.

[51]

In accordance with the
    agreement reached by the parties, costs of the appeal to the respondent in the
    amount of $7,500.

Released: June 21, 2021 D.D.

J.A.
    Thorburn J.A.

I
    agree. Doherty J.A.

I
    agree. S.E. Pepall J.A.


