This recent case reveals the many challenges litigants, their counsel, judges and juries face when trying to navigate their way through the collateral deduction provisions of the Insurance Act. Thankfully the trial judge in this case provides some sage advice and guidance.
This case involved a plaintiff who was catastrophically injured. The plaintiff and his family were awarded significant damages. The plaintiff received a lot of collateral benefits following the accident, and these were likely to continue well into the future. The trial was before a jury. As is often the case, confusion arose over how to contend with the collateral benefits: in this instance, the benefits from Manulife under a Financial Disability Benefits Plan.
This case is helpful because the judge provided some sage advice and guidance on how collateral benefits are to be considered by a jury. In short, collateral benefits shouldn’t be considered by the jury at all: their task is to assess damages on a gross basis, irrespective of how much or how little the plaintiff received, or will be receiving, by way of collateral benefits.
In this case, the confusion arose right from the outset. During their opening submissions, the lawyer for the plaintiff presented their damage figures to the jury net of the collateral benefits (ie: with the collateral benefits already taken off).
In his endorsement, the judge recounts how he advised the parties that there needs to be a great deal of clarity when presenting damage figures to the jury so as to avoid confusion. Put another way, when the jury delivers their ruling on damages, the court and the litigants need to know with absolute certainty whether that figure is a gross figure or a net figure. Plaintiffs’ counsel assured the judge that everything would be made clear when their economic loss expert testified.
Unfortunately, the plaintiffs’ economic loss expert only made things worse, because after he correctly told the jury about his views on the gross amount of the plaintiffs’ losses, he then proceeded to share his views on what collateral deductions were required to get to the injured plaintiff’s net loss figures.
Once again, the trial judge intervened, and then provided a proper roadmap: namely, leave the decisions about what happens with the collateral benefits to the trial judge, and get from the jury their assessment of the case on a gross basis. The directive came at paragraph 18 of this decision, which reads as follows:
“Following the plaintiffs’ expert’s testimony, I again raised my concern with counsel. It was my view that the jury should be instructed to determine Mr. McCurdy’s past and future income loss without regard to any collateral benefits. It is the trial judge’s responsibility to make the appropriate deductions, or make a trust or assignment order, following the trial. I cited Malfara v. Vukojevic, 2014 ONSC 6604 and Girao v. Cunningham, 2020 ONCA 260, at para. 90.”
At paragraph 20, the trial judge provided more valuable instruction for the bar by outlining how juries should be instructed on this issue, and how jury questions can be crafted to ensure that there is clarity:
“In my instructions to the jury, I was clear that both past and future income loss was to be assessed on a “gross” basis, without any deductions being made on account of any benefits that the plaintiff had already received or might receive in the future. I crafted jury questions that included a box for the jury foreperson to check off confirming that the jury had not made any deductions for collateral benefits.”
Frankly, it can be no other way. The jury must be instructed to value the case on gross figures, because what happens with the collateral benefits is for the judge to decide. Many legal issues can arise, such as:
- Is the collateral benefit even deductible?;
- If deductible, what is the proper handling for future benefits: are they deducted, or held in trust, or assigned in favour of the defendant(s)?
- If deducted, based on what present value calculation?
These are all legal questions – the jury should not be involved with these issues. Their task is simply to assess the plaintiff’s losses on a gross basis, irrespective of what the plaintiff received, or may receive in the future, from other sources.
Even though the amount of a collateral benefit (past and future) is irrelevant to the jury, and some may argue that it is a figure that should not be discussed in front of the jury given that it might create bias (ie: if others have paid that much already, we must award more than that, or alternatively, if the plaintiff received that much already, they received enough and we shouldn’t give them anymore), the reality is that the quantification of the collateral benefits is important to the trial judge and hence the evidence pertaining to these amounts must be tendered, especially while the experts are in the stand.
It would be very cumbersome to have the jury excused while that collateral benefit quantification testimony is tendered, and litigants are unlikely to demand the jury’s leave because they probably prefer to retain the ability to leverage the potential bias that is created when the jury is made aware of how much was paid, or might be forthcoming, in collateral benefits. It will be interesting to see if the procedural handling of this issue one day is altered to preclude juries from hearing evidence pertaining to the quantification of collateral benefits.
McCurdy, et al. v. Maille, et al., 2023 ONSC 6857
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc6857/2023onsc6857.html