Nemchin V. Green: The Deduction Of Collateral Benefits At Trial

The plaintiff was injured in a car accident in 2010. The trial in 2017 led to a jury verdict of $125,000 in general damages and $600,000 in future loss of income. The plaintiff did not seek an award of past loss of income.

The defendant sought an order from the trial judge in the form of an assignment of the long-term disability ("LTD") benefits which were still being paid to the plaintiff at the time of the trial, in accordance with s.267.8(12) of the Insurance Act (Ontario).

The plaintiff argued that the defendant was not entitled to the assignment as the defendant refused to permit a question to go to the jury which would allow the court to understand the annual loss of income and the number of years over which the jury awarded it. In the absence of an answer to this question, argued the plaintiff, it would not be possible to match, on a temporal basis, the LTD benefits received over time against a specific annual income.