In Sanson v. Paterson (Ont CA, 2023) the Court of Appeal considers deducting collateral disability benefits, here from 'future care' damages:
[45] The appellants also submit that the trial judge erred in not deducting from the respondent’s past loss of income award the respondent’s business expense benefits of $60,000 received from Manulife. They submit that these were payments received by or available to the respondent for income loss or loss of earning capacity under an income continuation benefit plan within the meaning of s. 267.8 of the Insurance Act, R.S.O. 1990, c. I.8.
[46] Section 267.8(1) of the Insurance Act states:
In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
...
2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
[47] The trial judge did not err in declining to deduct the respondent’s business expense benefits of $60,000 from the award for past loss of income. These benefits did not amount to an “income continuation benefit plan”. They did not represent any income replacement and the trial judge properly concluded that the benefits were not based on pre-collision income.
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