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ICBC UMP Claims and Trial Disbursements

Written by admin on . Posted in ICBC UMP Cases. 28 Comments on ICBC UMP Claims and Trial Disbursements

An Arbitration determination was recently released addressing the jurisdiction of an UMP Arbitrator to award disbursements for expenses for items initially used in a tort trial then subsequently used in an UMP Arbitration.  In short Arbitrator Camp held that there is jurisdiction for recovery of such costs provided they were reasonably incurred.
In the recent case (Undisclosed v. ICBC) the claimants were awarded damages in a Washington State trial.  The Defendant was underinsured.  When the Claimants applied to ICBC for payment they needed to re-try the value of their cases pursuant to BC law.   Although their damages were assessed at a far lesser value than they were in the Washington State trial, they nonetheless were successful in proving their damage claims.  The Claimants relied on much of the same evidence in the ICBC UMP hearing as they did in the initial trial.
Following arbitration the Claimants applied for an order that ICBC pay for their disbursements incurred in proving their damages claim.  ICBC opposed arguing that the arbitrator “has no jurisdiction to award costs that would include legal fees ad disbursements in the Washington State action“.  While arbitrator Camp agreed “with this bald assertion” he went on to find that he could award disbursements even for items initially used in the Washington State trial.  In so concluding Arbitrator Camp provided the following reasons:
19.  Dealing first with the issue of the nature of costs that I can properly award, I find that as a result of section 148.2(2) and section 148.2(3) of the Regulation, I am constrained to only awarding party and party costs and I am not permitted to award actual reasonable legal fees as specified in section 11(2)(a) of the Commercial Arbitration Act.  The parties agreed that the jurisprudence stemming from the Rules pertaining to costs (now Rule 14) ought to be applied mutatis mutandus to the UMP arbitration process…
31. …An UMP arbitrator has a broad discretion to award party and party costs including reasonable disbursements that are utilized in the subject UMP arbitration process.   This is the approach I adopt for the reasons that follow.  The reasonable disbursements that I find are recoverable in these UMP proceedings find their genesis in the MVA which eventually gave rise to these arbitration proceedings.  Yes many of these reasonable disbursements were used in the Washington State trial but they were also necessary and used in these UMP arbitration proceedings.  There is no risk that there is any chance for double recovery of these disbursements by these claimants and I reiterate they are subject to the test of reasonableness.
32.  Finally, Mr. Mersey made the argument that any award of party and party costs and reasonable disbursements are governed by Washington State law which, as noted above, severely restrains recoverable costs and disbursements relative to the law of British Columbia.  I disagree.  In my view there is no connection between entitlement of UMP claimants to party and party costs and reasonable disbursements pursuant to the British Columbia provisions of the Regulation and the Commercial Arbitration Act and the Rules of Procedure for Domestic Commercial Arbitration, and the provisions of Washington State law which severely restrains recoverable costs and disbursements.  I am bound to adhere to the former.

Future CPP Benefits and ICBC UMP Deductions

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 44 Comments on Future CPP Benefits and ICBC UMP Deductions

Last year an arbitration award was released addressing the deduction of future CPP benefits from an ICBC UMP Claim.
In last year’s case (ME v. ICBC) the 32 year old Claimant was severely injured in a 1997 motor vehicle collision.   She suffered serious brain trauma and as a result “was left functioning at a Grade 7 level in terms of her academics“.  Despite her long term injury the “very ambitious” claimant re-entered the workforce and by the time of her arbitration she had secured full time employment.  Prior to this the Claimant had received CPP benefits totally$78,542.94.  These benefits were terminated with the Plaintiff’s return to work.  It was agreed that ICBC could deduct this prior to paying out on the Claimant’s UMP Claim.
The parties could not agree as to how much more ICBC could deduct given the possibility of future CPP payments.  ICBC argued that the present day value of future CPP benefits should deducted, namely $135,652.  Arbitrator Boskovich found that while such a deduction would be unreasonable a modest deduction should apply to address the reality that the Plaintiff may at some point in the future receive CPP benefits.  Arbitrator Boskovitch reduced ICBC’s UMP payment by just over $20,000 to take this risk into account.  In doing so the following reasons were provided:
102.  I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities.  That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.
103.  In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…
116.  It has been 13 years since the accident.  2010 will be the first full year of employment the Claimant has maintained since the accident.  To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.
117.  However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.
118.  That is not to say there is no risk whatsoever.  I cannot ignore the concerns outlined by the Claimant’s Mother.  As well, I cannot ignore the evidence of Dr. LeBlanc.  It may be difficult for the Claimant to find jobs over the course of her working life.  Such jobs must have structured routine, few distractions and no multi-tasking.  Her cognitive issues may be aggravated in unfamiliar and stressful situations.
119.  Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.
120.  The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80
For more on this topic you can click here to read my summary of the 2008 UMP Arbitration Award in SPW v. ICBC.

Only Two Ways to Get to UMP

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 99 Comments on Only Two Ways to Get to UMP

An important arbitration decision was released last year demonstrating that there are only two ways to get standing at an UMP arbitration proceeding; either with the consent of ICBC or by having an unsatisfied judgement against the tort feasor.  The case also addresses the effects of a tort release in subsequent UMP proceedings and lastly the consent requirement under s. 148.2(4)(b) of the Insurance (Vehicle) Regulation finding that ICBC needs to demonstrate real prejudice to rely on this section.
In last year’s case (GG v. ICBC) the Claimant was injured in a Washington State motor vehicle collision.  The at fault motorist had very low third party liability coverage and likely was underinsured for the circumstances.  The Claimant had Underinsured Motorist Protection (UMP) with ICBC.
The Claimant sued in Washington State and the at fault motorist admitted liability.   Since the Washington State court award would not be binding on ICBC regarding the value of the claim the Claimant sought ICBC’s permission to settle for policy limits and proceed to UMP arbitration to determine the value over and above this amount that would be payable.  ICBC would not consent to this.  The Claimant settled his claim and started an UMP proceeding.  ICBC challenged this arguing the Claimant did not have standing to do so.  Arbitrator Yule agreed finding there are only two ways to get standing in an UMP Claim. In dismissing the claim Arbitrator Yule provided the following reasons:
37.  The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration.  ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC.  The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law.  I agree.  However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.
This finding was fatal in and of itself to the Claim, however, Arbitrator Yule also addressed the effects of a full and final release as against the tort-feasor.  When the Claimant settled with the at fault driver the typical release was signed.  Arbitrator Yule found that signing this release absent ICBC’s consent compromised the Claimant’s rights to an UMP Claim and provided the following reasons:
61.  Accordingly, I am constrained to find that in the absence of the agreement of ICBC that the claimant may do so and still proceed to an arbitration of his UMP Claim, the entry of a Consent Dismissal Order in the Washington action and the provision of a Full and Final Release of SK mean that the claimant is no longer legally entitled to recover damages from SK and there is no “excess” damages that could be the subject of an UMP Claim.  Hence, the claimant is not entitled to advance an UMP claim now.

Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 49 Comments on Maternity Leave EI Benefits Not Deductible in ICBC UMP Claims


Since ICBC’s Underinsured Motorist Protection coverage is a “fund of last resort” there are many deductions ICBC is entitled to take advantage of before paying funds out to Claimants.  These deductions, however, do have limits and this was demonstrated in an UMP Arbitration Determination released last year.
In last year’s claim (Undisclosed v. ICBC) the three claimants were awarded damages after receiving injuries from an underinsured motorist in Washington State.   One of the Claimant’s damages included $95,000 for past income loss.  ICBC argued that $65,000 should be deducted from this assessment for EI benefits that the Claimant was or would be entitled to as a result of section 148.1(f.1) of the Insurance (Vehicle) Regulation.
Arbitrator Camp rejected ICBC’s argument and reduced the amount by a much more modest $3,034 figure which was the sum the Claimant actually received from EI.   In refusing to make the greater reduction advanced by ICBC Arbitrator Camp noted that EI Maternity Benefits are not deductible in UMP Claims finding as follows:
57.  Other than pure speculation as to future EI benefits, some of which may indeed be predicated on maternity which is completely unrelated to the underlying facts and circumstances giving rise to the UMP award and therefore to any issue of deductibility, ICBC has led no evidence pertaining to the deductibility of EI benefits.  I therefore find that ICBC has not met the onus of proving any amount to be deducted with respect to future EI benefits.

"No Authority" For ICBC Independent Medical Exam in UMP Arbitrations

Written by admin on . Posted in ICBC UMP Cases, independent medical exams, Uncategorized.


While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority.  This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State.  The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages.  The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam.  Arbitrator Camp provided the following reasons:
25.  I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation.  This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26.  I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case.  I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits.  See Rule 19.
27.  This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly.  This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners.  She has been examined under oath on two occasions on the subject of her damages.  All of this evidence is at hand.  Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28.  I conclude that I have no jurisdiction to order a form of independent medical examination.  I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.

"More Attention Needs to be Paid to the Rubric of 'Suffering' than 'Pain'"

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.

Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.
In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State.  At trial each was awarded over one million dollars.  As the at fault motorist was under-insured the Claimants applied to ICBC for UMP.  They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.
The collision injured all occupants of the vehicle all of whom were related to each other.  The Claimant and her three daughters were injured, some of these injuries were severe.  While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“.  In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:
97.  With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”.  I turn to a few fairly recent British Columbia decisions which offer guidance in this area….
102.  Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.
103.  In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident.  In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain.  Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).
104.  Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).
105.  I find that Mrs. T has suffered much more than just aches, pains and headaches.  Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above.  Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.

Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 56 Comments on Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision addressing whether ICBC could re-litigate quantum of damages after the issue was already decided in an out of Province trial.  In short the Arbitrator held that trial verdicts addressing liability are binding for UMP coverage purposes but awards addressing quantum are not binding as these need to apply the law of British Columbia.
In the recent case (Undisclosed v. ICBC) the Claimants were badly injured in a 1996 collision in Washington State.  The at fault driver had only $200,000 of insurance coverage.  The injured parties were each insured with $1 million of Underinsured Motorist Protection with ICBC.  They sued the ICBC insured driver in Washington State and were awarded global damages of $9.1 million with 5 of the 6 Claimants’ individual awards exceeding $1 Million.
The Claimants and ICBC could not agree on the amount of UMP Benefits payable and submitted the issue to arbitration.  The arbitrator was asked to decide if the quantum award from Washington State was binding (less applicable deductions) or if the issue could be re-litigated.  In finding that the Washington State jury award addressing damages was not binding Arbitrator Camp provided the following reasons:
21.  On the facts of this case ICBC concedes the claimants have satisfied all of the prerequisite requirements laid down for UMP coverage.  Hence, it is conceded that the Washington jury verdict established liability on the underinsured motorist, resolved issues of contributory negligence and established that the damages attributable to the fault of the underinsured motorist exceeded the insurance limits and assets available to compensate the claimants.  Put another way, it is conceded that the Washington jury verdict determined that the claimants are “insureds” and (the at fault motorist) is an “underinsured motorist” for the purposes of the UMP scheme.
22.  In the majority of cases, in my experience, the parties (ICBC and the claimants) agree that the prerequisites for UMP coverage have been satisfied and the parties arrive at a settlement pertaining to UMP compensation.  Where the parties cannot agree, ICBC can follow one of two courses of action.  ICBC can either require that the claimant(s) proceed to a tort trial to determine the prerequisites necessary for UMP arbitration, or they can agree that those prerequisites have been met and proceed to an UMP arbitration by consent.
23.  In this case, the evidence satisfies me that ICBC required a tort trial to determine the prerequisites necessary for UMP arbitration.  The claimants chose Washington State as the most favourable jurisdiction to proceed with the tort trial, for good and valid reasons which are not germane to the arbitration issue before me…
28.  Section 148.2(6)(a) relating to the legal entitlement to UMP coverage is relatively straightforward.  It says that where an accident for which UMP compensation is being sought occurs in another jurisdiction, the law of the place where the injury or death was suffered shall be applied to determine whether the claimants are legally entitled to recover UMP compensation and if a difference arises as to that legal entitlement, that difference shall be arbitrated under the Commercial Arbitration Act of British Columbia.  It is section 148.2(6)(b) relating to the measure of any damages and the assessment of the amount of UMP compensation payable that is at the nub of this arbitration…
33.  Turning to my interpretation of s. 148.2(6), I find that the section is properly interpreted to mean that issues of legal entitlement shall be determined by Washington law in this case and that the issues pertinent to quantum of damages shall be determined by the law of British Columbia.  I am fortified in coming to this interpretation because of the linkage between s. 148.2(6) and s. 148.1(5).  Section 148.1(5) constitutes a limiting provision and the limitation only works or works much better if the interpretation of s. 148.2(6)(b) is interpreted such that the issues pertaining to the quantum of damages shall be determined by the law of British Columbia.

Expert Report Admissibility Can Be Determined in Advance of UMP Arbitration

Written by admin on . Posted in BCSC Civil Rule 11, ICBC UMP Cases, Uncategorized.

In my continued efforts to create a searchable UMP Rulings Database, I summarize a 2009 ruling finding that expert report admissibility can be determined ahead of a scheduled arbitration.
In the 2009 decision (COSH v. ICBC) the Claimant was injured in a 2001 collision in California.   In the course of the proceeding the Claimant served an expert report from a rehabilitation consultant discussing future care needs.  ICBC brought an application seeking to exclude the report arguing it should be held “wholly inadmissible“.  The Plaintiff argued that the report should be admitted but in any event it was premature to decide the issue until Arbitration was underway and the report was formally tendered.
Arbitrator Yule ultimately held that the report was admissible but that certain portions went beyond the authors area of expertise.   Prior to reaching this decision Arbitrator Yule provided the following comments about adjudicating these applications prior to arbitration:
25. …I do not consider the fact that the report may never be introduced into evidence under Rule 40A(2) because COSH may elect to treat the report as notice and introduce Dr. V’s opinions viva voce at the Hearing under Rule 40A(3), as a reason for declining to address the Respondent’s objections.  In either instance there will arise the same question of admissibility, ie. whether some of his expressed opinions are outside the area of exprtise as outlined in the CV.  If his evidence were tendered through Dr. V. at the Hearing, the only difference would be that Dr. V. would give evidence and be questioned about his qualificaitons in the course of determining the scope of his admissible opinions.  However, the fundamental proposition of which the Respondent relies is that some of the opinions expressed in Dr. V’s report can only be properly given by someone wiht a degree in medicine and it is not disputed that Dr. V. does not hold such a degree.
26.  It also seems to me beneficial to both parties to know in advance of the new Hearing date whether the Respondent’s objection will be sustained….Some clarity on the admissibility of Dr. V’s opinions may assist both parties in determining what additional steps they wish to take in preparation for the new Hearing.

$140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Spine Injury Cases, ICBC UMP Cases. 52 Comments on $140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.
In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.
The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:
76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:
a.  A Brown-Sequard partial cervical spinal cord injury
b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 – T-1 and avulsion of the C-7 spinous process; and
c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)
77.  At the outset, her right leg was completely paralyzed.  She:
a.  spent 50 days in three different hospitals
b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;
c.  required her neck immobilized in sandbags when in bed;
d.  at all other times wore a Minerva brace for 60 days;
e.  wore an extreme right knee brace for 75 days; and
f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.
As of August, 2006, approximately five months post-accident she:
a.  had received 70 physiotherapy treatments; and
b.  40 occupational therapy treatments.
The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.
78.  The Claimant sustained a number of permanent disabilities as follows:
a.  right leg limp
b.  weakness, fatigue and reduced endurance in the right leg;
c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite
…
87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.

Hospital Insurance Program Payments Non-Deductible Under UMP

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision which dealt with a variety of issues including whether payments received under BC’s Hospital Insurance Program are deductible by ICBC in Underinsured Motorist Claims.
In the 2009 case of APS v. ICBC the Claimant was severely injured in a 2004 collision in Nevada.  She was a BC resident and had UMP Coverage with ICBC.  Following the crash and initial treatment in the US the Claimant was airlifted back to BC and received further hospital treatment.  The cost of these totalled $197,263.  ICBC argued that the cost of these treatments were in the nature of insurance benefits and deductible under Section 148.1(1) of the Insurance (Vehcle) Regulation.   Arbitrator Boskovich disagreed and provided the following helpful reasons rejecting this argument:
130.  The services and benefits covered under out universal compulsory medical coverage, which are incurred in almost every under insured motorist action, cover amounts paid in the past and those to be paid in the future.  Given the catastrophic nature of many of the cases that result in UMP Claims the costs are often considerable.  Had the Legislature intended for UMP awards to be net of these services and benefits then it would have specifically provided for such a deduction in clear and unambiguous terms in the legislation.
131.  Having regard to the nature and extent of the evidence tendered and to the overall statutory intention of Subsection 148.1(1) of the Regulations, I do not find the Hospital Insurance Program payments to be an applicable deductible amount pursuant to paragraph (i).  As stated above, had the Legislature intended such potentially considerable deductions to come into play it would most certainly have specifically stated so.
132.  If I am wrong about the above, I still find having regard to the wording of subsection (i), that such amounts would not be payable to the insured as a benefit or right and claim to indemnity.  They do not represent pecuniary payments of a like nature for which the Claimant is claiming compensation pursuant to the tortious conduct of the underinsured motorist and which would have been recovered thus resulting in double recovery.
This case is also worth reviewing for some of the other finding made with respect to deductible beneifts.  The Claimant’s husband died in the same collision and as a result the Claimant received some modest compensation through a Family Compensation Act action and through varioius insurance benefits.  Arbitrator Boskovich made the following findings with respect to other deductible amounts:
1.  If a Claimant received damages under the Family Compensation Act from the collision in question then those can be deductible in an UMP Claim even if underlying action dealt exclusively with the Claimant’s personal tort claim.
2.  ICBC Part 7 Death Benefits paid from the deceased’s Part 7 benefits to the Claimant are deductible in an UMP Claim.
3.  A CPP Death Benefit paid directly to the claimant is deductible in an UMP claim.
4.  CPP and private survivor’s pension benefits are deductible in an UMP claim with the limitation that these deductions should be calculated on the basis of the natural life expectancy of the claimant.