ICBC Request for Homemaking Benefit Deduction From Jury Award Denied

In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims.  In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.

In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision.  She was rendered totally disabled as a result.  At trial a jury found the Defendant 80% at fault for the crash.   Damages were assessed including substantial damages for future care.  The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available.  Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met.  In dismissing this portion of the application the Court provided the following reasons:

[35]         The defendant asserts that $133,081 should be deducted from the jury award in respect of homemaking benefits.  This amount is the present value of $145 per week until Ms. Canning turns 65.

[36]         Homemaking benefits are not one of the enumerated benefits set out in s. 88(1) of the Regulation.  This type of benefit is addressed in s. 88(2).  That section requires that a medical advisor provide an opinion that the benefit promote the rehabilitation of the insured.

[37]         Ms. Canning is permanently disabled.  The amount of the jury’s award in respect of homemaking is to assist her with the basic activities of daily living.  Her condition is permanent and seemingly irreversible.  The future care award is to maintain Ms. Canning in her current condition, not to rehabilitate her or improve her level of self-sufficiency.  This conclusion is similar to the outcome in Uhrovic v. Masjhuri, 2007 BCSC 1096.

[38]         In my view, any amount awarded by the jury in respect of homemaking is not deductible from their award, because it does not comply with the requirement in s. 88(2) that the expense promote the rehabilitation of the insured.

Canning v. Mann, Diminished Homemaking Capacity, Homemaking Benefits, Mr. Justice Basran

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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