Tomanik v. Brunet, 2024 BCSC 1669
Reading Time: 5 minutes (approx.)
By: Sarah Richard (Articled Clerk)
This case involves a judgment related to a motor vehicle accident which occurred on May 30, 2018, in which Malgorzata Tomanik (“Plaintiff”) was awarded $1,239,506.67 in damages, covering non-pecuniary damages, wage loss, future earning capacity, future care costs and special damages. The issue involves the potential deductions under section 83 of the Insurance (Vehicle) Act, which was amended in 2018 to require deductions for benefits received by the plaintiff for accidents occurring after May 17, 2018.
The Defendant, Youri Brunet, sought to deduct the present value of the Plaintiff’s long-term disability benefits and Canada Pension Plan disability benefits, which were quantified by the plaintiff’s economist at $316,436. The Plaintiff raised 2 issues with these deductions: evidentiary concerns and the uncertainty of future benefits. The Plaintiff claimed the Defendant did not provide direct evidence regarding the plaintiff’s eligibility, the duration of the benefits, and their value. In addition, the Plaintiff contended that case law requires the court to consider any uncertainty related to the payment of future benefits when determining the appropriate amount for the section 83 deduction – if there is uncertainty, the Plaintiff could be shortchanged if benefits that are never received are deducted.
Regarding the first issue, the court determined that the Defendant satisfied the evidentiary burden by demonstrating that the Plaintiff received both benefits. The quantification by the Plaintiff’s economist also satisfied the evidentiary requirements. The burden then shifted to the Plaintiff to contest this evidence, which she failed to do. The court also discussed the obligations of plaintiffs to disclose the amounts of benefits received under subsection 83(5). This subsection states that after damages are assessed, the plaintiff must disclose the amount of benefits received to the court.
Regarding the second issue, the court examined recent amendments to the Act, specifically to subsection 83(5.1), which states that when estimating undetermined benefits the court cannot consider the likelihood of those benefits being paid or provided. This change indicates that for accidents which occur after May 17, 2018, the court is prohibited from making deductions based on uncertainties surrounding future benefit payments.
The Plaintiff relied on earlier cases to argue that the court should still apply general principles concerning deductions for uncertainty; however, the Defendant argued that these cases were based on the law prior to the 2018 amendments and did not invovle the new subsection 83(5.1).
The court concluded that the intent of the new provision was to simplify the deductions process and eliminate considerations of uncertainty. As a result, the court determined that it could not make deductions for uncertain future benefits, confirming a deduction of $316,436.
Overall, the ruling clarifies the application of the 2018 amendment to section and sets important precedents for how future benefits are to be treated in similar cases.
