Focus On

ACTIONS - Practice and procedure

Monday, June 10, 2019 @ 9:36 AM  


Lexis Advance® Quicklaw®
Appeal by Kontuk from the decision setting out the amount of his settlement which was to be reimbursed to the Nova Scotia Public Service Long Term Disability Plan Trust Fund (the respondent). Cross-appeal by the respondent. Kontuk was injured in a motor vehicle accident in July 2005 in Ontario. In December 2005, he moved to Nova Scotia and subsequently began working for the Nova Scotia Department of Highways. As a result of his employment, Kontuk was insured under the Nova Scotia Public Service Long Term Disability Plan (LTD Plan). Kontuk went off work in January 2010 and commenced receiving disability benefits under the LTD Plan in January 2011. In May 2013, Kontuk settled a personal injury claim arising from the 2005 motor vehicle accident. In September 2016, the respondent brought an application in chambers, seeking a declaration setting out the amount of Kontuk’s settlement to be reimbursed to it in light of past benefits paid and, further, what amount ought to be offset from his ongoing LTD benefits. The application judge concluded that Kontuk was to reimburse the respondent a sum reflective of past wage loss and that his ongoing LTD benefits should be decreased to reflect his receipt of monies for future wage loss from the tortfeasor. Kontuk took the position that the Ontario Insurance Act precluded the respondent from seeking any portion of the settlement, either by subrogation or offset. The respondent took the position that there was no evidence on which the application judge could have found or inferred that the income claims were of questionable merit. As such, the respondent argued that the application judge ought to have treated all heads of damages as being equally meritorious. Instead, he improperly reduced the portion of the settlement attributable to income loss.

HELD: Appeal dismissed. Cross-appeal dismissed. The application judge was correct when he interpreted s. 267.8(17) of the Ontario Insurance Act as only preventing a third party from taking a subrogated claim against the tortfeasor. The respondent sought to exercise its contractual right to seek repayment of benefits paid to Kontuk. Section 267.8(17) had no bearing on the respondent’s ability to exercise its contractual remedies against Kontuk in Nova Scotia. With respect to the cross-appeal, there was evidence upon which the application judge could have reasonably concluded that Kontuk’s lost income demand was the weakest component of his claim. There was no error, palpable or otherwise, in the application judge’s conclusion.

Nova Scotia Public Service Long Term Disability Plan Trust Fund v. Kontuk, [2019] N.S.J. No. 180, Nova Scotia Court of Appeal, D.R. Beveridge, C.A. Bourgeois and A.S. Derrick JJ.A., May 2, 2019. Digest No. TLD-June102019001