Motion to Restrict Defendant’s Ability to Allege Plaintiff’s Motivation to Not Work - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

January 14, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Motion to Restrict Defendant’s Ability to Allege Plaintiff’s Motivation to Not Work - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

Date of Decision: October 22, 2018
Heard Before: Justice I.F. Leach

This case arises from a 2009 car accident that is currently subject of a civil jury trial. The car accident occurred when the defendants’ vehicle made a left turn across the path of the plaintiff’s vehicle.  The two vehicles collided “in a T-bone fashion”, with the front of the plaintiff’s vehicle colliding with the side of the defendants’ vehicle.

This is one of several pretrial motions, this one dealing specifically in relation to the plaintiff’s objection to “any suggestion, submission, argument or other reference at trial to the effect that the receipt of collateral benefits is relevant to her motivation to work”, I made the following ruling, for reasons to follow:

 “The objection is sustained.”

Further background

The plaintiff claims that because of the car accident, she sustained injuries resulting in serious and permanent impairments of important physical, mental and psychological functions.  She claims as a result that they:

  • have caused her to experience severe pain, discomfort, limitation in movement “and concurrent disability”;
  • have rendered her incapable of vocational activities that she participated in prior to the accident; and
  • have caused her to suffer a loss of past and future income, as well as a loss of competitive position in the marketplace, such that she will experience a diminution of income.

Following the car accident the plaintiff has received collateral benefits in various forms and amounts, including: long term disability benefits from Great West Life; total disability benefits from the Canada Pension Plan; employment insurance (“EI”); and income replacement benefits from her own automobile insurer, Aviva Insurance.  The evidence filed by plaintiff counsel, in relation to the preliminary motions and objections, indicates that the total of such collateral benefits received by the plaintiff, since February of 2010, comes to $266,874.00 prior to any deduction for income tax.

The statement of defence filed by the defendants includes:

  • a specific denial that the plaintiff has suffered the income loss alleged by the plaintiff;
  • a specific assertion that the plaintiff has failed to return to work when reasonably fit to do so and otherwise failed to mitigate her damages in that regard;
  • a general assertion that the plaintiff has failed to mitigate her damages; and
  • an “entitlement to the benefits of all insurance monies, wage and salary continuation plans and government benefits to which the plaintiff may be entitled whether or not claim for such entitlement has been made”.

The plaintiff does not dispute that her tort claims against the plaintiff are offset, to some extent, by her receipt of collateral benefits. 

Anticipating that the defendants might seek to argue that the plaintiff actually is not disabled from working but chooses not to pursue active employment because she finds the receipt of collateral benefits without working a more attractive option, plaintiff counsel sought to address that possibility at the outset of trial. In particular plaintiff counsel formally objected to “any suggestion, submission, argument or other reference at trial to the effect that the receipt of collateral benefits is relevant to her motivation to work”.

Plaintiff counsel relied primarily on first instance and appellate decisions rendered in the case of Kitchenham v. AXA Insurance, which were said to have confirmed that a claimant’s receipt of collateral benefits should be regarded as irrelevant to assessment of the claimant’s motivation to work and corresponding determination of whether the claimant is actually disabled. It was emphasized by plaintiff counsel that all levels of court dealing with the Kitchenham v. AXA Insurance case had regarded such considerations as lacking even a “semblance of relevance” to such matters.  In other words, such considerations had no relevance to such matters even when relevance was assessed on the “generous” and “wide latitude” standard described in authorities such as Kay v. Posluns, and accepted by our Court of Appeal. Plaintiff counsel argued that it should be impermissible for the defendants to make any such irrelevant suggestions or arguments, directly or indirectly, during the course of this trial.

Defence counsel did not disclaim any intention to pursue such suggestions or arguments rather they argued that such considerations and arguments were relevant and proper. The evidence of personal injury claimants receiving collateral benefits is routinely and properly led before juries and juries routinely are provided with instructions in that regard.

It was emphasized that our Court of Appeal, in cases such as McLean v. Knox, has recognized that there may be important issues of credibility and motivation to work in relation to plaintiffs alleging serious injuries and future income loss as the result of a motor vehicle accident. They argued that the various decisions in Kitchenham v. AXA Insurance were distinguishable, and of no application to the present case. 


There is a paucity of authority dealing with this particular issue one way or the other, given the frequency with which the circumstances triggering such concerns seem likely to arise.  In particular:

•        Given that the SABs outlines any plaintiff advancing a personal injury claim stemming from a motor vehicle accident invariably will assert that the accident resulted in the plaintiff sustaining injuries constituting a serious and permanent impairment of an important physical, mental or psychological function.  Allegations of disability are therefore inherent in all such claims. In such cases, there frequently will be a claim that such disabilities have resulted in a past or future loss of income. In such cases, claimants also frequently will have received a measure of collateral benefits, (including income replacement benefits), if only pursuant to the Statutory Accident Benefits Schedule.

Tortfeasors therefore frequently may be inclined to argue that a plaintiff actually is not disabled from returning to work and earning income, but chooses not to do so because his or her receipt of collateral benefits undermines his or her motivation to work.

Counsel were unable to provide any decisions speaking to whether or not the relevant aspects of the Court of Appeal’s decision in Kitchenham v. AXA Insurance had been applied in the tort context.          Nor were counsel able to provide any decisions rendered by trial judges, since release of the Court of Appeal’s decision in Kitchenham v. AXA Insurance, speaking to whether or not receipt of collateral benefits should still be regarded, in the context of tort actions for personal injury resulting from motor vehicle accidents, as a relevant consideration vis-à-vis a plaintiff’s motivation to work and corresponding determinations of disability underlying claims of income loss.[7]

The analysis included that there was an intuitive logic to the defendants’ contemplated line of questioning and argument, and their corresponding assertions of relevance. In particular to those voiced by in Murdoch v. Boudot, supra, at paragraph 19.  Speaking of collateral benefits, Justice Taylor said this:

There can be no doubt that a person in receipt of such benefits is to that extent freed of the financial incentive to seek employment, which would be felt by a person reliant on earned income for his or her support.  The right to keep such benefits and still sue for full wages may, indeed, be a disincentive to return to work, where the recipient is better off financially when not at work than when working.  In this sense, the fact that a plaintiff receives disability benefits may not be wholly irrelevant where, as here, failure to mitigate is alleged.

A like sentiment was expressed in Halbot v. Little, supra, at paragraph 20.  In particular, speaking of the claimant in that case, and the merits of her claim for income loss because of alleged disability, Justice Coo said this:

It must be remembered that, with regard to motivation to return to work, she is receiving from the disability insurer a significant sum, which would take her some time to earn through her employment.

Having regard to such reasoning, its perceived relevance to the defendants’ assertion that the plaintiff actually is not disabled but really choosing not to work and failing to mitigate her damages, and the normal ability of defendants to rely on relevant evidence and arguments when defending claims, the initial inclinations was to dismiss the plaintiff’s objection. However, closer examination and consideration of the various decisions rendered in the Kitchenham v. AXA Insurance case indicated why such reasoning and assertions of relevance, despite their intuitive appeal, should be viewed as fallacious and based on improper speculation.

In the Kitchenham v. AXA Insurance litigation, the plaintiff had been involved in a motor vehicle accident.  She pursued a claim for disability benefits from her own insurer, as well as a tort claim against the other driver.   There was a settlement of the plaintiff’s tort claim.  However, litigation of the plaintiff’s separate claim for disability benefits from her own insurer continued and proceeded to oral discovery examinations.  During those examinations, the defendant insurer sought disclosure of the amounts which the plaintiff had recovered in the tort action, and the plaintiff refused.

The plaintiff’s refusal to produce such information on the grounds of relevance formed one of many issues that then came before Justice Heeney, as the result of a motion brought by the defendant insurer.  In disposing of that aspect of the motion, Justice Heeney said this:

The third item of disclosure relates to documentation surrounding the settlement arrived at by the plaintiff with the tort defendant.  The primary issue is relevance.  …

The best that [the defendant insurer] could do was to suggest that the quantum of the settlement might affect the plaintiff’s motivation to return to work.  However, the issue to be determined at trial is whether or not the plaintiff is disabled from working, not whether the plaintiff has a financial incentive to work.  A wealthy person might have no incentive to work at all yet would still be entitled to loss of income benefits if he were disabled from doing so.

On the basis of the evidence, the precedent and the law, Justice Leitch determined that documents relating to the settlement of the tort claim have no relevance to the present proceedings, and the motion for disclosure of that evidence is dismissed.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Income Replacement Benefits, Personal Injury

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