Sutherland v. Singh,  O.J. No. 2901 (C.A.)
The plaintiff was eligible for income replacement benefits (IRBs) and caregiver benefits (CGBs). He elected to receive CGBs. Under s. 267.8(1) of the Insurance Act, damages are reduced by payments for statutory accident benefits that the plaintiff received or that were “available”. The issue on appeal was whether IRBs were “available” to the plaintiff (thus allowing the tort defendant to deduct them) even though he elected to receive CGBs. The Court of Appeal held that the answer is “no”.
Justice Gillese held that once the plaintiff elected to receive CGBs, IRBs were no longer available to him. The purpose of s. 267.8 is to prevent double recovery. The effect of allowing the defendants to deduct CGBs that the plaintiff received as well as IRBs that he never received would be to create a windfall for the defendant.