The debate is over. The Ontario Superior Court of Justice, in Ferreira v. Hopper confirms that any Canada Emergency Response Benefit (CERB) and/or Canada Recovery Benefit (CRB) received by a plaintiff is deductible pursuant to s. 267.8(1)2 of the Insurance Act, R.S.O. 1990, c.I.8.
This section of the Insurance Act sets out a plaintiff’s entitlement for income loss or loss of earning capacity shall be reduced by “all payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.”
The parties agreed that CERB and CRB were intended to be income replacement payments for income loss or loss of earning capacity. However, the Plaintiff argued that these payments were not “in respect of the incident” and therefore not deductible. The Defendants disagreed.
As there were no prior cases on point in Ontario, the Court conducted its own independent analysis of the issue. It was noted that both the CERB and CRB were set up by the Government of Canada to provide financial support to employed and self-employed Canadians directly affected by the COVID-19 pandemic.
To qualify for the CERB, an applicant must have earned a minimum of $5,000 before taxes in the previous twelve months, or in 2019, and satisfy four conditions, one of which included that one’s “hours were reduced due to COVID-19” or that one “stopped working due to COVID-19”.
To qualify for the CRB, an applicant had to demonstrate unemployment for reasons related to COVID-19; a 50% reduction in their average weekly income compared to the previous year due to COVID-19; that they did not apply for or receive other benefits such as EI; that they did not quit their employment or reduce their hours voluntarily on or after September 27, 2020 “unless it was reasonable to do so”; and, that they did not “turn down reasonable work during the two-week period applied for.”
The Court held that in order to qualify and maintain eligibility for CERB / CRB benefits, the Plaintiff must have been otherwise able to work during the period for which the benefits were available. Significantly, at no point during his trial, did the Plaintiff concede that any portion of his absence from work was due to any reason other than his injuries arising from the car accident. The Court found that he could not now reframe his theory of income loss post-verdict to avoid deductions from a damages award. Ultimately, the CERB and CRB payments received by the Plaintiff in 2020 and 2021 were deducted from the jury’s verdict for past income loss damages.
This decision reiterates that while the primary purpose of tort law is to restore a Plaintiff to the position they would have been in but for the negligent act or omission, such compensation cannot be rendered without fair consideration for the rule against double recovery.
See Ferreira v. Hopper, 2024 ONSC 5385
