April 19, 2010 by Canadian Underwriter
As long as a trial judge has not directed a jury to deduct income replacement benefits (IRBs) from their jury award, the trial judge may deduct IRBs from the jury award without fear of “double deduction,” the Ontario’s Court of Appeal has ruled.
In Karamzadeh v. Pierre, Heydar Karamzadeh was found by the Ontario Superior Court of Justice to have sustained a “minor soft tissue injury to the neck area,” and was awarded $15,000 in general damages and $17,500 for past lost income.
While the lower court’s jury deliberated, the trial judge found that Karamzadeh’s injuries did not constitute a permanent and serious impairment of an important physical, mental or psychological function. As a result, a statutory deduction of $15,000 applied, and he was not able to recover the general damages.
Furthermore, the trial judge applied a 20% reduction to the past income award and deducted income replacement benefits received by Karamzadeh, reducing the $17,500 for past lost income to nil.
Karamzadeh appealed, arguing that both counsel for the plaintiff and the defence mentioned to the jury — and also the trial judge — in their closing arguments that IRBs ought to be subtracted from any award for past income loss. This was the equivalent of instructing the jury to deduct the IRBs, Karamzadeh argued.
But, the Court of Appeal found that Karamzadeh failed to properly characterize what the trial judge said in his charge.
“The trial judge did make reference to counsel’s submissions, but counsel for the plaintiff now acknowledges that the trial judge did not specifically direct the jury to make a deduction for IRBs that had been paid to the plaintiff; nor did he provide to the jury any formula to calculate past income loss,” the panel wrote.
“We see no error made by [the trial judge] in deducting the IRB payments received by the plaintiff from the gross amount awarded by the jury. Accordingly, this ground of appeal must fail.”