In Moss v. Hutchinson & Associates, Mr. Justice Peter Howden has ruled that benefits received by a plaintiff from the Ontario Disability Support Program (“ODSP”) are not deductible from an award of tort damages. The action arose out of a motor vehicle accident that occurred on September 19, 2000 and so, fell under the Bill 59 regime of the Insurance Act. Liability was admitted but the defendant took the position that ODSP income support benefits totalling $69,872.31 should be deducted from any tort damages for income loss or loss of competitive advantage.
Justice Howden held that because it was a condition precedent of receiving these benefits, that the claimant agree to reimburse ODSP out of any tort damages received, this type of benefit is unlike others (such as CPP) which have been held to be deductible. The repayment requirement is, in itself, a protection against double recovery. As a result, His Honour ruled that the ODSP beneifts were not deductible under s. 267.8(1) of the Insurance Act.