As we have reported previously, anyone injured in a motor vehicle accident in Ontario is eligible for accident benefits under the Statutory Accident Benefits Schedule (SABS). A range of benefits are available, including income replacement and medical benefits. Insurance companies pay statutory accident benefits under auto insurance policies.

However, you may be entitled to more generous compensation in a direct claim against the negligent driver that has caused your accident injury. This article looks at whether you can claim accident benefits under the SABS and sue the driver, along with some of the implications.

What do accident benefits under the SABS cover?

The SABS can help those injured in motor vehicle accidents deal with the physical and financial consequences of being hurt in an accident. Insurance companies must pay these accident benefits regardless of who is at fault for causing the motor vehicle accident.

A range of specific types of statutory accident benefits is listed in the SABS. The amounts payable depend on various circumstances, such as the severity of the injury sustained and the exact type of insurance policy purchased. 

Benefits payable under the SABS may include medical, rehabilitation and attendant care benefits.  Income replacement benefits may be available for those unable to perform their employment. Alternatively, you may be entitled to the caregiver benefit if you were an unpaid primary caregiver before the accident. Otherwise, if you are completely unable to carry on a normal life as a result of the accident, you may be eligible to receive a non-earner benefit.

Are you entitled to claim under the SABS and also sue the negligent driver?

Nonetheless, you may be able to obtain the compensation that more accurately reflects the losses you have suffered after being injured in an accident if you proceed to claim directly against the person that has negligently caused your loss. 

The regulation capped by SABS benefits may only help you recover from the accident to an extent. For example, the income replacement benefit is capped at 70% of gross weekly income, up to $400 per week for the first 104 weeks of the disability.

This has certain implications if you succeed in a claim for damages against the negligent driver. For example, damages may be reduced by the number of statutory accident benefits received in order to avoid double recovery.

Damages may be reduced to account for SABS benefits received 

Under the Insurance Act, in an action against the negligent driver, the damages that a plaintiff is entitled to:

  • for income loss and loss of earning capacity are reduced by all payments received or available before the trial for statutory accident benefits in respect of the income loss and loss of earning capacity;
  • for expenses that have been (or will be) incurred for health care are reduced by all payments received or available before the trial for statutory accident benefits in respect of the health care expenses; and
  • for other pecuniary loss are reduced by all payments received or available before the trial for statutory accident benefits in respect of pecuniary loss (other than income loss, loss of earning capacity and health care expenses).

However, when it comes to non-pecuniary loss, which refers to unquantifiable types of loss such as pain and suffering or loss of enjoyment, the rule in the Insurance Act is different. It provides that the non-pecuniary damages obtained in court proceedings are not to be reduced by any payments or benefits the plaintiff has received or is entitled to.

Plaintiff hit by bus received non-earner SABS benefit and damages for loss of income

The recent Ontario Superior Court of Justice case of Kolapully v TTC et al. is an example of a dispute as to whether SABS benefits should be deducted from court-awarded damages following a motor vehicle accident.

In 2012, a woman was struck by a Toronto Transit Commission (TTC) bus. She received almost $100,000 in non-earner benefits under the SABS and was then awarded $150,000 by a court for past loss of income. 

The TTC argued that the non-earner benefits payments needed to be deducted from the damages for loss of income. In contrast, the plaintiff claimed that non-earner benefits were not statutory accident benefits in respect of income loss and, therefore, should not be deducted.

Court decided loss of income damages were not to be reduced by non-earner benefit payments

Justice Sugunasiri decided that it was appropriate to apply the earlier Court of Appeal decision in Walker v Ritchie. That Court said:

“Apart from s 12(4) [of the SABS], which prevents a person from receiving both [non-earner benefits] and payments for loss of income, payment of [non-earner benefits] is not linked to income loss payments. [Non-earner benefits] are not predicated upon, or complementary to, the provisions made for those in receipt of benefits for loss of income. If [non-earner benefits] are akin to any head of damages, it is non-pecuniary or general damages and s. 267.8(7) [of the Insurance Act] specifically prohibits reducing damages for non-pecuniary loss because of benefits received.”

As a result, due to the difference in function between non-earner benefits and income loss damages, her Honour refused to deduct the plaintiff’s non-earner benefit payments from her award of damages for past income loss.

Contact the Personal Injury Lawyers at Tierney Stauffer LLP for Advice on your Motor Vehicle Accident Claim

The different options for securing benefits and damages to compensate you for your injuries and losses after a motor vehicle accident can be confusing. The personal injury lawyers at Tierney Stauffer LLP will give you the advice you need to obtain all that you are entitled to following your injury, so you can recover financially and move forward. Please reach out to us by telephone at 1-888-799-8057 or contact us online to set up a free consultation.


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