Judge in Injury Lawsuit rules that Plaintiff’s Disability Benefits are not relevant to their Motivation to Work

If you were injured and are unable to work as a result of a motor vehicle accident, you may be eligible to claim several types of compensation, including long-term disability (LTD) benefits under your disability plan, statutory accident benefits (SABs) from your automobile insurer, and personal injury damages from the at fault driver.

To qualify for any of these types of compensation, you must meet the requisite eligibility requirements. Also, you cannot seek reimbursement for the same benefit or loss from two different sources – for example, if you are already receiving income replacement benefits from your disability insurer, you cannot claim full loss of income compensation for the same period in a personal injury lawsuit.

One question that sometimes arises in cases involving several types of compensation, is whether you might be disadvantaged or precluded from one type of compensation (such as personal injury damages), if you are receiving disability benefits or statutory accident benefits, arising from the same accident. The short answer is ‘no’ – one form of compensation does not disadvantage you when making another claim, as long as you’re not seeking the same benefit. Medical evidence of your injury is relevant in all three claims – disability, no fault accident and tort action – and occasionally, multiple claims associated with the same cause of injury are actually tried together.

The defendants in personal injury lawsuits sometimes argue that, because the plaintiff is already receiving disability benefits or ‘no fault’ accident benefits associated with their injury, they are highly motivated to not return to work and therefore, the future losses they are claiming are suspect and not believable. This is what occurred in Ismail v. Fleming (2018), a personal injury lawsuit involving a woman who was injured in a car accident and as a result, suffered serious and permanent injuries including chronic pain, discomfort and limitations in her movements. The plaintiff alleged that her injuries caused her to suffer lost income (past and future) as well as a loss of competitive advantage.

At the time of the personal injury trial in Ismail, the plaintiff was receiving several collateral benefits including: LTD benefits from her work disability plan, disability benefits from CPP (the Canada Pension Plan) and income replacement benefits from her automobile insurer. Since the date of the accident, she had already received almost $270,000 in before-tax collateral benefits. The plaintiff was not seeking damages for past lost income, but she was claiming future income loss for the amount not covered by continuing collateral benefits.

In addition to challenging the amount of income loss the plaintiff claims to have suffered, the defendants in this case asserted that the plaintiff didn’t return to work when she was reasonably well enough to work and also failed to mitigate her losses. The plaintiff’s counsel objected to the defendant’s allegation that the collateral benefits the plaintiff was receiving discouraged her from working. Specifically, the plaintiff’s counsel objected to “any suggestion, submission, argument or other reference at trial to the effect that the receipt of collateral benefits is relevant to her motivation to work”.

Justice Leach agreed with the plaintiff, suspended the objection and ruled that the defendants cannot challenge the plaintiff’s credibility regarding her assertion of disability on the grounds that she is receiving collateral benefits.

Justice Leach found that the reasoning in Kitchenham v. AXA Insurance applies in this case, and a claimant’s receipt of collateral benefits should be treated as irrelevant when evaluating whether the claimant is motivated to work and truly disabled. Further, the judge pointed out that insurance schemes supported by Ontario law provide no fault accident benefits to accident victims and there is an assumption that these benefits will be offset against personal injury tort claims in some cases.
As a result of existing insurance provisions, many personal injury claimants in Ontario receive collateral benefits, and Justice Leach asserted that it would be unfair and ironic to argue that persons receiving these benefits on the basis of their disability are, in fact, able to work. Further, if we give credence to a defendant’s argument that plaintiffs who are receiving collateral benefits lack the motivation to work, then persons who are legitimately disabled due to a car accident would be discouraged and refrain from pursuing benefits to which they are properly entitled, on the chance that they might not be able to claim future income loss in a tort action.


We understand that being denied disability benefits can be frustrating and devastating. Your time to fight your disability insurance company is limited. Please do not delay in calling long term disability lawyer. We have successfully sued numerous disability insurance companies including: Manulife, Sunlife, Desjardins, Great West Life, Blue Cross, AIG, SSQ, RBC, Industrial Alliance and more.

Call your trusted long term disability lawyers at 1-888-GOKOTAK (Toll Free for all of Canada), or (416) 816-1500 (Local Number for Ontario Residents), (403) 319-0071, (587) 414-1010 (Local Numbers for Alberta Residents). Our consultation is free and we don’t get paid until you do. We can meet you at our offices, at a coffee shop, your home or a local court house. We represent disabled people throughout Ontario and Alberta, including Toronto, Mississauga, Brampton, Milton, Georgetown, Orangeville, Oakville, Burlington, Hamilton, St.Catharines, Niagara Falls, Stoney Creek, Kitchener/Waterloo, Cambridge, London, Windsor, Markham, Pickering, Oshawa, Peterborough, Keswick, Kingston, Ottawa, Banff, Brooks, Calgary, Edmonton, Fort McMurray, Grande Prairie, Jasper, Lake Louise, Lethbridge, Medicine Hat, Red Deer, Saint Albert and other locations.

Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.