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CADIEUX V CLOUTIER: TRANSFERRABLE COSTS: YOUR SAB COSTS CAN BE RECOVERED VIA YOUR TORT CLAIM

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If you are unfortunate enough to be injured in a car accident, you may find yourself fighting for Statutory Accident Benefits (SABs) while you are also pursuing tort litigation. If this is the case, it is important to know that any SABs you receive from your insurer can be deducted from your tort award. For example, this means that any income replacement benefits you receive can be deducted from the loss of income portion of your tort award. While this may seem frustrating, the courts wish to ensure that plaintiffs are not being compensated twice for the same loss.

What does Cadieux say about legal fees? In 2018, the Ontario Court of Appeal released the decision, Cadieux v Cloutier. Part of this decision discussed how your SAB legal fees, disbursements and HST could be transferred to and become payable via your Tort claim. ‘Cadieux’ has determined that the legal fees which were incurred in the SAB setting “may, in some cases” be recoverable upon the resolution of your Tort claim. To obtain this recovery, the onus is on the plaintiff in each case to demonstrate that, if the Tort insurer is entitled to a credit for the SAB Benefits received by the Plaintiff, the Plaintiff is also entitled to be paid the legal fees required to obtain them. The underlying rationale is that, if the Tort carrier is entitled to a credit for these benefits, the Tort carrier should pay the SAB costs to secure them. In making this decision, ‘Cadieux’ requires that the Trial judge should fully consider the context and circumstances of each decision. There are important factors which must be focused upon by the Trial Judge or Assessment Officer to determine whether these SAB fees are recoverable in the tort action. The three major considerations? The risk taken in pursuing a SAB claim, whether any extraordinary labour-intensive steps were taken to pursue and obtain these SABs, and the overall proportionality between the legal costs incurred on the SAB side compared to the benefit of the SAB reduction to the defendant. What can this mean for me? If you have undergone a legal battle to obtain SABs, you may be entitled to have your SAB legal costs recovered in whole or in part from a defendant tortfeasor. It is crucial that your counsel demonstrate how the work that went into your SAB claim has benefitted the tortfeasor through the SAB deductions. This can help you to keep more of the tax-free damages awarded to you after you win your personal injury case. SAB and Tort Claims in Barrie If you have SAB and tort claims, you want counsel who can help you keep all the damages to which you are entitled. Contact Littlejohn Barristers at 705-725-7355. Last year, we won the Barrie Advance’s Readers Choice Award for this community. We would love to hear from you.

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