[31] In her final decision, the trial judge did not allow an assignment of the future medication benefits and future professional services benefits. She noted that the parties had not adopted the language that she had proposed for the jury verdict sheet. Accordingly, the verdict sheet did not require the jury to specify awards for future care costs under the sub-headings that she had proposed, such as separate headings for each of physiotherapy, psychology, etc., instead of a single one for “Future Professional Services”, and separate headings for medications and for assistive devices instead of a single one for “Future Medication & Assistive Devices”. At paras. 5 and 6 of her reasons, she concluded:
[5] As a result of the jury’s global awards of $424,550 for Future Professional Services, and $82,429 for Future Medication and Assistive Devices, the Defendants are now unable to meet their onus to demonstrate that the jury award compensated the Plaintiff for the same loss in respect of which the Defendants now claim an assignment of benefits.
[6] The case law concerning the trust and assignment provisions of the Insurance Act requires me to ensure the prevention of double recovery by a plaintiff. This requirement must be balanced against a plaintiff’s entitlement to receive full compensation; that is, by not being subjected unfairly to deductions based on uncertainty and speculation. I adopt the reasoning of Leach, J. in Gilbert v. South, 2014 ONSC 3485, 120 O.R. (3d) 703, at para. 9 where she found herself similarly bound by the very strict onus of proof applied to defendants in these cases:
However, concern to ensure mandated prevention of such double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he or she is entitled; i.e., by being subjected unfairly to deductions based on collateral benefit entitlements that are in doubt and/or which may not truly overlap with sums recovered in a tort judgment. Statutory provisions of this nature therefore are strictly interpreted and applied. In particular: deductions from a plaintiff’s damage award to prevent double recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, andthat the plaintiff received compensation for the same benefits in the tort judgment, (as “apples should be deducted from apples, and oranges from oranges”). Evidence of “likelihood” and “probability” in that regard is not enough to warrant a deduction. Rather, a “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established. If there is uncertainty as to a plaintiff’s receipt of such benefits, the value of the benefits entitlement, and/or the extent (if any) to which recovered tort damages relate to the same type of expense covered by the benefits received, matters are not “beyond dispute” in the sense required for a deduction, and no deduction should be made. See Chrappa v. Ohm (1998), 38 O.R. (3d) 651 (C.A.), at p.657; Bannon v. Hagerman Estate (1998), 38 O.R. (3d) 659 (C.A.), at p.679; Cowles v. Balac, [2005] O.J. No. 229 (S.C.J.), at paragraph 205, affirmed [2006] O.J. No. 4177 (C.A.); Moore v. Cote, [2008] O.J. No. 3541 (S.C.J.), at paragraph 9; and Hoang v. Vicentini, supra, at paragraphs 27-28, 36 and 45. [Emphasis in original.]