How will my award for future earning capacity be affected if I am disable from working and currently receiving disability benefits as a result of my injuries?
In the recent Supreme Court of British Columbia case of Shongu v. Jing (2016 BCSC 901), the plaintiff was completely disabled from working as a result of the significant psychological injuries sustained in the crash of July 15, 2012. He began collecting a disability pension from the province of British Columbia. The parties disagreed as to whether the plaintiff’s present entitlement to disability benefits should be taken into account when determining future earning capacity. Obviously, social assistance benefits would be easy to calculate as a deduction from future earnings, the issue was determining whether or not the plaintiff would be entitled to them after the judgment. Judge Sewell considered the rules set out in The Employment and Assistance for Persons with Disability Regulation:
[203] The Employment and Assistance for Persons with Disability Regulation, B.C. Reg. 265/2002, places a limit of $100,000 on the assets that a person with disabilities may own to continue to be eligible for benefits. The Regulation does permit payment of benefits to a disabled person who is the beneficiary of a trust of no more than $200,000. However, The Regulation places significant restrictions on the uses to which the trust funds can be put
This meant his entitlement of benefits would hinge on the amount of damages the plaintiff would receive at trial. Judge Sewell continues:
[204] I have decided that Mr. Shongu is entitled to damages well in excess of $200,000. It would, therefore, appear that once he receives the amounts awarded to him, he will no longer be eligible to receive disability benefits.
[205] I also accept Mr. Shongu’s submission that requiring him to put the award into a trust would be inconsistent with the principles set out in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, to the effect that a plaintiff is entitled to spend the amount awarded to him as damages as he or she sees fit.
[206] Accordingly I find that no further deduction need be made for those payments.
[207] I do, however, consider that the award of damages for loss of future income earning capacity should be reduced to take into account the amount of benefits Mr. Shongu will receive as a person with disabilities between the trial date and the date he receives the proceeds of this judgment. If counsel cannot agree on the amount of such payments, they may make application to me.
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