Section B Weekly Indemnity Benefits

First, the no fault benefits under the Section B part of the Standard Owner’s Policy for New Brunswick (N.B.P.F. No 1) are mandated legislatively. They stem from s. 264 of the Insurance Act, supra, which states:

264   Every contract evidenced by a motor vehicle liability policy provides

(a) insurance described in section 256 against expenses for medical, surgical, dental, ambulance, hospital, professional nursing or funeral services, and

(b) accident insurance benefits described in section 257 in respect of death of or injury to an insured person,

as set forth in Subsections 1 and 2 of Section B, Accident Benefits, of the New Brunswick Standard Automobile Policy approved by the Superintendent under section 226.

Pursuant to the standard policy, the amount payable takes into account “any payments for loss of income from employment received by or available … under … the laws of any jurisdiction” or “wage or salary continuation plans available … by reason of … employment”. Workers’ compensation regimes are expressly excluded from the provision.

Because of its legislative origin, it was held, in Vautour v. LeBlanc (1987), 81 NBR (2d) 158 para 7 (QB), that “the insurer cannot be held responsible for the manner in which the exclusion is expressed and … the ‘contra proferentem’ rule cannot be used to interpret any ambiguities involving the said provisions in favor of the insured”. The New Brunswick Court of Appeal disagreed with that view in Courtney v. Royal and SunAlliance Insurance, 2001 NBCA 53 para 24, although the contra proferentem rule made no difference in the end (paras 37 & 42). The New Brunswick Court of Appeal later held that “whenever the wording of an insuring provision, whether legislative or contractual, is open to more than a single reasonable interpretation, courts should opt for the one that benefits the insured”: Axa Insurance Co. v. Rolfe, 2004 NBCA 14 para 25. In any event, whether the contra proferentem rule applies or not, when dealing with the “restrictive or exclusionary clause” of Section B benefits, it is still interpreted narrowly: Vautour v. LeBlanc, supra para 8; Sweet v. Co-Operative Fire and Casualty Co. (1983), 46 NBR (2d) 189 para 9 (CA). See also Berardinelli v. Ontario Housing Corp., [1979] 1 SCR 275 p 280; Ryan v. Victoria (City), [1999] 1 SCR 201 para 38.

Several cases had to address the exclusion contained in the Section B part of the N.B.P.F. No 1. For example, the matter of Sweet v. Co-Operative, supra, concerned disability benefits paid to an employee through his union. Other than collecting union dues, from which the insurance plan was purchased, the employer played no role in the administration of the plan or the benefits paid. Thus, the benefits resulted from membership in the union, not employment. The unanimous bench of the Court of Appeal held the benefits as non deductible against Section B weekly indemnity benefits.

The case of Courtney, supra, dealt with sick leave benefits paid to an employee injured in a motor vehicle accident. Again, the issue centered on the wording of “payments for loss of income … under … wage or salary continuation plans”. The sick leave benefits were provided for under a collective agreement. Credits accrued with time and a portion of unused credits was payable to the employee upon retirement. Interestingly, the bench looked at s. 265.4(1) of the Insurance Act, supra, and the distinction drawn between paragraph (a) dealing with ‘income continuation plans’ and paragraph (b) speaking of ‘sick leave plans’. The two were held to be distinguishable. Thus, as the N.B.P.F. No 1 only spoke of ‘wage or salary continuation plans’, it was said to exclude sick leave benefits (para 41).

In Vautour v. LeBlanc, supra, an allowance paid to a worker compelled to retire after sustaining an injury in a motor vehicle accident was held not to be ‘a payment for loss of income from employment’. The retirement allowance was paid pursuant to a collective agreement and was payable under various scenarios, including some not related to a withdrawal from the workforce.

One of the questions raised in relation to Section B weekly indemnity benefits and offsets was against which amount should the deduction be applied, i.e. the 80% of the gross weekly earning or the benefits payable. In Landry v. Commercial Union Assurance of Canada (1984), 57 NBR (2d) 181 (QB), the court addressed this issue. It held that the income continuation benefits were deductible from the weekly benefits payable (para 19). However, it also pointed out (para 23) that an amendment to the provision effective January 1, 1984, resolved the issue. A majority of the New Brunswick Court of Appeal upheld the decision: (1985), 63 NBR (2d) 331.

Since Section B weekly indemnity benefits release the tortfeasor of a corresponding amount under both s. 263(2) and 265.4(1) of the Insurance Act, supra, it means that any money received from the wrongdoer by way of settlement for loss of income is not deductible from the no-fault benefits: Basque v. Halifax Insurance Co, 2002 NBQB 8.

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