Bad reasoning, I think, unless the defendant paid statutorily mandated
premiums for the (I assume) statutorily provided insurance benefits paid to the
plaintiff.
The availability of a collateral source to pay actual damages is not the
same as a failure to mitigate actual damages. The proper result, from the
viewpoint of justice and efficiency, is to have the defendant be fully liable
with no set off for collateral sources, but to allow/require the collateral
sources (here ONWHP) to use subrogation to recoup the funds they paid the
plaintiff from the damages payable to the plaintiff by the defendant. Did
ONWHP not provide for such?
Dear Colleagues:
Some of you might be interested in the
Ontario Court of Appeal's ruling in
Hamilton v Osborne (
http://www.ontariocourts.on.ca/decisions/2009/september/2009ONCA0684.htm)
that insurance proceeds from statutorily mandated insurance schemes reduce a
wrongdoers liability (contrary to the general rule). Relying on list-member
Andrew Tettenborn the court states:
[43] The rationale for this exception [from Bradburn v.
Great Western Railway Co (1874) LR 1 Ex 10] is that people should not
lightly be deprived of the proceeds of their own thrift and foresight;
therefore premiums paid for insurance should not be used to reduce a
tortfeasor’s liability: Tetterborn, at para. 5.26. See also Ratych at
para. 7 [Ratych v. Bloomer, [1990] 1 SCR 940]. But this rationale
is only applicable where insurance premiums are paid. Hamilton paid no
premiums to ONHWP [Ontario New Home Warranty Program], nor did she demonstrate
any foresight in gaining access to it. The guarantee fund was available
to her by statute. ... The ONWHP fund was therefore not
“insurance” in the sense that warranted its exclusion from the doctrine of
mitigation.
All the best,
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435