Andrew Sabean v. Portage La Prairie Mutual Insurance Company

(Nova Scotia) (Civil) (By Leave)




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Commercial law - Insurance - Automobile insurance - Excess insurance - Deductibility of future CPP disability benefits payable to a plaintiff under an “SEF 44 claim” - Interpretation of insurance policy SEF 44 endorsement - Whether court of appeal erred in determining that Canada Pension Plan disability benefits was a “policy of insurance” within the meaning of s. 4(b)(vii) of the SEF 44 endorsement.

In October 2004, Mr. Sabean and his passenger were injured in a motor vehicle accident when the car driven by the tortfeasor struck his vehicle in an intersection. That driver was inadequately insured. Mr. Sabean’s most significant injury was to his left shoulder and arm and eventually had to be amputated to relieve his pain. He could no longer work as a farm labourer and was approved for CPP disability benefits effective February, 2005. In May, 2013, a jury awarded Mr. Sabean damages for his injuries in the amount of $465,408. The amount he received from the tortfeasor’s insurer was $382,131.13. Mr. Sabean then made claim under the excess insurance provisions of his own policy with the respondent, Portage La Prairie Mutual Insurance Company. A dispute arose regarding the deductibility of his future CPP disability benefits. The court was asked to decide whether the value of those future benefits should be deducted from the remaining portion of the damages award.

Lower Court Rulings

September 30, 2013
Supreme Court of Nova Scotia, Trial Division

329383, 2014 NSSC 306
Future CPP disability benefits not deductible from amount payable in damages pursuant to s. 4(b)(vii) of the SEF 44 policy.
June 4, 2015
Nova Scotia Court of Appeal

CA 428986, 2015 NSCA 53
Respondent’s appeal allowed in part; future CPP disability benefits deductible from amounts payable by SEF 44 insurers; matter remitted to trial judge to determining value of applicant’s future CPP disability benefits.