Can a plaintiff recover the entire loss from a company pension plan if the company pension is not indemnified as a result of the accident?

McLachlin J. stated, at para. 13, that the distinction between indemnity and non-indemnity payments was critical to a discussion of collateral benefits. She expressly acknowledged in Cunningham v. Wheeler that pensions, including Canada Pension Plan benefits and company pension plan benefits, are considered to be non-indemnity payments. She stated that if the insurance money was not paid to indemnify the plaintiff for a pecuniary loss, but paid simply as a matter of contract on a contingency, then the plaintiff has not been compensated for any loss and may claim his or her entire loss from the negligent defendant, without violating the rule against double recovery. [page527]

Although McLachlin J. disagreed with the majority in Cunningham v. Wheeler and concluded that wage benefits paid pursuant to employment plans should be deducted from damages for loss of earnings claimed against the tortfeasor, she held that charity and cases of non-indemnity insurance or pensions were exceptions. The exceptions arose because these payments were not in the nature of indemnification for the loss claimed against the tortfeasor and therefore need not be brought into account. See para. 63.

In B. (M.) v. British Columbia, McLachlin C.J.C. spoke for the court on the issue of whether social assistance was a form of wage or income replacement. She held that social assistance benefits were intended to replace that part of employment income that would normally be spent on basic needs. In my view, B. (M.) is consistent with the test that McLachlin J. set out in her reasons in Cunningham v. Wheeler, at para. 46, where she stated: . . . who paid for the benefit is not the test; the test, rather, is whether the benefit is a replacement or indemnity, for lost wages. If so, it amounts to an indemnification benefit and must be brought into account.