In British Columbia (Ministry of Children and Family Development) v H.D., 2025 BCCA 457, the British Columbia Court of Appeal confirmed that universal benefits, such as social assistance and support for disabled persons, are generally deductible from future cost of care awards. As of today plaintiffs do not have the option of choosing between these government programs or recovering a similar value from the tortfeasor directly, although the matter is set to be conclusively decided by the Supreme Court of Canada in the coming year.

Background

The infant H.D. suffered a brain injury in January 2007 at the age of six weeks while in the care of her 15-year-old mother and other family members. The household was marked by multi-generational illegal drug use, commercial sexual exploitation, mental illness, and verbal and physical violence. As a result, H.D. was severely disabled and will require 24-hour supervision for the rest of her life.

The Public Guardian and Trustee brought a claim on H.D.’s behalf against the Ministry of Child and Family Development, who conceded that it fell below the standard of care applicable to it in not intervening earlier to protect H.D. The parties agreed on non-pecuniary damages, loss of future earning capacity, and substantially agreed to future care costs. However, the parties proceeded to trial to determine whether the cost of future care award ought to account for near-universal benefits provided by Community Living British Columbia (CLBC), to which H.D. was eligible for. A secondary issue between the parties, but not discussed further in this summary, was with respect to an anticipated change in the 24-hour care required by H.D. when she reached the age of 50 and as a corollary, the associated costs.

Trial

The Trustee urged the trial judge to allow H.D. the choice of whether to accept the CLBC benefits or recoup the costs of private care from the Ministry. H.D. was concerned over the quality of health care she would receive under the government program, the possibility the scope of benefits could change over time, and her inability to receive the benefits outside of British Columbia should she choose to relocate. 

As support, the Trustee relied upon Peters v East Midlands Strategic Health Authority, a decision of the England and Wales Court of Appeal. In that case, the plaintiff sought full compensation for future care costs from the defendant rather than having deductions applied to account for a government program provided on a means basis; recipients were not required to pay for the care if they were not able to. Largely due to the “labyrinthine” and “Byzantine” legislation governing the healthcare program that was “ripe for reform”, the court in Peters found it unlikely the plaintiff would receive an appropriate level of care in the future and granted her full compensation directly from the defendant.

The trial judge ultimately allowed H.D. to opt for a lump sum award for the value of the CLBC benefits against the Ministry upon her promise, entrenched in a court order, not to seek CLBC benefits, as that would best provide her with autonomy and security moving forward.

Court of Appeal

The Ministry appealed on two grounds. It asserted the trial judge:

1. was bound by precedent to follow the established Canadian approach to double recovery by deducting the value of CLBC benefits available to H.D. from the cost of future care award, and that his decision failed to distinguish the facts at issue with the precedential cases.
2. broke from precedent and adopted the Peters approach based on two false premises: (i) a Peters style undertaking resolves the issue of double recovery and (ii) Peters has never been the subject of judicial criticism.

The respondent characterized the Ministry’s position as advocating a forced government benefits rule that would impose an inferior care system and deprive H.D. of choice, private autonomy and appropriate care. They put forward the cases of Ratych v Bloomer, [1990] 1 S.C.R. 940 and Jones v Trudel, 2000 BCCA 298 in support, which were not instructive or overly helpful to the issues at hand as they focused on whether collateral benefits such as private insurance and wage benefits triggered double recovery and were deductible from damages for loss of income. 

After reviewing prior Canadian decisions on the issue, including Krangle v Brisco, 2002 SCC 9 and M.B. v British Columbia, 2003 SCC 53, the British Columbia Court of Appeal noted the consistent adoption in Canada of the general rule of deductibility for universal benefits such as social assistance and support for disabled persons. Contingencies can be applied on a case-by-case basis to account for uncertainties in the extent and type of care provided by public funds.

The trial judge was found to have erred when considering Peters to be persuasive authority that justified departing from the general rule of deductibility entrenched in Canadian jurisprudence. Peters was decided in the context of a different legislative regime that was noted as requiring reform, and there was limited evidence lead on the need for similar change to CLBC’s governing legislation. 

The Court of Appeal also found the trial judge erred when distinguishing the facts at hand from the instructive Canadian authorities on the basis that no prior plaintiffs had offered to renounce the state benefits they were entitled to receive. It was not a “principled way to distinguish the law of deductibility” as the principle reflects complex policy choices and methods that best reflect those choices in the context of Canadian society. Any concerns over the extent of and type of care provided by government programs, including budgetary restraints and competing demands for services, can be addressed by applying contingencies.

Further, the procedural mechanisms implemented in Peters were specific to the U.K’s statutory regime. The case had also been subject to some criticism in the U.K. One decision noted orders with Peters undertakings were no longer being made, a development the authoring judge said was “welcome”. 

The Court of Appeal allowed the appeal and remitted the matter back to the Supreme Court of British Columbia to assess H.D.’s future cost of care award according to established Canadian caselaw.

Supreme Court of Canada

On July 2, 2026, the Supreme Court of Canada granted H.D.’s application for leave to appeal the decision of the British Columbia Court of Appeal. The hearing was not included in the Supreme Court’s Fall/Winter dates and will likely be heard in 2027.

Takeaways

• The general rule regarding deductibility for universal benefits such as social assistance and support for disabled persons remains the correct approach in Canada, subject to the appeal decision at the Supreme Court of Canada. Where there are uncertainties in the extent and type of care provided by a government health program, contingencies can be applied on a case-by-case basis to account for these issues.
• Courts must be careful when departing from established authority in favour of foreign jurisprudence. Such caselaw is not binding and its persuasive significance needs to be considered in a structured, careful way.
• Insurers should monitor the Supreme Court of Canada’s appeal decision closely as it could have a significant impact on the quantum of payouts in bodily injury departments across the country. Plaintiffs may be granted the option to choose between government program benefits and recouping a similar value from tortfeasors, and it is conceivable many will choose the latter due to flexibility and concerns over government programs changing with time.