There is a passage from a well-cited decision ¹ which refers to rarity of the decision to award disability beyond the date of trial. The suggestion of such a declaration of a continuing disability as a rare event has proven to be overreaching.

Many cases have in fact done so, without the policy presumption. Such was so in the 1999 decision of Zarzeczny J. in which the plaintiff recovered arrears of “own occupation” benefits and a declaration that she remained disabled as of the date of trial and was entitled to future benefits. ²

Equally this was the finding of the Alberta Court of Queen’s Bench ³in which the plaintiff requested a present payment representing the present day value of the plaintiff’s future benefits until age 65. The court declined this request as there was some uncertainty as to the permanence of the plaintiff’s disabilities and to do so would deny the insurer the right of ongoing medical examinations. The declaration with respect to ongoing disability entitlements was awarded. ⁴

The trial judge and the B.C. Court of Appeal ⁵considered and rejected the plaintiff’s request that future disability entitlements beyond the date of trial be commuted and paid immediately. The court rejected the request not only because it lacked jurisdiction to do so under section 202 of the B.C. Insurance Act, but also because it would deny the insurer the advantage of the plaintiff recovering partly or completely.

Mason J. did refer to the Bacon ⁶decision but proceeded to award a future claim in the following terms, noting the possibility of a material change to the plaintiff’s diabetic condition and the prospect of alternate income being attained. ⁷