Counsel on behalf of the plaintiffs contend there is an “insurance exception” as finds its basis in Cunningham v. Wheeler, 1994 CanLII 120 (SCC),  1 S.C.R. 359 which as it relates to these proceedings deals with the issue of double recovery of applicable damages by a plaintiff and/or the deductibility of insurance proceeds received by the plaintiff being deducted from damages otherwise payable by one or more of the defendants. That decision deals with recovery and/or deduction of payments made pursuant to disability insurance received in relation to an injury claim. Counsel on behalf of the defendant applicants contends that the issue of the “insurance exception” is a live issue in Canada and it is an issue which he wishes addressed by the trial judge. At issue is whether or not a plaintiff benefits from the proceeds of insurance paid for by it or alternatively, a defendant benefits from insurance proceeds paid to a plaintiff as a result of insurance paid for by the plaintiff.
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