As can be seen, s. 6 allows the amounts referred to in s. 7
to be deducted from the amount payable to the claimant. I agree
with para. 21 of Green: the language of s. 7 is unambiguous
in directing that the insurer is “entitled to deduct all funds
obtained . . . as compensation. No allowance is made for any
costs incurred in pursing recovery.”
 Indeed, s. 7 requires the deduction not only of amounts
received by claimants, but also the “amounts that were available
to the eligible claimant”. In other words, what must be deducted
is the higher of two amounts: the amount received and the
amount available. Even if it is accepted that Mr. Hartley only
received US$500,000 minus the U.S. fees, he was entitled under
Minnesota law to receive US$500,000 from Minnesota.
 Simply put, the U.S fees are not covered benefits. The
motion judge was therefore correct in finding that those fees
cannot be claimed against Security National as “compensatory
 I do not agree, however, with the motion judge’s conclusion that the U.S. fees can be recovered against Security
National as special damages. As indicated, OPCF 44R does not
offer coverage to Mr. Hartley for U.S. fees, and its terms make
clear that compensation will solely be for a shortfall in compensatory damages caused by an inadequately insured motorist.
To use the vehicle of special damages to provide compensation
for costs incurred in securing compensatory damages undermines the contractual agreement of the parties.
 In coming to his decision, the motion judge was attracted
by the analogy of costs being awarded in actions over and above
policy limits in standard Ontario automobile insurance policy
litigation. That analogy, however, is inapt. There is a material
difference between awarding legal costs to a party payable by
another party in that same action and awarding costs incurred
in a separate action as special damages payable by a party
who was not even involved in the action where those costs
 Since the U.S. fees are not an insurable benefit under
OPCF 44R, Security National should not have to pay them.
In my view, the motion judge therefore erred in holding that
Mr. Hartley could claim the U.S. fees against Security National.
 For these reasons, I would allow the appeal, in part.
 I would dismiss Security National’s appeal from the
motion judge’s order that Minnesota is “underinsured” ( i.e., an
“inadequately insured motorist”) but would allow its appeal from