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AUTOMOBILE INSURANCE - Benefits to insured student

Tuesday, May 07, 2019 @ 8:32 AM  

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Appeal by the insurer from a decision of the Automobile Injury Appeal Commission finding that the insured G was entitled to a loss of studies benefit under s. 121 of The Automobile Accident Insurance Act, to be paid based on her studying at a post-secondary level of education. Cross-appeal by G from the Commission’s decision not to award her solicitor and client costs. G was injured in a motor vehicle accident in 2011. She was 48 at the time and a full-time college student in the Level 2 Adult Basic Education Program. The Commission found as a fact that the College was a post-secondary school and that G was enrolled in a course that prepared her for a career, addressed questions of literacy or provided upgrading. G argued the Commission erred in awarding the costs it did. She argued that ss. 193(11), 193(12), read in the context of s. 171 and the Automobile Accident Insurance Act as a whole, required the Commission to reimburse successful claimants for solicitor–client costs in every case as s. 171 created absolute liability on the insurer to provide all benefits due to her under the Act. This would not be the result if she was required to pay some of her own legal costs from the insurance benefits.

HELD: Appeal and cross-appeal dismissed. The Adult Basic Education Program in which G was enrolled was at a post-secondary level. The term post-secondary level in s. 121 of the Act, interpreted broadly and expansively, referred to any program of studies not tied to, congruent with or restricted to the elementary and secondary levels of studies as defined by the Education Act, 1995, and was taught at an educational institution that was not administered pursuant to the Education Act, 1995. The content of G’s studies in the Adult Basic Education Program, although having some equivalency to the educational content of grade 9, was different both in terms of content and the way it was taught. It was geared to her as an adult and was not tied to, congruent with or restricted to the elementary and secondary levels as defined in The Education Act, 1995. She was thus taking her studies at a post-secondary institution. The Commission had the power to award either solicitor–client or party–party costs to a successful claimant subject to taxation. Neither s. 193(11) nor s. 193(12) of the Act said anything about a duty on the Commission to order actual costs or solicitor–client costs to a successful claimant. The Commission had a discretion but not an obligation to award solicitor–client costs.

Saskatchewan Government Insurance v. Gardipy, [2019] S.J. No. 116, Saskatchewan Court of Appeal, G.R. Jackson, R.K. Ottenbreit and L.M. Schwann JJ.A., April 5, 2019. Digest No. TLD-May62019005