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AUTOMOBILE INSURANCE - Compulsory government schemes

Tuesday, September 08, 2020 @ 9:01 AM  

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Appeal by the insurer SGI from a decision allowing the respondent’s appeal from SGI’s decisions denying the respondent’s claim for no-fault income replacement benefits because of several motor vehicle accidents. Cross-appeal by the respondent from the judge’s decision not to order SGI to award her full indemnity costs of the appeal. The respondent was unable to return to full-time work as an elementary school teacher after a 2005 motor vehicle accident. SGI rejected her request for income replacement benefits stating that her difficulties were being caused by psychological problems unrelated to the accident. The respondent was involved in six additional motor vehicle accidents. SGI rejected her claim with respect to the 2010 and 2011 accidents because there was no objective evidence to support an occupational disability was caused by injuries suffered in these collisions. The respondent appealed SGI’s decisions to the Court of Queen’s Bench. She and SGI raised some very basic questions about the nature of an appeal pursuant to the Automobile Accident Insurance Act and about the rights and roles of the parties in such an appeal. The chambers judge found that, based on the information available to SGI in 2008, SGI’s decision to deny benefits for the 2005 accident was reasonable but accepted the respondent’s testimony that her head was turned to the left at the time of the 2005 accident. This was new information. He then placed considerable emphasis on the respondent’s chronic pain expert and concluded that the injuries she suffered in the 2005 accident materially contributed to her inability to return to teaching and that she was entitled to income replacement benefits. The judge then went on to find that the 2010 and 2011 accidents also materially contributed to the respondent’s inability to return to work. He awarded her party and party costs.

HELD: Appeal and cross-appeal dismissed. While there were significant legal shortcomings in the chambers judge’s approach to the procedural aspect of appeals to the Court of Queen’s Bench brought pursuant to s. 191 of the Automobile Accident Insurance Act, the judge’s ultimate decision was not affected. SGI’s role in such proceedings was that of a first-party insurer resisting a claim, not that of an administrative tribunal defending a decision made in the context of a quasi-judicial mandate. The proceedings should play out as per the requirements of all the applicable provisions of the Queen’s Bench Rules concerning an action commenced by way of statement of claim. While the chambers judge should not have applied s. 113(2) of the Act, in the circumstances here, by asking whether the accidents in issue materially contributed to the respondent’s inability to return to her employment, the chambers judge’s bottom-line decision did not involve a reviewable error. He accepted the respondent’s expert opinion that the 2005 accident was the cause of her inability to return to work. In so doing, the chambers judge, in effect, decided that but for that accident, she would have been able to continue her employment. This was enough to engage the respondent’s entitlement to income replacement benefits. There was no basis for the chambers judge to disregard the expert’s evidence on the basis that it fell outside the scope of his qualifications to give expert opinion evidence. There was no basis for setting aside the costs award. Section 193(11) of the Act did not oblige SGI, in appeals to the commission, to reimburse a successful claimant for the full amount of the expenses that he or she expended on prosecuting the appeal. A claimant who mounted a successful appeal in the Court of Queen’s Bench had no binding statutory entitlement to a full indemnification of the expenses incurred in pursuing that appeal.

Schira v. Saskatchewan Government Insurance, [2020] S.J. No. 284, Saskatchewan Court of Appeal, R.G. Richards C.J.S., P.A. Whitmore, L.M. Schwann, R. Leurer and J.D. Kalmakoff JJ.A., July 27, 2020. Digest No. TLD-September72020003