AUTOMOBILE INSURANCE - Accident benefits - Income replacement

Appeal by Mercier from a decision of the Automobile Injury Appeal Commission dismissing his appeal from the decision of the Saskatchewan Government Insurance (SGI) terminating his accident benefits. The appellant was injured in a 2013 motor vehicle accident and received no-fault Income Replacement Benefits. He suffered a significant injury to his right shoulder that required surgery in April 2015. In August 2015, a report was prepared by a physiotherapist and occupational therapist which indicated that the appellant participated fully in his rehabilitation and was meeting all his job demands, and that he returned to working regular hours and duties. A Vocational Progress Report dated September 2015 and a Vocational Closure Report both observed that the appellant had been cleared to return to work at his regular hours and duties and noted that he had not raised any concerns about returning to work. Before the Commission, the appellant disputed that he was able to return to work. The Commission found that SGI established the appellant was able to perform the essential duties of his employment. The Commission was satisfied that SGI was correct in reducing and terminating the appellant’s income replacement benefits. The Commission determined that the 2017 amendments to the Personal Injury Benefit Regulations did not apply retrospectively. Certain of the amendments related to the calculation of an insured person’s income replacement benefits and defined who was a “self-employed earner” and how these benefits were calculated for self-employed earners. The appellant argued the Commission erred in its assessment of the evidence and by determining that the 2017 amendments to the Regulations did not apply retrospectively.

HELD: Appeal dismissed. The Commission’s conclusion regarding the appellant’s ability to work on the date his benefits were terminated was not the product of either misapprehension of evidence or an irrational inference. The Commission gave adequate reasons why SGI’s evidence was accepted over the appellant’s evidence. There was clear evidence before the Commission that, as of August 2015, the appellant had been discharged from his rehabilitation program, was considered safe to return to work, was meeting his job demands and had returned to working regular hours and duties. There was clear evidence that he was satisfied with his treatment and recovery and that he raised no concerns about his rehabilitation after that point with any of the professionals who had been treating him. This was not speculation. It was evidence that the Commission was entitled to, and did, accept. There was a strong presumption that legislation and regulations were not to have retroactive application, and the appellant had not demonstrated that the presumption was rebutted in this case. The appellant’s interpretation of s. 21(3) of the Regulations had no impact on the question of whether the Amendments should have been applied to the determination of his income replacement benefits entitlement. It would affect only the calculation of quantum of benefits, if he were entitled to them. The Commission made no error when it confirmed SGI’s decision to terminate benefits. As of the 2015 termination date, the appellant was no longer entitled to benefits. Nothing about his situation straddled the coming-into-force of the Amendments. What he sought was retroactive application of the Amendments, not retrospective application.

Mercier v. Saskatchewan Government Insurance, [2020] S.J. No. 474, Saskatchewan Court of Appeal, R.G. Richards C.J.S., N.W. Caldwell and J.D. Kalmakoff JJ.A., December 9, 2020. Digest No. TLD-January252021010