2017 SKPC 025, 2017 SKPC 025

PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: February 27, 2017 Citation: 2017 SKPC 025 File: 74/17 Location: Regina, Saskatchewan Nickole Leader -and - Saskatchewan Government Insurance FIAT NOTICE OF REFUSAL TO ISSUE SUMMONS P. DEMONG, J [ 1 ]

Section 7 of The Small Claims Act, 1997 authorizes a Judge of this Court to review a claim prior to the issuance of a summons to determine, among other things, whether or not the plaintiff has a valid claim and to determine whether it discloses a triable issue. [ 2 ] In the instant circumstances, it appears that the plaintiff is alleging that Saskatchewan Government Insurance (‘SGI’) declined to provide insurance coverage to her because she allegedly had a suspended licence when she was involved in two separate motor vehicle accidents.

She alleges that SGI wrongly found her to be at fault in at least one of these accidents, and as a result, she has had to pay a surcharge and she was assessed a number of demerit points on her driver’s licence. She is seeking judgment against SGI in the sum of $7,510.93. Read literally, the plaintiff is asking this Court to stand in appeal of the decisions that SGI made and declare that SGI acted improperly. [ 3 ] This Court is a statutory Court and as a statutory Court it has a limited jurisdiction which is set out in

section 3 of The Small

Claims Act, 1997. This Court has no jurisdiction to sit in appeal of a decision made by an administrative body such as SGI, which occasionally makes decisions pursuant to its authority as the ‘administrator’ under The Automobile Accident Insurance Act ( AAIA ). [ 4 ] Notwithstanding this, there are occasions when a decision of this Court will have a similar effect. By example, this Court does have the jurisdiction to determine whether or not a person is negligent in the operation of a motor vehicle and it can thereafter assess damages in favour of the person who was not negligent.

When a person disagrees with an administrative decision of SGI in relation to a finding of liability in a motor vehicle accident, that person has the right to bring an action in this Court against the other driver(s), but not SGI. A plaintiff will typically allege that the other driver was negligent and that as a result of that negligence, they suffered damage. This is called a trial de novo. A judge of this Court will then render a decision on liability for the accident and award damages. This is not an appeal of SGI’s decision. The decision of SGI is not in issue before the Court.

SGI’s administrative decision is simply irrelevant to the Court’s determination of who was at fault for the accident. [ 5 ] Once the Court renders its decision, SGI is obligated to follow the decision of this Court and amend its records to reflect that finding of the Court. Section 6(8) of the AAIA makes it clear that a judgment of the Court is conclusive of the amount of the damage or loss sustained, and the extent of liability that is found against each party to the action.

Therefore, once the Court renders its decision, SGI must reconsider its earlier decision, and if necessary, amend its decision to reflect the decision of the Court. This step will, on occasion, have the effect of eliminating any surcharge or demerit points that may have been assessed by SGI as an insurer. [ 6 ] Alternatively, If a person chooses not to proceed to trial for a determination of liability arising from a motor vehicle accident, but wants to dispute the safety rating assessed by SGI, then she may appeal SGI’s decision, but that appeal does not come to this Court.

By law, that appeal must be brought to the Highway Traffic Board, in accordance with

section 7.2 of the AAIA . [ 7 ] This Court also has the jurisdiction to determine whether or not an insurer has breached an agreement with its insured to indemnify an insured who has been involved in a motor vehicle accident. That obligation arises by virtue of certain principles of insurance law, and in consideration of the statutory provisions governing motor vehicle insurance as set forth in the AAIA and its regulations.

On a consideration of the facts that gave rise to the decision of SGI to decline to indemnify the plaintiff, and a consideration of the relevant law, this Court may conclude that SGI was in breach of its obligation and assess damages arising thereby, but that action is separate and apart from either a finding of fault in a motor vehicle accident, or an appeal of a safety rating. [ 8 ] I recognize that the technicalities that I have described above may seem complicated, but what the plaintiff has done, in drafting her claim, is to throw together multiple concerns, and request that this Court deal with all of them, regardless of its jurisdiction. [ 9 ] If the plaintiff takes issue with SGI’s determination of fault for either or both of the accidents that she was in, she should bring a claim, or two claims (one against each of the drivers that were involved in each of these accidents) and ask this Court to set the matters down for trial so that the Court may determine the issues of liability and damages arising from those accidents.

Thereafter, the Court’s decision(

s) will be forwarded to SGI that it, in turn, may amend its records to reflect the decision(

s) of this Court. If the plaintiff is successful at trial, this approach will have the effect of requiring SGI to change its decision on the issue of a surcharge, or a safety rating. [ 10 ] If the plaintiff wishes to sue SGI for failing or refusing to indemnify her as a result of one or more motor vehicle accidents, then that claim should be separate from her claims against the drivers of those vehicles that were involved in her motor vehicle accidents. [ 11 ] For all of these reasons, the Court refuses to issue a summons for the plaintiff’s claim as presently drafted.

This refusal does not preclude the plaintiff from amending her claim or breaking that claim down into two or three distinct claims and re-filing those claims with the court, or from proceeding in the Court of Queen’s Bench, or in any other manner authorized by law. Dated at Regina, Saskatchewan the 27th day of February, 2017.

P. Demong, J