Docket: 1711 Saskatchewan Government Insurance Appellant - v. -, 2011 SKCA 37

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 37 Date: 20110324 Between: Docket: 1711 Saskatchewan Government Insurance Appellant - and - Muhammad Qaisar Respondent Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Heather Laing for the Appellant Muhammad Qaisar (on his own behalf ) for the Respondent Appeal: From: Automobile Injury Appeal Commission

Heard: November 18, 2010 Disposition: Allowed Written Reasons: March 24, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Richards In Dissent: The Honourable Madam Justice Jackson Ottenbreit J.A. I. Introduction [ 1 ] Muhammad Qaisar (“Mr. Qaisar”) and members of his family were injured in a motor vehicle accident on Nov. 12, 2005, and as a result Mr. Qaisar was unable to work. He applied for and was paid income replacement benefits (“IRB”) by Saskatchewan Government Insurance (“SGI”). Mr.

Qaisar appealed the basis upon which SGI calculated his IRB, and several other issues which are irrelevant for this appeal, to the Automobile Injury Appeal Commission (“the AIAC”). The AIAC in its decision dated Nov. 20, 2008 ruled that under the Automobile Accident Insurance Act , R.S.S. c.A-35 (“the AAIA ”), it had authority to lift the corporate veil of Mr. Qaisar’s company and to treat him as though he were self-employed as a sole proprietor. The AIAC ordered SGI to calculate his income for the purpose of IRB on that basis. SGI appeals the decision of the AIAC. II. Evidence and Background [ 2 ] Mr.

Qaisar, his wife and two children were injured in a motor vehicle accident in Regina on Nov. 12, 2005 when their vehicle was struck on the passenger side by another vehicle being pursued by the police. Mr. Qaisar suffered injuries including fractures to his right wrist, right clavicle, right ribs and nose, facial lacerations, whiplash, associative disorder 2, lumbar dysfunction, and cervicogenic headaches. He was hospitalized for four weeks and spent a further two weeks at the Wascana Rehabilitation Centre. [ 3 ] At the time of the accident, Mr. Qaisar worked as an Information Technology Consultant.

He and his wife were each 50% shareholders in Asmaq Consulting Inc. (“Asmaq Inc.”). He solely provided the information technology services on behalf of Asmaq Inc., but in 2004 and 2005, Asmaq Inc. did outsource some work to another company. Mr. Qaisar managed Asmaq Inc. and was paid a salary by the company for his services. Mr. Qaisar’s wife performed bookkeeping services for Asmaq Inc. and was paid a salary by the company for doing so. Most of her time, however, was devoted to looking after the family’s children. All of the revenue generated by Asmaq Inc. was generated by Mr. Qaisar’s consulting work. [ 4 ] Mr.

Qaisar submitted to SGI personal income tax returns and notices of assessment for himself and his wife, financial statements and income tax returns for Asmaq Inc. for the years 2002-2004, and income statements and a profit-loss

summary for Asmaq for the period Nov. 12, 2004 - Nov. 12, 2005. Based on this information, Mr. Qaisar was determined to be eligible to receive IRB based on an annual income of $24,000 from Asmaq Inc. His wife was paid a salary of $18,000 by Asmaq Inc. for the year 2004 and she received IRB on this basis. [ 5 ] Mr. Qaisar appealed SGI’s decision to the AIAC on the grounds that he objected to SGI’s assessment of the IRB in accordance with his 2004 personal income tax return and sought full corporate income replacement based on the 52 weeks prior to the accident. Mr.

Qaisar objected to SGI’s decision to classify him as a salaried employee for the purpose of calculating IRB. He argued that he was self- employed and that his IRB should be calculated using an income equal to that earned by Asmaq Inc. This income was significantly higher than the amount he was paid as an employee of his company. [ 6 ] Immediately prior to the hearing by the AIAC, Mr. Qaisar produced further copies of cancelled cheques paid to him by Asmaq Inc. for the 52 week period of Nov. 12 2004 - Nov. 12 2005.

Based on this, SGI subsequently revised his IRB to reflect employment income of $47,000 for that period. III. The Decision of the AIAC [ 7 ] The AIAC found that Mr. Qaisar was an employee of Asmaq Inc. It also determined that Mr. Qaisar’s use of a corporate structure

for his business was one of convenience only and intended for tax-planning and income-splitting, and that Mr. Qaisar’s and his wife’sincomes were the entire net income of the company which was derived entirely from the consulting services he provided. The AIACobserved that Mr. Qaisar made all decisions with regard to allocating any surplus that existed in the corporation at the end of the yearand he would take money out whenever he needed it.

The AIAC determined that as a result of the accident, the loss to his family was theentire net income of the consulting company, and not the amount reflected as income in his personal tax returns. [8] The AIAC found that the legislators did not intend to create financial hardship simply because a family structured its affairs as acorporation for tax-planning and income-splitting purposes, or otherwise create an injustice within the legislation. The AIAC observedthat the AAIA treats self-employed individuals differently than salaried employees for the purpose of calculating IRB.

After reviewingthe case of Everett v. King (1981) (BC SC), 20 C.C.L.T. 1 (B.C.S.C.), affirmed (1983), (BC CA), 53B.C.L.R. 144 (C.A.) with respect to “lifting the corporate veil”, the AIAC determined that it was an appropriate case in which to do so inrespect of Asmaq Inc. In its view, the lifting of the corporate veil did not offend or contravene the provisions of the legislation. TheAIAC observed that neither “self-employment” nor a “self-employed earner” were specifically defined by the AAIA and that by liftingthe corporate veil, Mr.

Qaisar became parallel to a sole proprietor and his income could be calculated in the same way as that of a soleproprietor. [9] The AIAC ordered SGI to calculate Mr. Qaisar’s income based on Asmaq Inc.’s income as if he were self-employed as a soleproprietor in accordance with the calculations specified in the AAIA and the Regulations. The AIAC also observed that, since Mr.Qaisar’s income was split with that of his wife, and she was receiving IRB as a result of this arrangement, this payment would have to betaken into account and deducted when calculating Mr. Qaisar’s income as self-employed. IV.

Position of the Parties [10] SGI argues that the Legislature, in enacting the AAIA, intended to provide a comprehensive and efficient scheme for providingbenefits to persons injured in motor vehicle accidents, including the payment of IRB. It argues that the AIAC lacked jurisdiction andauthority to step outside of that scheme. It further argues that the AIAC found as a fact that Mr. Qaisar was an employee and that thelegislation itself required that Mr. Qaisar’s IRB be calculated as if he were an employee. It submits that there is no power in thelegislation to lift the corporate veil.

Moreover, SGI argues that going outside the statutory scheme leads to uncertainty and administrativedifficulties for SGI as the administrator of the no-fault scheme, and potential inconsistencies between compensation for particularclaimants. [11] Mr. Qaisar argues that he has extensive and substantial injuries. He argues that the AIAC was correct in its determination to lift thecorporate veil. He indicates that for the purposes of Human Resources and Development Canada, he is not treated as an employee sincehe does not receive Employment Insurance benefits.

He also argues that a representative of Ajilon Canada, his major referral source, in aconversation with SGI stated that he was self-employed and contracted to Ajilon. He argues that it is unjust to treat him as an employeeand that the AIAC was correct in these special circumstances to lift the corporate veil because his losses are real and all losses belong tohim regardless of the entity by which he earns employment. He argues that there was no error in law made by the AIAC. V.

Jurisdiction and Standard of review [12] The Court’s jurisdiction to hear the appeal is found in s. 194(1) of the AAIA, which provides that: The insurer or the claimant may appeal a decision of the Court of Queen’s Bench or appeal commission to the Court of Appeal on aquestion of law only. [13] The standard of review is not an issue in this appeal. VI. Analysis [14] The issue on this appeal is whether the AIAC had the jurisdiction to lift the corporate veil of Asmaq Inc. and to order SGI to treatMr. Qaisar as self-employed.

I propose to use the term “lifting the corporate veil” in these reasons as a convenient shorthand for thenotion of ignoring the legal personality of a corporation. It bears mentioning that the decision of the AIAC in this case is at odds with theits previous decisions in Kemper v. Saskatchewan Government Insurance, 2008 SKAIA 058, S.D. v. Saskatchewan GovernmentInsurance, 2006 SKAIA 42 , 2006 SKAIA 042 and E.D. v.

Saskatchewan Government Insurance, 2006 SKAIA 14 ,2006 SKAIA 014, which dealt with the identical issue of whether an employee of his own corporation would be treated as self-employedfor the purposes of IRB. [15] Administrative decision-makers are creatures of statute; they cannot exceed the powers granted to them by their enabling statute[1].Consequently, the first question to be determined on this appeal is whether the AIAC has, pursuant to the AAIA and its regulations, anystatutory power or jurisdiction to lift the corporate veil and thereby effectively compensate Mr. Qaisar as if he were self-employed.

[16] The principles to be considered by a court, having regard to the “modern approach” to statutory

interpretation articulated by theSupreme Court of Canada, were outlined by this Court in Murphy, supra where Klebuc CJS stated: 18 I turn to the conflicting

interpretations of the Act having regard to the “modern approach” to statutory

interpretation articulated bythe Supreme Court of Canada in a series of cases, including ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC4, 1 S.C.R. 140 (S.C.C.) where it stated at para. 37: [37] For a number of years now, the Court has adopted E.A. Driedger’s modern approach as the method to follow for statutory

interpretation (Construction of Statutes (2nd ed. 1983) at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and theintention of Parliament.

See also Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 (S.C.C.) (at para. 21) from which the abovestatement was drawn. 19 Ruth Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed., (Markham: Butterworths, 2002) suggested at p. 3that the following questions be considered as part of the modern approach when interpreting whether a provision applies to particularfacts: * what is the meaning of the legislative text? * what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did ithope to achieve?

What specific intentions (if any) did it have regarding facts such as these? * what are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature is presumed torespect? [17] With respect to construing regulations, Jackson J.A. in Speir, supra, stated on behalf of the court at paragraph 20: 20 On this appeal, we are... construing both

an Act and regulations. It is a rule of statutory

interpretation that regulations, being subordinate legislation “are construed in the light of the enabling provision” (see: G.C. Thornton, Legislative Drafting, 3rd ed. (London:Butterworths, 1987 at p. 359) ... [18] The objectives and scheme of the AAIA have been described by Klebuc C.J.S. in Murphy v.

S.G.I. at paragraph 21 as follows: The hearing judge correctly stated that the Act creates a "no-fault" insurance scheme whereby an insured, who has not opted out of theAct's no-fault provisions, is entitled to claim compensation for injuries suffered in a motor vehicle accident without regard to whether theinsured was negligent. The amount and kind of compensation payable to an insured is prescribed and limited by the Act and ThePersonal Injury Benefits Regulations, R.R.S. 1995, c. A-35 Reg. 3 (the "Regulations"). Of particular relevance are the IR Benefitsprovisions in Division 4 of

Part VIII of the Act which includes the sections under review. Section 113(2) entitles an injured insured to IRBenefits if the insured is unable to continue the employment he or she held as of the date of the accident. [19] In this context, we turn to the legislation. The principal

section of the AAIA that confers “powers” on the AIAC is s. 193.Subsection 193(7) reads as follows: 193(7) On an appeal, the appeal commission may: (

a) set aside, confirm or vary the insurer’s decision; or (

b) make any decision that the insurer is authorized to make pursuant to this Part. (emphasis added) [20] In this case, the decision of the insurer was set aside by the AIAC. However, this subsection makes clear that the AIAC is bound bythe AAIA. Its power to make decisions is circumscribed by that Act and Regulations[2] and is no greater than the power exercised bySGI.

The extent of this jurisdiction, in respect of the calculation of IRB, is the same as SGI’s jurisdiction and so requires an examinationof s. 113(3) of the AAIA and the Regulations as a first step. [21] Under s. 113(3), SGI is not only authorized but obligated to perform the calculation of a claimant’s “yearly employment income” ina particular manner and in reliance on particular criteria:

(3) The insurer shall calculate the income replacement benefit for the employment that the insured is unable to continue on the following basis: (

a) if the insured holds employment in the employ of another, the yearly employment income of the insured calculated on the basis of the income the insured earned or would have earned from all employments the insured held or would have held but for the accident in the first 180-day period after the accident; (

b) subject to the regulations, if the insured holds an employment as a self-employed earner, the greater of: (

i) the yearly employment income determined in accordance with the regulations for an employment of the same class as the primary employment the insured held or would have held but for the accident in the first 180-day period after the accident; and (ii) the yearly employment income the insured earned or would have earned from all his or her employments held at the date of the accident. [Emphasis added] In short, the IRB calculation under s. 113(3) of the AAIA for a self-employed claimant must be made subject to and in accordance with the Regulations. [ 22 ] The term “self-employed earner” in s. 113(3)(

b) is not defined by the AAIA or the Regulations. However, the Regulations in s. 18(2) sets out the method of calculating the self-employed earner’s yearly employment income. Employment income derived from self- employment relies on “net business income” for the purposes of that calculation: 18

(2) The insured’s yearly employment income derived from self-employment that was carried on at the date of the accident is the greatest amount of net business income that the insured earned within the following periods: (

a) the 12 months before the accident; (

b) the fiscal year before the year prior to the accident; (

c) if the insured has been self-employed for not less than two fiscal years before the date of the accident, the two fiscal years before the year prior to the accident divided by two; (

d) if the insured has been self-employed for not less than three fiscal years before the date of the accident, the three fiscal years before the year prior to the accident divided by three. “Net business income” is defined by the Regulations as follows: 2 (1)... (e) “net business income” means the income derived from self-employment, by the way of a proprietorship or from a partnership interest, less any expense that relates to that income and that is allowed pursuant to the Income Tax Act (Canada) and The Income Tax Act, 2000, but does not include: (

i) any capital cost allowance or allowance on eligible capital property; (ii) any capital gain or loss; (iii) any loss deductible pursuant to

section 111 of the Income Tax Act (Canada) ; or (iv) any mandatory or optional inventory adjustments pursuant to

section 28 of the Income Tax Act (Canada) ; . . . This makes it clear that, for the purposes of income derived from self-employment, only net business income from a sole proprietorship or a partnership interest can be yearly employment income for the purposes of ss. 113(3)(

b) and 18(2) of the Regulations. [ 23 ] This means Mr. Qaisar’s employment income must be calculated pursuant to s. 17 of the Regulations. While s. 17 fits somewhat awkwardly with a situation like Mr. Qaisar’s, where salary was not paid on a perfectly regular basis or at a perfectly even amount, it nonetheless seems possible to read it in a way that will lead to workable results. SGI was able to apply it in the circumstances of this case. [ 24 ] The methodology for calculating IRB for a self-employed earner is mandatory and the applicable

definitions in the Regulations are clear. “Net business income” for the purpose of self-employment is, pursuant to s. 2(1)(e), derived from a proprietorship or from a partnership interest, both of which are well-known legal constructs and both of which would normally be seen as describing the arrangements under which an individual would be “self-employed”. This net business income does not include income derived by way of a salary paid by a corporation. The words of s. 113(3) of the AAIA and ss. 18(2) and 2(1)(

e) of the Regulations, in their “entire context and in their grammatical and ordinary sense”, are reasonably capable of no other meaning.

[ 25 ] The Legislature could have chosen to treat individuals who incorporate their businesses as self-employed, and set out appropriate criteria for when that would be permitted and a methodology to calculate IRB in that case. It has chosen not to do so.

Based on the foregoing, as an initial conclusion, the AIAC is constrained by these mandatory provisions and nothing contained in them allows the lifting of the corporate veil and the treatment of an employee of a corporation as self-employed. [ 26 ] In the context of these statutory and regulatory constraints, it is necessary to determine whether the AIAC otherwise has the power and jurisdiction to lift the corporate veil in the circumstances at hand. Subsection 196.1(9) of the AAIA reads as follows: 196.1

(9) In addition to any powers given to the appeal commission by the Lieutenant Governor in Council, this Act and the regulations, the appeal commission may exercise any other powers that it considers necessary or incidental to carry out the intent of this Part. Any added powers given to the AIAC pursuant to this provision are only in furtherance of the intent of

Part VIII of the AAIA . The question then becomes whether lifting the corporate veil is necessary or incidental to the carrying out of the intent of

Part VIII and, specifically, the provisions relating to the calculation of IRB. [ 27 ] Given the clear and mandatory intent of s. 113(3) with respect to the calculation of yearly income for the purposes of IRB and the factual finding that Mr. Qaisar is an employee, it is difficult to see how treating Mr. Qaisar as self-employed by lifting the corporate veil advances the intent of

Part VIII of the AAIA or is incidental to facilitating the mandatory calculations in s. 113(3). In fact, it does the opposite by circumventing the clear provisions of s. 113(3). [ 28 ] As observed by the AIAC in paragraphs 33 and 36 of Kemper v. S.G.I. : 33 Income replacement benefits are not discretionary benefits under the AAIA ; therefore, in accordance with the Court of Appeal’s decision in Allary v.

Saskatchewan Government Insurance [2006 SKCA 89]; SGI’s decision with respect to the calculation and payment of these benefits must be correct having regard to all of the evidence. ... 36 ...SGI went beyond the provisions of the legislation in taking into account the net income of Kemper Seeds. This is not provided for in the legislation.

The legislation does not normally take into account the income of a corporation in arriving at gross yearly employment income to be used to calculate income replacement benefits, SGI again fairly and properly exercised its discretion in making additional payments on an ex gratia basis;... I conclude that the AIAC has no jurisdiction under s. 193(7) to calculate Mr. Qaisar’s IRB as if he were self-employed on the basis that such powers are incidental to carrying out the intent of

Part VIII. [ 29 ] The other basis upon which the powers under s. 193(7) can be exercised is that it is necessary to carry out the intent of

Part VIII. Unfairness in the operation of the statute is the reason given by the AIAC for lifting the corporate veil as set forth at para. 25 of its decision as follows: [25] We do not believe that the legislators intended to create financial hardship simply because a family structured their affairs as a corporation to allow for tax planning and income splitting. The appellant and his family have been under financial hardship since the date of this accident. The loss to the household income is real.

We do not believe that the legislators intended to create this injustice within the legislation. [ 30 ] The AAIA is a universal no-fault insurance scheme intended (in part) to provide a guaranteed level of IRB to injured persons, regardless of the circumstances of their accidents. As with any universal insurance scheme, this system is a compromise and will necessarily be beneficial to certain claimants, while detrimental to others.

The benefits under this scheme will also be different as compared to the benefits under a different compensation scheme, i.e. tort. [ 31 ] It is not appropriate for the AIAC to import the concepts in Everett v. King , supra into the no-fault system of compensation set out in AAIA . The payments of IRB are statutory payments and not in the nature of damages. This is not to say that legal concepts and principles from the common law generally can never assist in the

interpretation of the AAIA . Any such use, however, must be in harmony with the express provisions of the statute and Regulations and the objects of the scheme of the AAIA . [ 32 ] This universal system has different methods of calculating IRB based on employment status. The methodology incorporates the concept that a person is either employed or self-employed. It also takes into account the traditional legal definition of self-employment, i.e. sole proprietorship or partnership. There is nothing inherently unfair in such an approach.

[33] Additionally, the AAIA does not preclude an injured party from seeking compensation for other income losses not covered under theuniversal scheme. A claimant may, for example, be able to advance a claim for recovery of economic loss under s. 103 of the AAIA,should that

section be relevant and applicable in a given factual circumstance. Lifting the corporate veil to protect an insured from aperceived unfair result under s. 113(3) would render s. 103 meaningless. [34] Even if the statute were in some fashion unfair, it is not for the AIAC to correct that unfairness by importing a common law conceptinto its

interpretation of the statute and to use a methodology which attempts to remedy some statutory lacunae. In Zaidan Group Ltd. v.London, (ON CA), 71 O.R. (2d) 65 (C.A.) the plaintiff attempted to argue that the failure by the municipality to passa bylaw authorizing payment of interest to taxpayers for overpayment of taxes was unfair, and that the common law concept of unjustenrichment applied to allow him to claim interest from the municipality on the overpayment.

The Court at para. 11 states: 11 No case is cited for this statutory exclusion but, to me, it follows logically from an understanding of the development of this formof relief. The common thread of unfairness recognized by the common law breaks when a legislative body acts within its jurisdiction andstipulates, as here, that the municipality shall levy assessed amounts, the taxpayers shall pay those amounts, the municipality may use themoney it has collected, and must refund it if adjusted downward on appeal, with interest if it has passed a by-law.

The statute couldequally have said that a taxpayer must pay the assessed amounts without any recourse by way of complaint. The unfairness of such astatute would be universally denounced but, if it were constitutionally competent to the legislature, the common law would have nothingto say on the subject. There is no question of a gap being left in the legislation for the common law to fill. The taxes are a statutorycreation and the conditions surrounding their payment and repayment must be in the statutes associated with their creation.

The commonlaw cannot characterize competent legislation as unjust, and it would be doing so if it imposed an additional duty to pay interest on astatutory duty to levy and to refund a specific amount of money. [35] In this case there is no gap left to fill by the common law when it comes to the calculation of IRB.

The IRB payments are statutorycreations and, as stated in Zaidan, supra, the conditions surrounding their payment must be found in the statute which created them.There is no power or jurisdiction under s. 196.1(9) in the AAIA as a matter of necessity to characterize s. 113(3) as unjust and toameliorate perceived statutory unfairness by lifting the corporate veil.

It is not within the AIAC’s mandate to rule on the fairness of theresults that the legislation provides, or to even indirectly amend the legislation. [36] The fact that the AIAC noted in its decision that “it may not be appropriate in every factual situation” to pierce the corporate veilhighlights the uncertainty that such an approach would generate. It would place the onus on SGI’s personal injury representatives tomake arbitrary decisions on benefits to be paid to injured persons based on a subjective assessment of what he or she believes to beappropriate.

Whether there is unfairness visited by the statute would be left to be determined by SGI on a case-by-case basis. Thus,upholding the AIAC’s decision in this case would increase the uncertainty and complexity of SGI’s decision-making process.Recognizing the power to “pierce the corporate veil” would leave insured persons in the position of not knowing whether SGI will orwill not in a particular situation employ that principle. [37] More specifically, the AAIC’s approach would create a variety of operational problems.

For example, would SGI have to lift thecorporate veil in every situation where a person operates a small business through a corporation? If not, on what basis is it to decidewhether to take that step? What if a corporation is established only for tax planning purposes but is owned by 2 or 20 or 100shareholders, all of whom draw salaries from it? Will the corporate veil be lifted in such cases? Where is SGI to draw the line and onwhat basis? Further, what happens if a corporation borrows money and uses it to pay an insured a salary higher than the corporation’s netincome?

These, obviously, are just a few of the sorts of problems that would arise if the scheme set out by the AAIA and the Regulationswere approached in the way endorsed by the AAIC. [38] Mr. Qaisar’s argument that he is self-employed because he is not eligible for EI benefits, or that he has been told he is self-employed, cannot succeed either. The basis for his denial of EI benefits, and what others who work with him believe his employmentstatus to be, bear no relationship to whether he is self-employed for the purposes of the AAIA and its regulations. [39] Mr.

Qaisar made an impassioned submission about the severe debilitating effect that the accident has had on him and his family.His personal injuries were clearly visible during his submissions and I have no doubt that he and his family have suffered greatly. Hisarguments, however, appear to be based in part on a belief that SGI should provide full compensation for his losses as if he were under atort system. As mentioned before, Mr. Qaisar is subject to the no-fault provisions which are a compromise and trade-off. They clearly donot provide full compensation for all his losses, nor were they intended to provide that.

However it is useful to know if Mr. Qaisar isgetting the most generous treatment possible under the scheme as it exists. [40] At the conclusion of argument, the Court asked SGI to determine whether Mr. Qaisar’s IRB calculated on the basis of his deemedself-employment as directed by the AIAC was any more beneficial than IRB calculated by SGI on the basis that he was an employee ofAsmaq Inc. Both SGI and Mr. Qaisar filed supplementary material in this regard. The

summary paragraph of SGI’s submission was asfollows:

To summarize the foregoing, the information requested by the Court of Appeal is as follows: - The net self-employment income of Mr. Qaisar as a sole proprietor would be $86,078. For a 2005 accident, the MYIE [3] were $61,139. IRB would be paid on this latter amount in this scenario. - Mr. Qaisar is currently being paid IRB as a salaried earner based on $47,000. Mrs. Qaisar is currently being paid IRB as a salaried earner based on $18,000. The family income is therefore $65,000. [ 41 ] It seems possible, therefore, that (from a family point of view) Mr.

Qaisar is enjoying larger benefits than he would be entitled to if the corporate veil of Qaisar Inc. was lifted. [ 42 ] I conclude that the AIAC has no authority under the AAIA to treat Mr. Qaisar as self-employed and to direct SGI to recalculate Mr. Qaisar’s IRB based on Asmaq Inc.’s income. The appeal of SGI is allowed and the decision of the AIAC respecting this issue is set aside. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 24 th day of March, A.D. 2011. “OTTENBREIT J.A.” OTTENBREIT J.A. I concur “RICHARDS J.A.” RICHARDS J.A.

Jackson J.A. (in dissent) I. Introduction [ 43 ] I find myself in respectful disagreement with my colleagues. I would dismiss the appeal. [ 44 ] The phrase “self-employed earner” is not defined in either The Automobile Accident Insurance Act , R.S.S. 1978, c. A-35 (“the AAIA ”) or The Personal Injury Benefits Regulations , R.R.S., c. A-35, Reg. 3. Since “self-employed earner” is not defined, when one considers the benefits-conferring nature of the legislation and its objects, there is no juristic reason to construe “self-employed earner” to exclude one-person corporations.

The Commission and the Court of Queen’s Bench both have supervisory power under the AAIA . Since the Court of Queen’s Bench would have the authority to lift the corporate veil, if it were appropriate to do so, there is no reason to limit the Commission in this manner. The issue on this appeal, however, is not whether it is appropriate to lift the corporate veil.

The issue is whether the legislature intended to draw a distinction between one-person corporations and sole proprietorships. [ 45 ] It is important to be clear that no one is suggesting that whenever a person is employed by a corporation, and is also a shareholder of the corporation, that Saskatchewan Government Insurance (“SGI”) should consider the person as a “self-employed” earner. The comparison that is being made on this appeal is between a one-person corporation and a sole proprietorship only. [ 46 ] Finally, it should be made abundantly clear that according to the AAIA and the Regulations , Mr.

Qaisar would not be better off if he were found to be a self-employed earner. Such a proposition is not supported by him, and it is not the basis upon which the appeal was argued. II. Background [ 47 ] Muhammad and Asma Qaisar, husband and wife, were injured in a motor vehicle accident on November 12, 2005. Mr. Qaisar was seriously injured. He has been unable to work since the accident. This appeal does not concern Ms. Qaisar.

[48] Prior to the accident, Mr. Qaisar had been an information services consultant. Approximately three years before the accident, hedecided to incorporate a company called Asmaq Inc. The company contracted with various agencies, and Mr. Qaisar performed thework for the company. Under Asmaq’s corporate structure, Mr. and Ms. Qaisar each hold 50 percent of the shares of the company. Mr.Qaisar, however, was the only source of the money generated by the company. According to the evidence, Ms. Qaisar’s primaryobligation was to look after the couple’s small children. [49] It is common ground that Mr.

Qaisar incorporated Asmaq for the purposes of income splitting with his wife. In the year before theaccident, he earned his company $119,600. From this amount, he paid himself “management fees” in the amount of $47,000 and plowedthe rest back into the company in various forms, including into retained earnings. The company did not pay Ms. Qaisar any salaryduring the same period of time. In prior years, the company had paid Ms. Qaisar the rough equivalent of minimum wage for thepurposes of nominal bookkeeping.

When the corporate structure is set aside, Asmaq is a one-person corporation (see: Qaisar v.Saskatchewan Government Insurance, 2008 SKAIA 50 , 2008 SKAIA 050 at para. 28). [50] Following the accident, Mr. and Ms. Qaisar each applied for an income replacement benefit from SGI. Mr. Qaisar took theposition from the outset that he should be considered a “self-employed earner” and, as a consequence, should receive an incomereplacement benefit under the AAIA based on his company’s net income, as if Asmaq were a sole proprietorship.

If he were a “self-employed earner” he would receive an income replacement benefit based on the maximum yearly insurable earnings which, for the year2005, were $61,139. III. SGI’s Decision [51] SGI determined that Mr. Qaisar was not self-employed but was actually an employee of his own company, and awarded him anincome replacement benefit based on the money he had paid to himself in the year before the accident, i.e., $47,000. While the exactfigures are not part of the record, it is understood that Ms. Qaisar was also receiving an income replacement benefit in her own right. [52] SGI found Mr.

Qaisar to be an employee of his company based on its

interpretation of the AAIA and The Personal Injury BenefitsRegulations. The starting point of SGI’s decision was s. 113(3) of the AAIA, which refers to two categories of insured earners: (

i) thosein the employ of another; and (ii) those that are self-employed. The

section reads: 113(3) The insurer shall calculate the income replacement benefit for the employment that the insured is unable to continue on thefollowing basis: (

a) if the insured holds employment in the employ of another, the yearly employment income of the insured calculated on the basis ofthe income the insured earned or would have earned from all employments the insured held or would have held but for the accident inthe first 180-day period after the accident; (

b) subject to the regulations, if the insured holds an employment as a self-employed earner, the greater of: (

i) the yearly employment income determined in accordance with the regulations for an employment of the same class as the primaryemployment the insured held or would have held but for the accident in the first 180-day period after the accident; and (ii) the yearly employment income the insured earned or would have earned from all his or her employments held at the date of theaccident; [Emphasis added.] [53] “Yearly employment income,” referred to in s. 113, is calculated in accordance with the Regulations.

Section 17 of theRegulations explains how to calculate “yearly employment income not derived from self-employment” and s. 18 explains how tocalculate “yearly employment income derived from self-employment.” Those sections are reproduced in their entirety in Appendix “A”to these reasons. [54] SGI decided that Mr. Qaisar is not entitled to have his “yearly employment income” calculated under s. 18 of the Regulationsbecause of the definition of “net business income” contained in s. 2(

e) of the Regulations: 2 (e) “net business income” means the income derived from self-employment, by the way of a proprietorship or from a partnershipinterest, less any expense that relates to that income and that is allowed pursuant to the Income Tax Act (Canada) and The Income TaxAct, 2000, but does not include: (

i) any capital cost allowance or allowance on eligible capital property; (ii) any capital gain or loss; (iii) any loss deductible pursuant to

section 111 of the Income Tax Act (Canada); or

(iv) any mandatory or optional inventory adjustments pursuant to

section 28 of the Income Tax Act (Canada); [Emphasis added.] “Net business income” is used in s. 18(2), which provides the method to calculate “yearly employment income derived from self-employment”: 18

(2) The insured’s yearly employment income derived from self-employment that was carried on at the date of the accident is thegreatest amount of net business income that the insured earned within the following periods: (

a) the 12 months before the accident; (

b) the fiscal year before the year prior to the accident; (

c) if the insured has been self-employed for not less than two fiscal years before the date of the accident, the two fiscal years before theyear prior to the accident divided by two; (

d) if the insured has been self-employed for not less than three fiscal years before the date of the accident, the three fiscal years beforethe year prior to the accident divided by three. [Emphasis added.] Based on the definition of “net business income,” SGI concluded that the AAIA and the Regulations permit yearly employment income tobe calculated only on the basis of s. 18 if the insured earned business income “by the way of a proprietorship or from a partnershipinterest.” SGI determined that the calculation of Mr.

Qaisar’s “yearly employment income” cannot be performed under that section, butmust be performed under s. 17, because, according to SGI, Mr. Qaisar did not earn his income “by the way of a proprietorship or from apartnership interest.” [55] Mr. Qaisar was dissatisfied with SGI’s treatment of his position; he insisted that he was a self-employed earner, and should becompensated as such. He appealed to the Automobile Injury Appeal Commission established under the AAIA on that basis (see: s. 191of the AAIA). IV. The Commission’s Decision [56] In deciding Mr.

Qaisar’s appeal, the Commission identified the issue as being “whether the facts of this case make it an appropriatecase to ‘lift the corporate veil’ and treat the appellant as self-employed” (at para. 17). The Commission wrote: [28]….When we lift the corporate veil, the appellant becomes parallel to that of a sole proprietor and his income can be calculated in thesame way as that of a sole proprietor. In our opinion this does not offend or contravene the provisions of the legislation. [29] It is important to our decision that the appellant was the sole source of income for the corporation.

It seems immaterial to uswhether the appellant injured is a sole proprietor or the one man in a one-man corporation or even one where the shares are held by ahusband and wife. The physical injuries are the same for the appellant as for the sole proprietor and the economic consequences are thesame.

It seems to us illogical to regard the financial loss with respect to the sole proprietor as compensable under the legislation and thelatter as not being compensable. [30] Accordingly, we find it appropriate to lift the corporate veil and order SGI to calculate the appellant’s income as if he were self-employed as a sole proprietorship in accordance with the calculations in the legislation. In order for this to occur, the appellant will haveto provide appropriate proof of income and he is encouraged to be co-operative about doing so.

We also know that the appellant’sincome was split with his wife and that she is/was receiving an income replacement benefit as a result of this arrangement.

That willhave to be taken into account and deducted when calculating the appellant’s income. [31] In reaching this conclusion, we wish to be clear that we recognize that there are limits for piercing the corporate veil and it wouldnot be appropriate to do so in every factual situation. [Emphasis added.] With that, SGI appealed to this Court pursuant to s. 194(1) of the AAIA[4] on the basis that the Commission lacked the “power orjurisdiction” under s. 193(7) of the AAIA[5] to lift the corporate veil in order to place Mr.

Qaisar in the position of a “self-employed”earner for the purposes of the calculation of his income replacement benefits. V. Analysis [57] Before turning to the appeal proper, it is necessary to clarify one matter. I acknowledge the antipathy towards lifting the veil, evenin those cases where the shareholder will benefit from doing so (see: Kevin P. McGuinness, Canadian Business Corporations Law, 2nded. (Markham: LexisNexis Canada, 2007) at §2.58-§2.60).

I also note, however, that there are cases where the courts have lifted theveil to provide appropriate compensation to an injured person in the interests of justice and fairness (see: Everett v. King, (BC SC), [1982] 1 W.W.R. 561 (B.C.S.C.), affirmed (1983), (BC CA), 53 B.C.L.R. 144 (C.A.)). I can see no basisto distinguish that case from this one. Indeed, my colleagues have assumed the accuracy of that case in resolving the appeal as they havedone. [58] In my view, however, it is not necessary to decide the limits of the doctrine or whether it is appropriate for a court to lift the veil inthis case.

It is not necessary to do so, in my view, because this appeal is all about whether the legislature intended that a person who

incorporates his or her own business should be treated differently under the AAIA than a person who operates a sole proprietorship. If the legislature did intend that they be treated differently, then neither the Commission nor this Court has the authority to override the will of the legislature and declare the contrary, by lifting the corporate veil or otherwise.

If the legislature intended that they be treated alike, then SGI may disregard the corporate structure for the purposes of calculating an income replacement benefit, but it can hardly be said that the corporate veil has been lifted in the usual sense of that phrase. [ 59 ] In the end, resolution of this appeal comes back to the very issue raised by Mr. Qaisar in his appeal to the Commission: is he “self- employed” within the meaning of the AAIA and the Regulations ?

The answer to that question depends on the proper construction of the AAIA and the Regulations. [ 60 ] The starting point of that exercise is the AAIA . “Self-employed” earner is used several times in the AAIA : in s. 113 , quoted above, and in ss. 116 , 117 and 122 .

Section 122 provides an income replacement benefit to injured students. Like s. 113, s. 122 does not define “self-employed” earner, and therefore adds nothing further to the analysis. Sections 116 and 117, on the other hand, introduce a new benefit offered under the AAIA , i.e., the right of an injured worker to elect to receive a benefit to hire a substitute worker instead of an income replacement benefit. Subsection 116(1) reads as follows: Substitute worker election 116(1) Subject to the regulations, if an insured is self-employed at the date of an accident and is entitled to an income replacement benefit pursuant to

section 113, 114, 122 or 123, the insured may elect to receive a benefit to hire a substitute worker. In the case of s. 116, there is no limiting definition like “net business income” to determine who is a self-employed earner for the purposes of s. 116. It must be determined upon a reading of the Act as a whole, including a determination of its nature and objects, who is a “self-employed” insured. As with ss. 113 and 122, there is no reason on the face of the legislation that one-person corporations and sole proprietorships should be treated differently with respect to the use of substitute workers.

An injured insured who is unable to carry on his or her own business would have the same need whether the organization is a sole proprietorship or a one-person corporation. Both types of insured may need to carry on their respective businesses until such time as they are well enough to continue to operate the business on their own. The Court must be careful not to define a phrase for the whole of the Act by resorting to a definition contained in the Regulations that has no application to the balance of the Act. [ 61 ] SGI’s task was to determine whether Mr.

Qaisar fell into either s. 17 or s. 18 of the Regulations . To accomplish that task, SGI made the determination that Mr. Qaisar was not self-employed solely on the basis of the definition of “net business income.” The definition of “net business income” does not, however, define who is self-employed. It only defines “net business income.” It was incumbent on SGI first to determine whether or not Mr.

Qaisar was self-employed, and if he was, then to determine how to calculate “net business income.” [ 62 ] The pertinent parts of s. 17 provide: 17(1) In this section, “work cycle” means the length of time or the number of hours of work, as determined by the insured’s employer , that an insured must complete to earn the insured’s regular salary or wages.

(2) Subject to any other provision of these regulations, the insured’s yearly employment income not derived from self-employment at the date of the accident is to be calculated on the sum of the following: (

a) the greater of: (

i) the salary or wages regularly payable , excluding the benefits or commissions mentioned in clauses (

b) and (c), earned in the work cycle immediately prior to the accident in which the insured is entitled to an income replacement benefit multiplied by the number of work cycles in a normal 12-month period; (ii) the salary or wages regularly payable , excluding the benefits or commissions mentioned in clauses (

b) and (c), earned in the 12 months before the accident; and (iii) the salary or wages regularly payable , excluding the benefits or commissions mentioned in clauses (

b) and (c), earned or to be earned in each work cycle in the first 180-day period after the accident in which the insured is entitled to an income replacement benefit multiplied by the number of work cycles in a normal 12-month period; (

b) any of the following benefits, to the extent that the benefit is not received as a result of the accident and to the extent the benefit is regularly payable to the insured : (

i) a bonus earned in the 12-month period prior to the accident; (ii) tips, in the amount that is the greater of: (

A) the amount reported in the insured’s personal income tax return in the calendar year before the accident; and (

B) the amount reported in the insured’s personal income tax return for the calendar year in which the accident occurred;

(iii) remuneration for overtime hours that is earned in the 12-month period prior to the accident; [Emphasis added.] Mr. Qaisar’s “yearly employment income” under this

section is zero. He does not follow a work cycle, and he has no employer otherthan himself. He never received any “salary or wages regularly payable.” He would take a draw irregularly, when and if it were needed(Transcript of Proceedings of Hearing, p. 40.) [63]

Section 18 of the Regulations, on the other hand, provides for a detailed calculation for that category of persons who derive theirincome from self-employment (the word used in s. 18).

Section 18 refers to the calculation of “net business” income for the purposes ofcalculating yearly employment income according to a consistent application of generally accepted accounting principles. According tothe nature of his employment structure, Mr. Qaisar fits more easily into s. 18 than into s. 17. [64] It is also important to note that the definition of “net business income” does not exclude one-person corporations.

For ease ofreference, the definition reads: 2. (e) “net business income” means the income derived from self-employment, by the way of a proprietorship or from a partnershipinterest, less any expense that relates to that income and that is allowed pursuant to the Income Tax Act (Canada) and The Income TaxAct, 2000… There is no interpretive principle that requires the underlined phrase to be read as an exhaustive list, and it does significant harm to theno-fault insurance scheme to do so. Indeed, the words “by way of” are often used to introduce a non-exhaustive list.

According to theOxford English Dictionary (online), the phrase “by way of” means “as an instance of, as something tending or amounting to, somewhatunder the form of.” [65] It is in keeping with a consistent, transparent and equal insurance scheme to treat a corporation that looks like a sole proprietorshipin the same manner as one treats a sole proprietorship. SGI’s

interpretation of the legislation results in a no-fault insurance scheme inwhich the size of the benefit awarded to the injured owner of a one-person corporation depends entirely on that person’s chance to draw alarge or a small amount of money in the years leading up to the accident. If Mr. Qaisar had withdrawn $20,000 from Asmaq’s earningsin the year before the accident, he would be forever fixed as an employee having earned $20,000, notwithstanding the fact that hiscorporation’s income, as a result of his labour alone, exceeded $85,000.

It is questionable that we should interpret the legislation so as tolead to such a result. Nothing in the evidence justifies treating those in Mr. Qaisar’s position differently from those who operate theirbusinesses as a sole proprietorship. The legislature could, of course, have decided to draw this distinction explicitly, but it has not doneso. If the legislature had intended that this category of insured be treated so differently, it would have done so expressly. [66] An examination of prior decisions of the Commission reinforces my view. In Kemper v.

Saskatchewan Government Insurance,2007 SKAIA 58 , 2007 SKAIA 058, SGI officials initially treated a person who had incorporated his own business as beingself-employed. At some later point, SGI determined that in doing so they were not abiding by the definition of “net business income,”but nonetheless, they continued to pay Mr. Kemper as if he were self-employed by way of ex gratia payments. The Commissioncommended SGI for doing so. In S.D. v.

Saskatchewan Government Insurance, 2006 SKAIA 42 , 2006 SKAIA 042, faced withan income from the insured’s company that bore little relation to the insured’s earnings for the company, SGI increased the amount ofthe yearly earnings to arrive at a fairer result. Such an important benefit should not depend on the receipt of an ex gratia payment. [67] Thus, having regard for ss. 113 and 116 of the AAIA, the purpose of the AAIA and a reading of ss. 17 and 18 of the Regulations, Iconclude that the legislature intended persons in the position of Mr. Qaisar to be considered “self-employed earners” under the AAIA.

This conclusion sustains the result of the Commission. [68] There is a final matter. The Commission correctly concluded that if Mr. Qaisar is a self-employed earner, Ms. Qaisar cannot betreated as an employed earner of Asmaq. At the conclusion of oral argument, the Court asked SGI to provide submissions on whetherMr. Qaisar’s income replacement benefit, if calculated on the basis of his self-employed status, would result in a higher total familyincome than a benefit calculated on the assumption that he was an employee of Asmaq. [69] The

summary paragraph of SGI’s submission states: To summarize the foregoing, the information requested by the Court of Appeal is as follows: • The net self-employment income of Mr. Qaisar as a sole proprietor would be $86,078. For a 2005 accident, the MYIE were$61,139. IRB would be paid on this latter amount in this scenario. • Mr. Qaisar is currently being paid IRB as a salaried earner based on $47,000. Mrs. Qaisar is currently being paid IRB as asalaried earner based on $18,000. The family income is therefore $65,000. Read alone, this part of the submission suggests that when Ms. Qaisar’s entitlement is deducted from Asmaq’s net business income, the

family unit receives less than it presently receives, if Mr. Qaisar were compensated as a “self-employed earner.” This calculation, however, does not determine what Ms. Qaisar would receive in her own right. Elsewhere in SGI’s submissions, it is made clear that just because someone is an unemployed earner does not mean that he or she is entitled to no compensation under the AAIA . The amount of Ms. Qaisar’s benefit depends on a number of variables, including whether she is able to care for their children and her employability.

In short, the result in this case cannot be justified on the basis that it would be advantageous to Mr. Qaisar to be considered an employee of his own company. I note, in particular, that Mr. Qaisar responded to SGI’s submission by saying that he is a self-employed earner and entitled to receive compensation on that basis. VI. Conclusion [ 70 ] I would dismiss the appeal. Mr. Qaisar is a “self-employed earner” within the meaning of the AAIA and the Regulations . DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of March, A.D. 2011. “JACKSON J.A.” JACKSON J.A.

Appendix A The Personal Injury Benefit Regulations DIVISION 2 Determination of Employment Income YEI not derived from self-employment 17(1) In this section, “work cycle” means the length of time or the number of hours of work, as determined by the insured’s employer, that an insured must complete to earn the insured’s regular salary or wages.

(2) Subject to any other provision of these regulations, the insured’s yearly employment income not derived from self-employment at the date of the accident is to be calculated on the sum of the following: (

a) the greater of: (

i) the salary or wages regularly payable, excluding the benefits or commissions mentioned in clauses (

b) and (c), earned in the work cycle immediately prior to the accident in which the insured is entitled to an income replacement benefit multiplied by the number of work cycles in a normal 12-month period; (ii) the salary or wages regularly payable, excluding the benefits or commissions mentioned in clauses (

b) and (c), earned in the 12 months before the accident; and (iii) the salary or wages regularly payable, excluding the benefits or commissions mentioned in clauses (

b) and (c), earned or to be earned in each work cycle in the first 180-day period after the accident in which the insured is entitled to an income replacement benefit multiplied by the number of work cycles in a normal 12-month period; (

b) any of the following benefits, to the extent that the benefit is not received as a result of the accident and to the extent the benefit is regularly payable to the insured: (

i) a bonus earned in the 12-month period prior to the accident; (ii) tips, in the amount that is the greater of: (

A) the amount reported in the insured’s personal income tax return in the calendar year before the accident; and (

B) the amount reported in the insured’s personal income tax return for the calendar year in which the accident occurred; (iii) remuneration for overtime hours that is earned in the 12-month period prior to the accident; (iv) the cash value from a profit-sharing plan allocation earned in the 12-month period prior to the accident; (

v) the value of the personal use of a motor vehicle provided by an employer at the date of the accident, in the amount reported in the insured’s personal income tax return in the calendar year before the accident or, if no amount was reported, in an amount calculated

pursuant to paragraph 6(1) (

e) of the Income Tax Act (Canada) as an annualized benefit; (vi) the cash value of premiums of employer funded benefit plans paid to the insured in the 12-month period prior to the accident; (vii) the cash value of any other benefit received or that the insured was entitled to receive in the 12-month period prior to the accident, excluding employer funded benefit plans; (

c) commissions, in the amount that is the greatest of the commissions earned or to which the insured was entitled: (

i) for the 12-month period prior to the accident; (ii) for the calendar year prior to the accident; or (iii) for the three calendar years prior to the accident divided by three.

(3) Notwithstanding clauses (2)(

b) and (c), if an insured did not hold the employment held at the date of the accident in the 12 months before the accident and the insured can prove that he or she would have earned in the year after the accident a regular benefit or commission, the insurer shall include that benefit or commission in the calculation of the insured’s yearly employment income.

(4) Notwithstanding clause (2)(a), the yearly employment income for an insured for the first 180-day period after the accident: (

a) must be calculated on the hours of work the insured would have held and on the rate of pay the insured would have earned in the first 180-day period after the accident; and (

b) must only be paid to the insured for that period of time the insured would have been employed in the first 180-day period after the accident. YEI derived from self-employment 18(1) In this

section and in

section 26: (a) “fiscal year” means the insured’s fiscal year; (b) “fixed costs” means the following costs to the extent they are actually incurred by the insured at the time his or her income replacement benefit is calculated: (

i) business taxes; (ii) business licensing fees; (iii) interest charges on mortgages or loans for land, buildings, vehicles or equipment necessary for the insured’s business; (iv) rental or leasing fees; (

v) lease cancellation costs; (vi) insurance costs; (vii) property taxes.

(2) The insured’s yearly employment income derived from self-employment that was carried on at the date of the accident is the greatest amount of net business income that the insured earned within the following periods: (

a) the 12 months before the accident; (

b) the fiscal year before the year prior to the accident; (

c) if the insured has been self-employed for not less than two fiscal years before the date of the accident, the two fiscal years before the year prior to the accident divided by two; (

d) if the insured has been self-employed for not less than three fiscal years before the date of the accident, the three fiscal years before the year prior to the accident divided by three.

(3) For the purposes of subsection (2): (

a) the insured’s net business income must be determined in accordance with generally accepted accounting principles; and (

b) the net business income for each period set out in subsection (2) must be calculated in a consistent manner.

(4) Subject to subsections (5) and (6) and

section 26, in calculating the insured’s yearly employment income, the insurer shall add back all fixed costs actually required to be paid by the insured at the date of the accident if the insured’s yearly employment income is:

(

a) determined on the basis of the insured’s actual net business income; and (

b) the insured is required to suspend or wind-up the business as a result of the accident.

(5) The insured’s fixed costs are only to be considered in determining the insured’s yearly employment income for the first 12 months following the accident.

(6) If an insured has an opportunity to reduce his or her fixed costs and the insured fails to do so, the insurer may reduce the benefit for those fixed costs by the amount of any reduction or refund the insured would have been entitled to receive had the insured properly mitigated his or her loss.

(7) If the insurer is not satisfied that the calculation of employment income from self-employment provided by the insured for the purposes of clause (2)(

a) is accurate or complete or is useful for the purposes of determining whether the insured is entitled to benefits pursuant to

Part VIII of the Act, the insurer may require the insured to prepare and submit a new calculation of employment income from self-employment that is prepared by an accountant who is a member of a recognized accounting profession that is regulated by

an Act.

(8) If the insurer requires an insured to submit a new calculation of employment income from self-employment pursuant to subsection (7), the insurer shall reimburse the insured for the fees charged by the accountant to a maximum of $1,000. [5] s. 193(7) On an appeal, the appeal commission may: (

a) set aside, confirm or vary the insurer’s decision; or (

b) make any decision that the insurer is authorized to make pursuant to this Part . [Emphasis added.]