Docket: 1761 Arlene Caplette Appellant - v. -, 2011 SKCA 69

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 69 Date: 20110610 Between: Docket: 1761 Arlene Caplette Appellant - and - Saskatchewan Government Insurance Respondent Coram: Jackson, Richards & Ottenbreit JJ.A. Counsel: Reginald A. Watson, Q.C. for Arlene Caplette Lori Sandstrom for Saskatchewan Government Insurance

Appeal: From: 2009 SKAIA 18 , 2009 SKAIA 018 Heard: February 16, 2011 Disposition: Appeal Dismissed Written Reasons: June 10, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Jackson J.A. I. Introduction [1] This appeal concerns the

interpretation and application of the definition of “surviving spouse” in the determination of death benefitsunder The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”). [2] Arlene Caplette and Barry Caplette were married on September 21, 1996. Two children were born of the marriage: S., born January14, 1998 and S., born September 3, 2000. Ms. Caplette and the children moved to Alberta on May 7, 2006. Mr. Caplette stayed behind. He died in a motor vehicle accident on July 15, 2007. Ms. Caplette claimed death benefits under the Act on the basis that she is a“surviving spouse.” [3] Under

Part VIII, Division 5 of the Act, death benefits are payable to the “surviving spouse” of an insured. When there is no“surviving spouse,” the funds are paid to the minor children of the insured. Saskatchewan Government Insurance (“SGI”) denied Ms.Caplette’s claim on the basis that she was not a “surviving spouse” under the Act and paid those benefits instead to her two children andtwo other minor children of Mr. Caplette from previous relationships. [4] Ms. Caplette appealed SGI’s decision to the Automobile Injury Appeal Commission (the “Commission”). The Commissionconcluded that Ms.

Caplette is not the “surviving spouse” of her husband, as they were living separate and apart at the time of his deathand had been doing so for more than one year (see: 2009 SKAIA 18 , 2009 SKAIA 018). [5] Ms. Caplette appealed the Commission’s decision to this Court on several questions of law. In addition to asserting that theCommission had committed no errors of law, SGI asked this Court to revisit its prior jurisprudence and to conclude that the properstandard of review should be reasonableness according to the Supreme Court of Canada’s decision in Dunsmuir v.

New Brunswick, 2008SCC 9, [2008] 1 S.C.R. 190. [6] In the result, relying on past decisions of this Court, I have approached the analysis of this appeal on the basis of a correctnessstandard of review and have not undertaken the Dunsmuir analysis. On a standard of review of correctness, the decision of theCommission reflects no errors of law. I would dismiss the appeal with costs on Column 1, if requested. II. Issues [7] The grounds of appeal and the submissions of the parties resolve themselves into the following issues: 1.

What is the applicable standard of review to be applied to the review of a decision of the Commission? 2. Did the Commission err in law in its

interpretation of the definition of “surviving spouse” in clause 2(ss) of the Act? 3. Did the Commission err in law by placing the onus on Ms. Caplette to prove that she is a “surviving spouse”? 4. Did the Commission err in law by failing to apply the rules of evidence with respect to hearsay evidence? 5. Did the Commission err in law by concluding that Ms. Caplette was living separate and apart from her husband at all times fromMay 2006?

III. Issue #1: What is the Applicable Standard of Review? [8] Under the Act, SGI’s decision is deemed final and conclusive and is reviewable only in accordance with

Part VIII (see:

section 188). Division 11 of

Part VIII of the Act permits a claimant to appeal a decision of SGI to either the Court of Queen's Bench or to theCommission (see: subsection 191(1)).

The Act contains a further right of appeal to the Court of Appeal, but only on a question of law: 194(1 ) The insurer or the claimant may appeal a decision of the Court of Queen's Bench or appeal commission to the Court of Appeal ona question of law only. [Emphasis added.] [9] SGI asked this Court to conclude that Dunsmuir, supra provides the proper framework of analysis for the review of the matters inissue on this appeal, and that the standard of review with respect to those matters is reasonableness. Ms.

Caplette submitted that theCourt should review the matters in issue according to the same standard of review that would be applied to the review of a decision ofthe Court of Queen’s Bench made pursuant to

section 191 of the Act. [10] In Murphy v. Saskatchewan Government Insurance, 2008 SKCA 57, [2008] 7 W.W.R. 401, this Court addressed the issue of theappropriate standard of review to be applied to decisions of the Court of Queen’s Bench made pursuant to

section 191 of the Act. TheCourt in Murphy followed its decision in Gallop v. Mulatz, 2008 SKCA 29, [2008] 5 W.W.R. 231, which reiterated this Court’s long-standing approach to review of decisions of the Court of Queen’s Bench: [34] To the extent the points give rise to issues of law, in the sense they call into question the trial judge's identification of the relevantlaw, including the judge's selection and

interpretation of the law, the power of the Court to act on its own view of the law is not fetteredin this or any other way. If, in the judgment of the Court, the trial judge's identification of the relevant law is not "correct" the Court is tosubstitute its own view of the law for that of the trial judge and act accordingly: Housen v. Nikolaisen, [2002] 2 S.R.C. 235.

In general,this is also true of the application of the law to the facts as found, for this entails evaluating the facts against a legal standard, a matterthat calls for a normative judgment and the drawing of conclusions in law based on the facts as found: St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; ABB Inc. v. Domtar Inc., 2007 SCC 50; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd., (2002), 2002 SKCA 100 , 223Sask. R. 236 (C.A.).

The Court in Murphy went on to state the circumstances in which a determination of fact may give rise to a question of law: [5] Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to afinding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (

a) isbased on no evidence; (

b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (

c) is based on an irrationalinference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al., 2007 SKCA 149,(2007), 302 Sask. R. 161 at paras. 60-65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, ofcourse, extends to such errors of law. As pointed out by counsel for SGI, Murphy dealt with appeals from the Court of Queen’s Bench and did not address the appropriateapproach to review of Commission decisions.

Gallop and Murphy do, however, influence the analysis that must be undertaken todetermine the proper standard of review of decisions of the Commission. [11] This Court has previously concluded that the approach to review should be the same for all

section 194 appeals, regardless ofwhether the appeal is from a Queen’s Bench decision or a decision of the Commission. In McAdam v. Saskatchewan GovernmentInsurance, 2010 SKCA 139 at paras. 6-7, 362 Sask. R. 312 (aff’g sub nom D.N. v. Saskatchewan Government Insurance, 2008 SKAIA47 , 2008 SKAIA 047), the Court specifically applied Murphy to an appeal from a decision of the Commission. Indeed, theCourt in McAdam addressed the same question that Ms. Caplette raises on this appeal: what is the proper

interpretation of the

definitionsof “spouse” and “surviving spouse” in the Act for the purposes of determining death benefits. The Court applied a standard of review ofcorrectness. Similarly, in Saskatchewan Government Insurance v. Becker and Automobile Injury Appeal Commission, 2011 SKCA 24 atpara. 23, 366 Sask. R. 254, the Court applied the standard of correctness to the Commission’s

interpretation of the Act, although it did notexplicitly articulate its view as to the appropriate approach to review. [12] While there have been occasions when a three-judge panel of this Court has reversed a decision of a previous panel, it is the generalrule and tradition to ask the Chief Justice to set a larger division of the Court for the purposes of revisiting prior jurisprudence. Counselfor SGI has not persuaded this Court that there is any reason to depart from that general rule on this appeal. Moreover, whether astandard of review of correctness or reasonableness is applied, the result in this case would be the same. IV. Issue 2: Did the Commission err in law in its

interpretation of the definition of “surviving spouse” in clause 2(ss) of the Act? [13] Mr. and Ms. Caplette were married at the time of the accident, but Mr. Caplette had been living in Saskatchewan and Ms. Caplettewas residing in Alberta—and had been doing so for approximately 15 months. Under the Act, surviving dependants are entitled tobenefits. Ms. Caplette, as the legally married spouse of Mr. Caplette, survived him. The issue for the Commission was whether she was

a “surviving spouse” according to the terms of the Act . [ 14 ] The Act provides two

definitions that are relevant in this case: “spouse” and “surviving spouse.” These words are defined in clauses 2 (rr) and (ss) of the Act : 2 (rr) “ spouse ” means : (

i) the spouse of the insured who is, at the date of the accident, residing with the insured ; or (ii) a person with whom, at the date of the accident, the insured is cohabiting and has cohabited as a spouse: (

A) continuously for a period of not less than two years; or (

B) continuously for a period of not less than one year, if they are parents of a child; (ss) “ surviving spouse” means a spouse of an insured and includes a former spouse of an insured who, at the date of the accident : (

i) had been living separate and apart from the insured for one year or less ; (ii) was receiving spousal support from the insured; or (iii) had a court order or agreement with the insured entitling that person to spousal support from the insured; [emphasis added] [ 15 ] The Commission began its analysis by noting the seeming anomaly in clause 2 (rr). On a literal

interpretation of the clause, many legally married spouses in today’s society would not be spouses under the Act on the basis that they maintain separate residences and commute between them. The Commission, however, rejected this literal

interpretation of clause 2(rr) by reading into it the need to prove an absence of marital consortium for the parties to be considered living “separate and apart”: [53] What the two

definitions – “spouse” and “surviving spouse” − appear to us to attempt to differentiate are spouses who maintain marital consortium and those who are living separate and apart in the sense that the phrases are used in the context of matrimonial and divorce law. In that context, a couple can reside physically separately and yet not be living separate and apart. [54] We think the word “residing” in the definition of spouse must be read as meaning “not living separate and apart” and is intended to convey the continuity of the marriage relationship.

Read in this way, a committed married couple who reside in separate residences or separate communities for reasons unrelated to marital break-up will be included as spouses. Thus, if a legally married couple resides together, they will be considered spouses for purposes of the Act but if they reside separately, further inquiry may establish that they are nonetheless spouses. . . . [56] The definition of “ surviving spouse ” includes those who are spouses pursuant to

section 2(rr) – that is, those who are not living separate and apart – but additionally includes some of those who were previously spouses for purposes of 2(rr) but who no longer meet that definition . [2009 SKAIA 018; emphasis added.] [ 16 ] The Commission then proceeded to determine whether Ms. Caplette and the deceased were living “separate and apart” — or, in the

interpretation adopted by the Commission, maintaining the “continuity of the marriage relationship” notwithstanding that they maintained separate residences.

In order to make this determination, the Commission considered a series of factors, drawn from the family law decisions provided by the parties: • Financial Arrangements: Mortgaging/financing, beneficiaries, shared credit cards, joint indebtedness, joint bank account, financial support for each other, shared household expenses, tax returns • Owning Property: real property, sharing telephone • Sexual Relations: timing and frequency, extra marital affairs, sleeping in different beds, show of affection • Socializing: vacationing together, socializing together at functions, communication, presentation to family and friends • Intention to Reconcile: Seeking legal advice and acting on it, separation agreements • Living Arrangements: different residences, reasons for physical separation, sharing rent, house maintenance (at para. 63). [ 17 ] After applying these factors to the evidence, the Commission found that the Caplettes had been living separate and apart for more than a year, and consequently, that Ms.

Caplette was neither a “spouse” under clause 2 (rr) nor a “surviving spouse” under clause 2 (ss): [102] As such, the Appellant has not proven that she was the deceased’s spouse for purposes of

section 2 (rr) as they were residing separate and apart at the date of his death. Since that separation commenced in May 2006, over one year prior to his death, she is also

not his surviving spouse for purposes of

section 2(ss) of the Act. [18] Ms. Caplette’s counsel made two submissions before this Court regarding the Commission’s

interpretation of the two clauses. First,he submitted that the Commission should have given greater effect to the fact that the parties were still married—as opposed to formallyseparated or divorced—at the time of Mr. Caplette’s death. Second, he submitted that where the parties are legally married at the timeof the death greater weight should be given to the possibility of reconciliation as a factor that militates against a finding that the twospouses were living separate and apart. [19] With respect to the first submission, Ms.

Caplette argued that she should have been found to be a “spouse” (and consequently a“surviving spouse”) by virtue of the fact that she was still legally married to the deceased when he died. She relies on other statuteswhich define a “spouse” in terms of legal marital status: under The Family Property Act, S.S. 1997, c. F-6.3, for example, a spouse is“either of two persons who…is legally married to the other” (s. 2(1)). A similar definition exists in The Intestate Succession Act, 1996,S.S. 1996, c. I-13.1, s. 2. Based on these

definitions, Ms. Caplette argues that the Act should be similarly interpreted. [20] The Legislature has, however, taken a different approach in the Act. Being a spouse is not, on its own, sufficient to justify theaward of benefits. One must be a “surviving spouse” as that term is defined, in order to be entitled to benefits. By virtue of the fact that“spouse” is a defined term, it is necessary also to consider that definition. The Commission’s

interpretation of clause 2(rr) does,however, alleviate the seeming harshness of the provision by equating the concept of “residing together” with the existence of maritalconsortium. SGI did not oppose that

interpretation and even if the Commission erred by adopting this

interpretation, this error inured tothe benefit of Ms. Caplette by making it possible for her to prove the requirement of “residing together” in more than one way. [21] Counsel’s second submission was that the Commission should have considered whether there was a possibility of reconciliation inthe period leading up to Mr. Caplette’s death. Counsel submits that the possibility of reconciliation should be a factor militating stronglyagainst a finding that the couple were living separate and apart. As authority for this proposition, counsel cited such authorities asLachman v. Lachman (1970), (ON CA), 12 D.L.R. (3d) 221 (Ont. C.

A) at 224, which held that for the purposes of theDivorce Act, "the fact of physical separation for the requisite time is only presumptive proof of a 'permanent breakdown' of the marriageand the Judge hearing a petition must ascertain whether there exists a possibility of reconciliation". [22] Contrary to Ms. Caplette’s submissions, the Lachman decision and the other cases decided under the Divorce Act do not support hercase. Those decisions are directed to a different issue: whether a petitioning party has proven the status necessary to determineentitlement to divorce.

In such circumstances, the law presumes the continuation of the marriage. There is no such presumptionprevailing under the Act. The

definitions of “spouse” and “surviving spouse” draw a line between those persons who are entitled tobenefits and those who are not. The Legislature was entitled to draw this line wherever it wanted. Put differently, it was open to theLegislature to require a spouse seeking death benefits to prove that he or she had either been residing together with the deceased or hadbeen living separate and apart from the deceased for less than a year. [23] Additionally, giving effect to Ms.

Caplette’s submission that a mere possibility of reconciliation militates strongly against a findingthat parties are living separate and apart would have the effect of elevating this factor to the status of a determinative factor. Nothing inthe list of factors cited by the Commission suggests that special weight should be given to the mere possibility of reconciliation. This isbut one of many factors that the Commission should consider in determining whether an applicant meets the definition of “survivingspouse.” [24] In

summary, the Commission did not err in its

interpretation of the controlling provisions and did not err in considering that it is theintention to reconcile rather than the mere possibility of reconciliation that will affect the determination of whether the parties wereliving separate and apart. V. Issue #3: Did the Commission err in law by placing the onus on Ms. Caplette to prove that she is a “survivingspouse”? [25] Relying on Peepeetch v. Saskatchewan Government Insurance, 2006 SKQB 423 at para. 46, 286 Sask. R. 41 and its own decisionin D.N. v. Saskatchewan Government Insurance, 2008 SKAIA 47 , 2008 SKAIA 047 (aff’d sub nom McAdam v.

SaskatchewanGovernment Insurance, 2010 SKCA 139), the Commission concluded that the onus of proof falls on the claimant who seeks deathbenefits (see: paras. 38-39). Ms. Caplette challenges this conclusion on two bases.

[ 26 ] First, she asks the Court to take a similar approach to that followed in Job v. Saskatchewan Government Insurance , 2004 SKCA 164 , 257 Sask. R. 85, which placed the onus on the insurer to prove that the applicant was not the spouse of the deceased insured. Job is, however, distinguishable, as it dealt with the termination of benefits after entitlement had been proven. Job cannot be taken as authority for the proposition that SGI bears the onus of proving that an applicant who claims to have been the spouse of a deceased insured is not entitled to benefits. [ 27 ] Second, and in the alternative, Ms.

Caplette submits that once she established her status as a legal spouse the evidential burden should then have shifted to SGI to establish that the parties were living separate and apart. This argument is simply the prior argument restated. While courts have recognized the concept of a shifting evidential burden in some circumstances, nothing in Ms. Caplette’s submissions convinces this Court that the existence of a legal marriage alone is evidence sufficiently strong to shift the burden to SGI in claims for spousal death benefits under the Act . VI.

Issue # 4: Did the Commission err in law by failing to apply the rules of evidence with respect to hearsay evidence? [ 28 ] Ms. Caplette submits that the hearsay statements made by some of the witnesses, in particular that of Mr. Caplette's brother, did not meet the tests of reliability and necessity. Specifically, Ms. Caplette submitted that the brother’s testimony-in-chief as to his opinion, regarding various matters, and his conversations with Mr. Caplette should have been found to be inadmissible. [ 29 ] SGI called the deceased’s brother as one of its witnesses. He believed that the parties separated when Ms.

Caplette moved to Alberta in May 2006 and that the marriage had ended “but for the formalities.” The Commission summarized the brother’s evidence in these paragraphs: The Deceased’s Brother’s Evidence : [19] The deceased’s brother testified that he and his brother were close. He said that from his perspective, all indications were that his brother and the Appellant separated when she and the girls moved to Alberta in May, 2006 .

He said that shortly after the Appellant left Saskatchewan, he offered to call a contact in Alberta to see if there might be work for the deceased in Alberta but the deceased said that the Appellant did not want him to live with her there; he said if that changed, he would ask his brother to make the call. [20] The brother also said that in September, 2006, he gave the deceased the name of his lawyer in response to his wanting to consult regarding a divorce.

The brother said that the deceased told him he had consulted counsel at about that time but was told he would need to wait. [21] Finally, the brother indicated that he believed the deceased had established a relationship with another woman . [22] For all of these reasons, he believed that the marriage between his brother and the Appellant had ended but for the formalities . [Emphasis added.] [ 30 ] The Commission’s reasons also make reference to evidence provided by the deceased’s brother regarding the duration of the Caplettes’ stay at his cabin: [74] In August 2006, the Appellant again visited Saskatchewan and stayed with the deceased at his brother’s cabin.

There is dispute among the witnesses as to the duration of this visit. The Appellant says the visit lasted over two weeks, while other witnesses said it lasted only one weekend . [75] There was a ring of truth to the deceased’s brother’s evidence that he recalls they left after a weekend as he had to go lock up and check the cabin . It is also supported by the deceased’s eldest daughter’s evidence that the deceased called her from Saskatoon on Monday evening . [76] Most important, however, his evidence is supported by evidence from the Appellant.

When discussing her bank statement, she drew our attention to a purchase made at Provost Market on August 15, 2006. She said that this purchase showed the route she and her daughters took when traveling back and forth from Alberta.

When asked if she came more than once in August 2006, she said she would have to check her calendar but would assume so as they “traveled back and forth all the time.” This is at odds with her evidence, just a few minutes later, that she arrived on August 9, 2006 and stayed for two or two and a half weeks. [77] In any event, we are not satisfied that the Appellant and her children stayed with the deceased at the holiday cabin for two weeks in August 2006 .

We think the visit was more likely of only a few days duration. [Emphasis added] [ 31 ] The Act makes it clear that, to a certain extent at least, the rules of evidence do not apply to hearings before the Commission.

Section 196.3 of the Act provides as follows: s. 196.3(1) In the case of a hearing or review before the appeal commission, the appeal commission may receive any evidence that, in the opinion of the appeal commission, is relevant to the matter being heard or reviewed.

(2) The appeal commission is not bound by rules of law concerning evidence. [32] In Saskatchewan Government Insurance v. Massier, 2008 SKCA 154 at para. 3, 314 Sask. R. 272, this Court considered whetherthe Commission's reliance on hearsay evidence, when combined with its disregard for other evidence, offended the principles establishedin Ares v. Venner, (SCC), [1970] S.C.R. 608. Sherstobitoff J.A., for the Court, noted that the Commission in that casehad acknowledged the hearsay in certain documentary evidence, but had given the hearsay evidence little weight.

The Court held thatthe Commission’s decision did not offend Ares and that the documents were admissible under s. 50 of The Evidence Act, S.S. 2006, c. E-11.2. The Court in Massier wrote that its conclusion was reinforced by

section 196.3 of the Act. [33] In Murray v. Saskatchewan Veterinary Medical Assn., 2011 SKCA 1, [2011] 2 W.W.R. 503, this Court considered a comparableprovision to

section 196.3 of the Act. Subsection 22(4) of The Veterinarians Act, 1987, S.S. 1986-87-88, c. V-5.1 reads as follows: s. 22(4) The discipline committee may accept any evidence that it considers appropriate and is not bound by rules of law concerningevidence. Lane J.A., writing for the Court, described the effect of a provision that a tribunal is not bound by the rules of evidence: [26] Section 22(4) grants to the Committee the power to accept any evidence it considers appropriate and further provides is not boundby the rules of laws concerning evidence.

Thus, the Committee has the power to admit hearsay evidence and does not therefore need todetermine whether the hearsay evidence is reliable as a precondition to admitting it. The weight and probative value given by theCommittee to the admitted evidence may ultimately lead to other issues of procedural fairness. As Régimbald stated in CanadianAdministrative Law, 1st ed. (Markham, Ontario: LexisNexis, 2008) at p. 265-66: Tribunals that are not subject to the common law rules of evidence may rely on hearsay evidence even if it deprives the other party ofany possibility to cross-examine or challenge the witness.

The hearsay evidence must, however, be relevant and the decision maker mustgive it appropriate weight given the circumstances. Nevertheless, it may be an error for the decision maker to base its decision solely onhearsay evidence, unless the decision maker has valid reasons for doing so. The tribunal will also err if its decision is based oninsufficient or no evidence, or on irrelevant considerations. In such circumstances, the decision may be set aside.

However, at this initial stage, the Committee has the power to admit evidence which it may ultimately find to be unreliable.... [34] SGI directs the Court’s attention to David J. Mullan, Administrative Law Cases, Text, and Materials, 5th ed. (Toronto: EmondMontgomery Publications, 2003) at 453. After making the point that generally the rules of evidence before administrative tribunals aregoverned by the principles of natural justice, the author indicates it is unlikely that the mere admission of hearsay evidence will lead to abreach of natural justice.

The author goes on to say “to deny admission of hearsay evidence may itself be a problem in some contexts”(at 454). Thus, the mere hearing of hearsay evidence will not breach the principles of natural justice nor offend the governinglegislation. [35] In the instant case, early in the hearing before the Commission, counsel for Ms. Caplette raised the question of the admissibility ofthe hearsay statements of SGI’s witnesses. Similarly, SGI objected to some of Ms. Caplette’s testimony as constituting hearsay.

TheChair of the Commission indicated that its procedures, as an administrative tribunal, were more relaxed than they would be before acourt, but that it fully understood its obligation to consider “reliable” evidence only.

In support of this statement, it cited its decision inMcAdam—another case dealing with death benefits for a surviving spouse in which the Commission found the evidence of relatives andfriends of the alleged spouse to be unreliable (Transcript, p. 14). [36] While the deceased’s brother gave his opinion regarding the state of the Caplettes’ union, the Commission reviewed all of therelevant factors to determine if the couple were living separate and apart.

As to the length of time the parties spent together in thesummer of 2006, the Commission determined that the brother’s evidence had the “ring of truth,” and then considered it in conjunctionwith other evidence before concluding independently that the parties had spent minimal time together. The Commission committed noerror of law in receiving the brother’s evidence or in treating it as they did. I would not give effect to this ground of appeal. VII. Issue #5: Did the Commission err in law by concluding that Ms.

Caplette was living separate and apart from herhusband at all times from May 2006? [37] After an extensive review of the evidence, the Commission gave its reasons for concluding that the Caplettes had been livingseparate and apart from May 2006: [99] … • The Appellant and her husband administered separate finances and he did not provide regularly for the support of his family. • They did not share property or information regarding same.

Instead, the deceased quit his employment and moved withoutadvising his wife and she rented accommodation, albeit she says at his request, without mentioning or accommodating their supposed

intention that he would join them there. • The facts of occasional sexual relations and of his possible infidelity are not conclusive as to the nature of their relationship. • The parties’ infrequent visits and unexplained failure to spend time together when the opportunity was easily available are not indicative of a committed married couple. • The Appellant says that there was no intention or fact of being separated and therefore there was nothing to reconcile.

However, the deceased’s emails show he believed that the marital relationship had been ended, though he clearly wanted to reconcile for a period of time.

There is no evidence that he was encouraged in this by the Appellant and there is evidence, particularly in his instructing counsel to commence divorce proceedings, that he had either lost his desire to reconcile or lost hope that it might happen. [100] These incidents, circumstances and communications show that the Appellant and the deceased had a troubled marriage, that she decided to move to Alberta with the children either as an end to their marriage or, at minimum, as a sort of trial separation.

It may well be that they had agreed to see how things were going and consider reconciling after her circumstances were stabilized but we are satisfied that until that time, they were separated and living separate and apart and had done so since May 2006. [101] There is no evidence of reconciliation between the parties after their separation. Their time together in the summer of 2006, even if of over two weeks duration as the Appellant testified, does not establish reconciliation or an attempt at one. There is no indication that anything changed in their relationship as a result of their time together.

In fact, it appears that their frequency of contact and communication after August 2006 was decreased. [102] As such, the Appellant has not proven that she was the deceased’s spouse for purposes of

section 2 (rr) as they were residing separate and apart at the date of his death. Since that separation commenced in May 2006, over one year prior to his death, she is also not his surviving spouse for purposes of

section 2 (ss) of the Act . [ 38 ] As I have previously indicated, this Court has held that a finding of fact may be grounded in an error of law, if the finding: (

i) is based on no evidence; (ii) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (iii) is based on an irrational inference of fact (see: Murphy , supra and P.S.S. Professional Salon Services Inc . v. Saskatchewan (Human Rights Commission) , 2007 SKCA 149 , [2008] 5 W.W.R. 440, leave to appeal to S.C.C. refused, [2008] 2 S.C.R. xi). Counsel for Ms.

Caplette submits that the Commission disregarded relevant evidence or drew irrational inferences of fact. [ 39 ] After reviewing counsel’s submissions against the backdrop of the Commission’s decision and the evidence, there is no basis upon which to accept counsel’s submissions. The Commission made clear findings against Ms. Caplette. Any challenges to those findings are quite simply challenges to findings of fact and, therefore, are beyond the purview of a review that is confined to questions of law under

section 194 of the Act . VIII. Conclusion [ 40 ] Since a large part of SGI’s position concerned the application of Dunsmuir , which necessitated a response from Ms. Caplette, it seems appropriate to award the costs of this appeal in favour of SGI on Column 1, if requested. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of June, A.D. 2011. ___ “Jackson J.A.” _____________________ Jackson J.A. I concur ___ “Richards J.A.” ____________________ Richards J.A.

I concur ___ “Ottenbreit J.A.” ___________________ Ottenbreit J.A.