Docket: 1917 John Acton Appellant - v. -, 2012 SKCA 127

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 127 Date: 2012-12-20 Between: Docket: 1917 John Acton Appellant - and - Rural Municipality of Britannia No. 502 and Ron Handel Farm Ltd. Respondents Coram: Klebuc C.J.S., Gerwing & Jackson JJ.A. Counsel: Gary Zabos, Q.C. and Angela Giroux for the Appellant, John Acton Reginald Watson, Q.C. and Michael Morris for the Respondent, Rural Municipality of Britannia No. 502 Shannon Metivier for the Respondent, Ron Handel Farm Ltd.

Appeal: From: 2010 SKQB 97 Heard: June 20, 2011 Disposition: Appeal allowed Written Reasons: December 20, 2012 By: The Honourable Chief Justice Klebuc In Concurrence: The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson Klebuc C.J.S. I.

Introduction [ 1 ] John Acton, the appellant, appeals from a decision of the Queen’s Bench in Chambers in which the learned Chambers judge declared that the appellant is not entitled to maintain a tort action against the respondents, the Rural Municipality of Britannia No. 502 and Ron Handel Farm Ltd. pursuant to s. 103(2) of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “ AAIA ” or the “ Act ”) to recover certain losses (see: 2010 SKQB 97 ). [ 2 ] For the reasons hereinafter set forth, I would grant the appeal with costs in the usual manner. II.

Background [ 3 ] The appellant was involved in a single vehicle rollover accident that occurred on May 30, 2004, near Lloydminster, Saskatchewan. The accident occurred on a road maintained by the respondent, the R.M. of Britannia, which had also engaged the services of the respondent, Ron Handel Farm Ltd., to carry out certain work on the road. [ 4 ] The appellant suffered serious injuries including a spinal fracture at C7-T1 and, as a result, has been left in a C6 spastic quadriplegic condition with a neurogenic bowel and bladder.

He is unable to be gainfully employed and requires rehabilitation services, living assistance and other care items in order to enjoy life to the degree reasonably possible given the permanent nature of his injuries. [ 5 ] The appellant is insured as a no-fault insurance beneficiary through Saskatchewan Government Insurance (the “Insurer”). Although he receives benefits pursuant to the modified no-fault provisions of the AAIA , he alleges that those benefits do not fully cover his actual costs for rehabilitation, living assistance and other cost-of-care items he reasonably requires.

Consequently, he launched the within tort action pursuant to ss. 103(2) , 103(1)(a)(

i) and 103(1)(a)(iii) of the AAIA to recover damages for: (

a) the gap between the amount the Insurer determines and contributes towards his rehabilitation and living assistance costs pursuant to Divisions 3 and 7 of the AAIA and his actual costs for such items and other care items reasonably required for his injuries that would be recoverable at common law—but not recoverable from the Insurer; and (

b) the gap between the income replacement benefits determined and paid by the Insurer pursuant to Division 4 of the AAIA and his actual yearly income loss. [ 6 ] The respondents denied any negligence on their part and maintained that the claims advanced in the appellant’s action are not permitted pursuant to ss. 103(2), 103(1)(a)(

i) and 103(1)(a)(iii) and, therefore, his action is barred by s. 40.1 of the AAIA and should be struck. [ 7 ] Given the position taken by the respondents, the appellant applied under Rules 188 and 189 of The Queen’s Bench Rules for rulings on five questions designed to determine whether he had a cause of action pursuant to ss. 103(1)(a)(i), 103(1)(a)(iii) and 103(2) of the AAIA , assuming liability in negligence is established. To facilitate the Rule 188 application, the parties entered into an agreement regarding the material facts. The resulting Agreed Statement is contained in Appendix A to these reasons. [ 8 ] The five questions, as stated by the parties, are as follows:

(1) Can a claim for “economic loss” be pursued under s. 103(1)(a)(iii) of the Act where the benefits paid by the Insurer pursuant to Division 3 and Division 7 do not and will not exceed the combined maximum benefits of $5,000,000, as prescribed in s. 112(3) of the Act ?

(2) Can a claim for “economic loss” be pursued under s. 103(1)(a)(iii) of the Act where the living assistance benefits paid by the Insurer pursuant Division 7 and Grid A of Appendix D, does not exceed the weekly maximum of $708.00 per week?

(3) Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1)(a)(iii), be maintained for: (

a) The difference between the amount that the Plaintiff claims would be awarded to him as damages for compensation for the cost or value of the assistance that the Plaintiff has required and will in the future require to perform or obtain assistance to perform the activities of daily living that he was able to do and did prior to the injury and which are activities included in Grid A of the Regulations , and the amount the Insurer has determined he is entitled to be paid as a living assistance allowance under Grid A of the Regulations ? (

b) The amount the plaintiff claims would be awarded to him as damages for compensation for the cost or value of the assistance that the Plaintiff has required and will in the future require to perform or obtain assistance to perform the activities of daily living that he was able to do and did prior to the injury and which are not activities included in Grid A of the Regulations ?

(4) Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1)(a)(iii) be maintained for the following costs hereinbefore described: (

a) additional housing costs for items beyond what the Insurer considered as necessary or advisable under Division 3? (

b) replacement labour costs that would not have been incurred but for the accident? (

c) additional house maintenance costs? (

d) additional travel costs? (

e) additional vehicle costs? (

f) additional costs for recreational and exercise equipment?

(5) Assuming liability is established, can a claim for economic loss pursuant to s. 103(1) (

a) of the Act be maintained for an income loss claim based on the cost of substitute labour, equipment and fuel costs incurred in the operation of the Plaintiff’s farm (subject to adjustments and calculations required to calculate economic loss in the way of income loss pursuant to s. 103 of the Act )? [ 9 ] As it will be seen from these questions, each requires that the Court interpret the AAIA . (In some cases, reference must be made to The Personal Injury Benefits Regulations , R.R.S., c.

A-35, Reg. 3, but the particular provisions will be referred to in context.) Of immediate relevance are the following sections of the AAIA : 40.1 Notwithstanding any other Act or law but subject to this Part and

Part VIII : (

a) no person has any right of action respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force; and (

b) no action or proceeding lies or may be commenced in any court respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force; . . . 103(1) In this Part: (a) “economic loss” means the following losses resulting from bodily injury caused by a motor vehicle that arise out of an accident: (

i) in the case of an insured who is entitled to a benefit pursuant to Division 4: (

A) any past or future income loss suffered by the insured in excess of the yearly employment income attributable to the insured pursuant to Division 4 ; or (

B) if the insured receives a benefit pursuant to

section 117, 118, 119 or 120, any past or future income loss suffered by the insured in excess of the benefit provided ; . . . (iii) in the case of an insured who is entitled to any benefit pursuant to Divisions 3 and 7, any past and future loss suffered by the insured in excess of the benefits to which the insured is entitled ; . . . ( 2) Notwithstanding

section 40.1 of this Act , but subject to

section 44 of The Workers’ Compensation Act, 1979 , an action may be brought in the Court of Queen’s Bench to recover any damages of the insured or of the insured’s surviving spouse or dependant for economic losses . . . . Rehabilitation 112(1) In this section, “rehabilitation” includes any or all of the following measures, programs and treatments that the insurer considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen the insured’s disability caused by the accident and to

facilitate the insured’s recovery from the accident : (

a) physical and acquired brain injury programs and treatment; (

b) occupational and vocational training and programs; (

c) alterations to an insured’s residence; (

d) modification or purchase of a motor vehicle for an insured; (

e) purchase of special equipment for an insured; (

f) any additional prescribed measure, program or treatment.

(2) Subject to the regulations, the insurer may take any measure it considers necessary or advisable to contribute to the rehabilitation of an insured , to lessen a disability resulting from bodily injury and to facilitate the insured’s recovery from the accident.

(3) The total combined maximum benefits payable to the insured pursuant to this Division [Division 3 – rehabilitation] and Division 7 is $5,000,000 for each accident in which a person suffers bodily injury . [emphasis added] The appellant agrees that if his action does not meet the requirements of ss. 103(1) and 103(2), it is barred by s. 40.1. III. Decision of the Chambers Judge [ 10 ] With respect to Question 1, the Chambers judge ruled that ss. 103(1) (a)(iii) and 103(2) allow an insured to bring a tort action for the purpose of recovering damages for an “economic loss” if the following requirements are met: (

a) the claim for damages consists solely of the cost of benefits and other items the Insurer is required to provide pursuant to Divisions 3 and 7 of the AAIA ; and (

b) the damages claimed are for costs incurred for items covered by Divisions 3 and 7, to the extent they exceed the maximum potential liability of the Insurer, currently being the $5,000,000 cap per accident provided for in s. 112(3) (the “s. 112(3) Liability Cap”).

Succinctly stated, the Chambers judge ruled that an insured can only sue to recover damages for the cost of items which otherwise would have been recoverable from the Insurer pursuant to Divisions 3 and 7 but for the s. 112(3) Liability Cap. [ 11 ] The parties agreed that the total of past and future benefits paid or payable by the Insurer to the appellant or on his behalf pursuant to Divisions 3 and 7 will never exceed the s. 112(3) Liability Cap. Based on this, the Chambers judge held that the appellant had no cause of action pursuant to ss. 103(2) and 103(1) (a)(iii). [ 12 ] Regarding Questions 2, 3(a), 3(

b) and 4, the Chambers judge held that the claims described therein do not, individually or collectively, comprise an economic loss under s. 103(1)(a)(iii); therefore, a tort action could not be brought pursuant to s. 103(2) for the purpose of recovering damages for those costs. [ 13 ] With respect to Question 5, the Chambers judge held that a claim for loss of self-employment income earned by farming only qualifies as an economic loss recoverable pursuant to ss. 103(1) (a)(i)(

B) and 103(2) if, (

a) the insured was in receipt of benefits pursuant to ss. 117, 118, 119 or 120, and (

b) his self-employment income losses exceeded the maximum amount recoverable pursuant to those sections. [ 14 ] The Chambers judge concluded that the appellant has no cause of action against the respondents pursuant to s. 103(2) based on (

a) the aforementioned rulings on the questions, (

b) the undisputed evidence that the total of the past and future cost for benefits recoverable by the appellant pursuant to Divisions 3 and 7 would not exceed $5,000,000, and (

c) the appellant had not applied for benefits pursuant to s. 117, s. 118, s. 119 or s. 120. IV. Statutory

Interpretation and Preliminary Issue: Whether the Court can and should consider the Review Committee’s Report? i. General Principles of Statutory

Interpretation

[15] Answering the five questions requires the Court to construe ss. 103(1)(a)(iii), 103(1)(a)(i)(

A) and (B), 103(2) and 112(3) of theAAIA, which in turn brings the rules of statutory

interpretation into play. [16] In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, Iacobucci J. articulated what is known as themodern principled approach to statutory

interpretation described in the following paragraph: [21] Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The approach in Rizzo Shoes, in turn, is consistent with s. 10 of The

Interpretation Act, 1995, S.S. 1995, c. I-11.2 and therefore, isapplicable to the AAIA. See: Saskatchewan Government Insurance v. Speir, 2009 SKCA 73, 331 Sask. R. 250, and Cebryk v. Paragon Enterprises

(1984) Ltd., 2010 SKCA 146, 326 D.L.R. (4th) 692. [17] Under Driedger’s modern principled approach, a court’s primary duty is to harmonize the grammatical meaning of the text with theother indicators of legislative intent gleaned from reading the text in its entire context. (See Ruth Sullivan, Sullivan on the Constructionof Statutes, 5th ed. (Markham, Ontario: LexisNexis Canada, 2008) at 24, 42, 45 and Ratzlaff Estate, Re, 2002 SKCA 53, 217 Sask. R.284 at para. 23.) However, reliance on these other indicators is subject to the following constraint: the

interpretation ultimately adoptedmust be one that the words of the text can reasonably bear. This is the plausible meaning rule. (See Sullivan, supra at 163.) Aninterpretation of the text sets up a presumption that this is indeed the

interpretation intended by the legislature. The presumption infavour of ordinary meaning is rebutted by evidence derived from other statutory

interpretation tools that another meaning was intendedor is more appropriate in the circumstances. [18] Ruth Sullivan suggests that the following questions must be considered when interpreting a statutory provision: ● 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 purposesdid it hope 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 ispresumed to respect? (See: Sullivan at p. 3) ii. History of the Present Legislation [19] The no-fault provisions of the AAIA came into force by way of The Automobile Accident Insurance Amendment Act, 1994, S.S.1994, c. 34 (the “1994 Amendment”). Its declared and otherwise obvious purpose was to implement a modified no-fault insurancescheme.

It is considered to be “modified no-fault” because it is designed to provide a person injured in a motor vehicle accident withimmediate access to a broad range of benefits without regard to who was at fault, while preserving the right of an injured insured to bringan action to recover damages for specific economic losses.

The modified no-fault scheme also sought to avoid costly court proceedingsassociated with proving causation and establishing the level of compensation to which an injured insured or third party was entitled. (See: Saskatchewan, Legislative Assembly, Official Report of Debates (Hansard), (18 April 1994) at 1615-1616.) These objectiveswere implemented by way of ss. 102, 103(1) and 103(2) of the 1994 Amendment. [20]

Section 102 of the 1994 Amendment (now s. 40.1) extinguished an injured insured’s common law right to sue to recover non-pecuniary damages and pecuniary damages from the person who negligently caused the insured’s injuries, other than for pecuniarydamages to the extent permitted by s. 103(1) and s. 103(2). These sections in the 1994 Amendment provided: 103(1) In this section, ‘economic loss’ means the following losses resulting from bodily injuries caused by an automobile arising out ofan accident: (

a) in the case of a victim who is entitled to an income replacement benefit, any actual income loss suffered by the victim in excess ofthe maximum yearly insurable earnings calculated pursuant to

section 138; . . . (

c) in the case of a victim who is entitled to any benefit pursuant to Division 7, any actual and reasonable loss suffered by the victim inexcess of the benefits to which the victim is entitled;

. . .

(2) Notwithstanding

section 102 but subject to

section 44 of The Workers’ Compensation Act, 1979 , a victim or dependent may bring an action for damages in the Court of Queen’s Bench to recover any of the victim’s or dependent’s economic losses. [ 21 ]

Section 138 of the 1994 Amendment fixed the maximum yearly insurable income for the purposes of s. 103(1) (

a) at $50,000.00, subject to adjustment in future years, and s. 110(3) (now s. 112(3)) capped the Insurer’s liability for Division 3 and Division 7 costs at $500,000.00. [ 22 ] In 2000, the Lieutenant Governor in Council for the Province appointed the Personal Injury Protection Plan Review Committee (the “Review Committee”) and asked it to conduct a complete review of

Part VIII of the AAIA . This part deals with insurance benefits paid or payable for bodily injuries suffered by an insured in an automobile accident and are described in the AAIA as the Personal Injury Protection Plan.

The Review Committee was also asked to consider the following question: If no-fault benefits should be the focus, should a tort action for damages nevertheless be available to injured persons, and if so, when? [ 23 ] The Review Committee, chaired by Professor Ken Cooper-Stephenson, prepared a comprehensive final report dated December 2000 [Saskatchewan, Personal Injury Protection Plan Review Committee, Final Report (December 2000) (Chair: Ken Cooper- Stephenson)].

In my opinion, the Final Report is a useful extrinsic aid in interpreting the AAIA , but it can be given limited weight for the purposes of answering the questions raised by this Rule 188 application only. [ 24 ] The Final Report confirmed that the right to sue for defined economic losses should not only be retained but enhanced. With respect to the right of an insured to sue for actual income loss pursuant to s. 103(1)(

a) of the 1994 Amendment (now s. 103(1) (a)(i)), the Committee found that the right was, at the time, only available for income losses “in excess” of the maximum insurable income prescribed by AAIA , which was by then $56,855. Thus, a gap in the recovery of lost income existed “because if the injured person was not entitled to an income replacement benefit which reflects actual income loss, he or she may suffer a substantial loss between what was covered by the no-fault income replacement benefit and $56,855 per year” ( Final Report , p. 58).

To eliminate this inequitable gap for those who earned less than the $56,885 per year, the Review Committee recommended that the right to sue for lost income earnings be extended to cover all loss of earnings in excess of no-fault benefits (except for the first seven days of earnings lost). This was accomplished by removing the requirement that an insured’s income must exceed the insured amount before the insured may sue the wrongdoer to recover damages for his or her loss of earned income.

In other words, the Review Committee recommended that the “gap” be closed. [ 25 ] The Review Committee based its recommendation on the following: • Limiting the tort action for income loss in these cases restricts the opportunity for the not at-fault injured person (or an injured person only partially to blame) to seek restoration of his or her pre-accident position in life. • The action offers to the injured person access to the courts to make an individualized determination of income loss. • The action provides protection for the high-income earner to recover losses not available under the Personal Injury Protection Plan. • The availability of the right of action put some pressure on SGI to more carefully assess no-fault benefits in difficult cases, such as those concerning farmers and self-employed persons. • Where homemakers are concerned, the action gives the opportunity for a full and meaningful assessment at common law of their loss of homemaking capacity as well as their loss of employment income for work outside the home.

Similarly with respect to youth and students, a tort action will assess the full extent of their loss based on the probabilities and possibilities of their future success in relevant employment situations. • The unquantifiable deterrent effect of tort actions remains, and those that might be deterred from acting negligently will be aware of the possibility of being sued for damages, whether they are third parties or persons who are carrying only minimum liability insurance • The action retains the element of personal responsibility and logical consequences.

Although members of the motoring public collectively absorb the cost of basic income protection for injured persons, if a tort action is allowed against at-fault persons or institutions, they are required to accept some of the consequences of their negligence. • Where third parties are involved, they are often in a position to absorb or spread the loss…. ( Final Report at pp. 61-62). [ 26 ] No changes were recommended by the Review Committee regarding the right under s. 103(1) (a)(iii) to sue for damages equal to the gap between actual rehabilitation and living assistance costs incurred by the insured and the benefits receivable under the AAIA .

This different treatment is attributable to the Review Committee being satisfied that a tort action was already available for other economic

losses above the level of benefits to which an insured is entitled to recover from the Insurer. At p. 61 of the Final Report , it stated:

Section 103 does not permit the injured person to recover damages in tort for this loss unless the income would rise above $56,855. However, with respect to all other types of economic loss, the tort action is for any proved loss above the level of the benefits to which the injured person is entitled. [emphasis in original] [ 27 ] Following receipt of the Review Committee’s Final Report , the Legislature enacted The Automobile Accident Insurance Amendment Act, 2002 , S.S. 2002, c. 44, s. 30(1) (the “ 2002 Amendment ”) which, inter alia , replaced ss. 103(1)(

a) and 103(

b) of the 1994 Amendment with ss. 103(1) (a)(i)(A), 103(1)(a)(i)(

B) and 103(1)(a)(iii) as they presently read. It also provided an insured with the right to choose between no-fault coverage and tort based coverage, a factor of little relevance in this appeal. [ 28 ] Section 103(1)(a)(i)(

A) incorporated the recommendation of the Review Committee by enabling an insured to sue to recover damages for “any past or future income loss suffered ... in excess of the yearly employment income attributable to the insured pursuant to Division 4”. Division 4 in turn requires the Insurer to calculate the insured’s yearly employment income based on what the insured earned or would have earned but for the injuries suffered in an accident.

Consequently, an insured is entitled to sue to recover the “gap” between his actual loss and the amount recovered or recoverable from the Insurer without regard to the cap which limited the Insurer’s obligation to pay income replacement benefits. [ 29 ] Section 103(1)(a)(iii) of the 2002 AAIA remained essentially the same as s. 103(1)(

b) of the 1994 Amendment because no change was required. iii. Use of the Final Report in Interpreting the AAIA in this Appeal [ 30 ] The Final Report is a piece of extrinsic evidence, which, as can be seen from the above section, seemed to have some impact on the legislative reforms of 2002. Extrinsic evidence can be used as part of the statutory

interpretation process. The manner in which extrinsic evidence may be used in conjunction with the modern principled approach is outlined by Ruth Sullivan in Sullivan on the Construction of Statutes , 5th ed., (Markham, Ont.: LexisNexis Canada Inc., 2008) at p. 576: It is sometimes said that the courts should not look to extrinsic materials, even though the materials otherwise would be admissible, unless the legislation to be interpreted is ambiguous. Arguably, this constraint is pointless and misleading and should be abandoned. It is a vestige of the plain meaning rule. To say that a provision is not ambiguous, that its meaning is clear or “plain”, is a conclusion reached at the end of

interpretation. It is a judgment that can appropriately be made only in light of all the available evidence of legislative meaning and intent. The issue, then, is whether the assistance afforded by extrinsic materials — as legal context, as evidence of external context, as evidence of legislative intent, or as authoritative opinion evidence — should be included in the initial work of

interpretation. It is hard to see why it should be excluded. [Footnote omitted.] [ 31 ] The question that must be decided in each case is how much weight extrinsic evidence should be given in the statutory

interpretation process. [ 32 ] In this case, neither party brought the Final Report to the attention of the Chambers judge or this Court in written or oral submissions. After the hearing, this Court became aware of the Final Report and asked the parties for subsequent submissions as to whether it should be considered and what impact it may have in the resolution of the issues in dispute. All parties submitted additional briefs on the matter. [1] [ 33 ] It was common ground between the parties that the Final Report can be considered as part of the statutory

interpretation process. However, the parties differed on how much weight should be given to the Final Report . [ 34 ] The appellant argued that considerable weight should be given to the Final Report for three reasons. First, the Review Committee was established and given its mandate by the 1994 Amendments .

Second, the Minister who sponsored the 2002 Amendments mentioned the Final Report in his remarks in the legislature, which suggests that heavy reliance was placed on the Review Committee’s work and the Final Report in determining how the law should be amended. (See Saskatchewan, Legislative Assembly, Official Report of Debates (Hansard) , (7 June 2002), online: http://docs.legassembly.sk.ca/legdocs/Legislative%20Assembly/Hansard/24L3S/020607Hansard.pdf at 1894-1897.) Third, the Review Committee recommended an increased role for tort law in the no-fault scheme.

[ 35 ] The respondents acknowledged that the Final Report may be considered, but argued that it should be given very little weight. They offered several reasons to support this point. First, the comments made by the Minister in the legislature about the Final Report were minimal and do not indicate the Final Report’s reasoning was adopted in its entirety by the legislature. Second, the Final Report offers general criticisms only and does not address the specific issues in this case. Third, it is unnecessary in this situation to use legislative history to interpret the AAIA . [ 36 ] I agree with the parties that the Final Report can be considered as part of the statutory

interpretation process. Having settled that, the question of how much weight this report should be given must be considered. [ 37 ] The fact that the Final Report was considered by the government as part of the legislative drafting process, and mentioned as a source of some of the changes to the legislation in Hansard by the sponsoring minister, increases the weight the Final Report should be given. [ 38 ] However, for Questions 1-4, the Final Report does not offer much direct insight into legislative intent. This lessens the weight the Report should be given.

The general theme of the Final Report is about expanding the right to sue in tort and giving injured parties access to more benefits supports answering “yes” to all questions. This theme is also present in the comments made by the sponsoring minister in the legislature. Because of this, it is certainly worthwhile to consider the Final Report and the references to the Final Report in Hansard. Nonetheless, grounding an

interpretation in general themes expressed in a Final Report and subsequently adopted by the legislature places too much weight on this external evidence. The Final Report should be considered, along with the comments made in the legislature, but the general nature of the evidence weakens the clarity it can provide on the issue of legislative intent; thus lessening the weight that should be given to this evidence.

The fact that the legislature did not adopt all the recommendations of the Final Report , nor did it explicitly adopt the reasoning in the Final Report also lessens the weight that this evidence should be given. [ 39 ] While the Review Committee states that “entitled” in s. 103(1) (a)(iii) refers to benefits the victim is actually receiving, this is merely a side note, not a main finding of the Final Report ; a side note that was not mentioned in the Hansard record.

Thus, while interesting to note, such a comment cannot be given much weight. [ 40 ] Since the Final Report specifically considers the definition of income loss and provides recommendations on this issue that the legislature adopted, more weight can be given to the Final Report in interpreting this portion of the statute. While the Final Report does not explicitly address the issue raised by Question 5, the issues discussed in the Final Report about the ability to sue for income loss are closely related to the issues raised by this question.

Consequently, with respect to this question, more weight can be given to the Final Report than for the other questions. [ 41 ] Thus, while the Final Report can be admitted as extrinsic evidence, it should be given little weight with regard to Questions 1-4. With respect to Question 5, the Final Report can be given slightly more weight, but should still not be considered sufficient to ground a statutory

interpretation argument. This is consistent with Pierre-André Côté’s instruction in The

Interpretation of Legislation in Canada 4th ed. (Toronto: Thomson Reuters Canada, 2011) at pages 465-467, where he writes that the best use of extrinsic evidence, like the Final Report , is as supporting evidence for a statutory

interpretation grounded in more traditional arguments, such as textual analysis. [ 42 ] In conclusion, I find that the Final Report should be given minimal weight with respect to Questions 1-4 only. The Final Report should be given more weight when considering Question 5, but it should still be regarded with caution. The Final Report serves best to confirm an

interpretation that I find to be apparent by construing the words of the legislation alone. V. Analysis [ 43 ] For ease of reference the five questions are repeated in Appendix B. Each of these questions raises a question of law that is reviewable on the standard of review of correctness (see: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235). [ 44 ] This Court must determine whether the Chambers judge correctly determined the points of law raised in the five questions, to the extent they were addressable in the absence of a full factual context.

The first four questions are intended to address whether ss. 103(1) (a)(iii), 103(2), and 112(3), Divisions 3 and 7 of the AAIA and the Regulations permit an injured insured to recover from the person who negligently caused his or her bodily injuries (the “Tortfeasor”), all or part of the reasonable costs incurred for rehabilitation, living assistance and other cost-of-care items related to his injuries which exceed the amount recoverable from the Insurer. The remaining

question essentially involves the determination of whether ss. 103(1) (a)(i)(A), 103(1)(a)(i)(B), 103(2) and Division 4 of the AAIA entitle an injured insured to sue the Tortfeasor for damages equal to his or her loss of earnings income, that exceeds the amount recoverable from the Insurer pursuant to Division 4. [ 45 ] Question 1 is of fundamental importance for if the answer to it is “no”, as the Chambers judge found it to be, the questions related to the recovery of rehabilitation and living assistance costs are essentially moot. If the answer to Question 1 is “yes”, then Questions 2, 3(a), 3(

b) and 4 warrant further consideration. [ 46 ] That said, I turn to the first question. A. Question 1 : Can a claim for “economic loss” be pursued under s. 103(1)(a)(iii) of the Act where the benefits paid by the Insurer pursuant to Division 3 and Division 7 do not and will not exceed the combined maximum benefits of $5,000,000 prescribed in s. 112(3) of the Act ? [ 47 ] The Chambers judge held that an “economic loss” claim under s. 103(1) (a)(iii) is limited to past and future losses incurred or to be incurred by an insured which exceed the s. 112(3) Liability Cap of $5,000,000.

Thus, an insured is only entitled to bring an action against the Tortfeasor to recover damages for economic losses once the total cost of the benefits paid to or on behalf of the insured under Divisions 3 and 7 of the AAIA exceeds $5,000,000. [ 48 ] The appellant submits the Chambers judge erred by confusing the concept of limiting the total liability of the Insurer with what constitutes “entitled” or “entitlement” of an insured under s. 103(1) (a)(iii).

He argues that s. 112(3) limits the total potential liability of the Insurer only on an individual and global basis by capping its maximum exposure to $5,000,000 for each accident in which an insured suffers a bodily injury.

According to this argument, s. 112(3) is not intended to limit the nature of the insured’s rights pursuant to s. 103(1) (a)(iii). [ 49 ] With respect to s. 103(1) (a)(iii), the appellant posits that “entitled”, as used in the phrase “in excess of the benefits to which the insured is entitled”, means the specific amount the insured is entitled to receive from the Insurer pursuant to Divisions 3 and 7, and not a hypothetical entitlement of $5,000,000 designed to limit the Insurer’s exposure. Furthermore, he maintains the Chambers judge’s

interpretation of the aforementioned sections burdens him and virtually all other injured insureds with rehabilitation, living assistance and other reasonable costs of care which are not recoverable pursuant to Divisions 3 and 7, while relieving the Tortfeasor of any financial responsibility for the injuries he or she has caused. That result, in the appellant’s view, is inequitable and not harmonious with the modified no fault provisions of the AAIA , particularly when the insured has suffered a catastrophic injury. [ 50 ] The respondents’ position is that the

interpretation of s. 103(1)(a)(iii) and s. 112(3) by the Chambers judge is consistent with the overarching goal of the no-fault provisions of the AAIA , and the appellant’s

interpretation thereof would undermine the efficacy of those provisions by, inter alia , prompting a flood of litigation. Furthermore, it would make the tort option pointless because the potential recovery is the same under the no-fault option. [ 51 ] With the views of the Chambers judge and the parties in mind, I turn to the meaning of the phrase “in excess of the benefits to which the insured is entitled”, starting with the meaning ascribed to “entitled” and “entitlement” by the following dictionaries: Daphne A.

Dukelow, The Dictionary of Canadian Law , 4th ed. (Toronto: Carswell, 2011) at p. 433: “Entitled”— “Clearly qualified; meeting all requirements;” Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases , 7th ed., vol. 1 (London: Sweet & Maxwell, 2006) at p. 856: “The word ‘entitled’ does not of itself import a distinction between legal and equitable interests. It connotes simply an enforceable right to the relevant income.” Brian A. Garner, A Dictionary of Modern Legal Usage , 2nd ed. (New York: Oxford University Press at p. 942 “Is entitled to. — This is the wording for expressing an entitlement.

It means ‘has a right to.’ E.g. “The guardian ad litem shall [read is entitled to ] be reimbursed for expenses reasonably incurred.” [emphasis in original]

[52] The Court is confronted by two possible meanings to be attributed to the word “entitled”: (

i) the maximum entitlement as fixed bythe legislature; and (ii) the actual entitlement as fixed by the Insurer, according to its

interpretation of loss. When an insured receivesless than the maximum entitlement, it is a strained

interpretation to say that the insured was nonetheless “entitled” to the maximum whenit was not received. An insured is entitled only to the amount that he or she actually receives. Thus, on a plain reading of s. 103(1)(a)(iii), I am satisfied that the phrase “benefits to which the insured is entitled” means the benefits available under Divisions 3 and 7, whichthe insured has a right to collect from the Insurer, and not a hypothetical maximum entitlement unrelated to the bodily injuries sufferedby the insured. [53] Any other

interpretation of s. 103(1)(a)(iii) would be inconsistent with the general objective of the AAIA and the

interpretation ofthose objectives by the Review Committee. The respondents’

interpretation would result in an injured insured having no practical right tosue the Tortfeasor for damages equal to the gap between the reasonable cost incurred by the insured for rehabilitation and livingassistance items, and the lesser amounts recoverable from the Insurer until the Insurer has paid out $5,000,000 for rehabilitation andliving assistance benefits. Consequently, as argued by the appellant, many insureds, including those who suffered a catastrophic injuryakin to the one suffered by him, would have no remedy for their significant out-of-pocket costs. However, as discussed later, s.103(1)(a)(i)(

A) at the same time entitles an injured insured to sue for damages equal to the gap between the insured’s loss of earnedincome and the amount recoverable from SGI, whether the loss is $100 or $1,000,000. In my opinion, this uneven result is inconsistentwith the principles of equity and fairness expressed in the global intention of the Legislature by its enactment of the 2002 amendments. [54] I reject the respondents’ submission that the Legislature intended to subject the right to sue for damages pursuant to s. 103(1)(a)(iii)and s. 103(2) to the s. 112(3) Liability Cap for several reasons. First and foremost, their submission requires an

interpretation of s.112(3) that is inconsistent with the meaning and purpose generally assigned to maximum liability provisions in the context of insurancelaw, namely the protection of an insurer from unlimited and unfunded costs which might arise when an insured is catastrophicallyinjured. [55] As noted in Amos v. Insurance Corp. of British Columbia, (SCC), [1995] 3 S.C.R. 405 at p. 413, “common lawterms and concepts are presumed to retain their common law meaning” unless the legislation provides an alternative definition or isintended to modify an existing judicial

interpretation of a phrase, term or word[2]. The no-fault character of an insurance scheme doesnot change the manner in which the scheme is to be interpreted. If the Legislature intended to use the s. 112(3) Liability Cap for thepurpose suggested by the respondents, it would have clearly stated so in a manner consistent with the well-established rules outlined inAmos.

In the result, there is no basis on which to limit the right to sue afforded by s. 103(1)(a)(iii) by means of the s. 112(3) LiabilityCap. [56] Second, I do not accept the respondents’ argument that if the provisions of s. 103(1)(a)(iii) are not subject to the s. 112(3) LiabilityCap, a “flood of litigation” would occur and the related legal costs will undermine the objectives of the modified no-fault provisions ofthe AAIA.

In its Final Report, supra, after conducting a forensic analysis of the existing data, the Review Committee stated the right to atort action pursuant to s. 103 was rarely used during the first five years of the Personal Injury Protection Plan and that it did not anticipatea flood of litigation if the right to sue for loss of earnings income was extended in a significant manner. Its conclusions are dealt with ingreater depth during the discussion of Questions 1, 3(

a) and (

b) and 4. [57] The Legislature responded to the Review Committee’s recommendation by amending s. 103(1)(a)(

i) and thereby significantlyextending an injured insured’s right to sue the Tortfeasor for damages for that portion of his loss of income which exceeds the amountrecoverable from the Insurer. Thus, in this context, it cannot be said that the Legislature was concerned about a flood of litigationoccurring and undermining its modified no-fault scheme. [58] It is of further note that no material evidence was presented to this Court indicating the Review Committee erred in its forecast.

This result may be attributable to the Insurer paying 90% of an insured’s net income, thereby making it impractical to commence aQueen’s Bench action for the purpose of recovering the remaining 10%. Similarly, no material evidence before the Court suggests thatthe results would be markedly different if the right to bring a tort action pursuant to s. 103(1)(a)(iii) is not limited by the s. 112(3)Liability Cap. The obvious exception might be where an insured has suffered a catastrophic injury and is burdened with substantial costsrelated to his or her injury.

I, therefore, conclude that the comprehensive modified no-fault scheme is not undermined or put at risk bythe s. 112(3) Liability Cap not applying in the manner articulated by the respondents. [59] Third, I do not accept the argument that it would be pointless for an insured to select the tort option rather than modified no-faultoption. Under the no-fault option, the insured may not sue for general damages, which may exceed $300,000, or for many non-pecuniary losses which do not constitute an “economic loss” under s. 103(1)(

b) of the AAIA.

[60] It is worth noting, that the intention of the AAIA is very different from the intention underpinning the strict no-fault insurancescheme in the Province of Manitoba, which does not allow an injured insured to bring a tort action against the Tortfeasor. Consequently,the

interpretation of the Manitoba no-fault scheme in McMillan v. Thompson (Rural Municipality), (MB CA), [1997]3 W.W.R. 1 is of limited relevance to the matters before the Court. [61] In sum, the answer to Question 1 is “yes”. The learned Chambers judge erred in holding that an insured may not bring a tort actionto recover damages for “economic loss” pursuant to s. 103(1)(a)(iii) if the benefits paid or payable by the Insurer to or behalf of theinsured pursuant to Division 3 and Division 7 will never exceed the Insurer’s s. 112(3) liability cap.

The meaning he assigned to whatconstitutes an “economic loss” has a disproportionate negative effect on insureds who suffer catastrophic injuries. Such persons willhave higher costs of care for the rest of their lives; much higher than persons who suffer less severe injuries. In turn, the severity of theirinjuries makes it less likely that persons in this group will have other means to pay the significant costs associated with their injuries. This gives rise to the unintended result of those who have the greatest need suffering the most, physically and financially. B.

Question 2: Can a claim for “economic loss” be pursued under s. 103(1)(a)(iii) of the Act where the living assistancebenefits paid by the Insurer pursuant Division 7 and Grid A of Appendix D, does not exceed the weekly maximum of $708.00 perweek?

Question 3 (a): Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1)(a)(iii), be maintainedfor the difference between the amount that the plaintiff claims would be awarded to him as damages for compensation for thecost or value of the assistance that the plaintiff has required and will in the future require to perform or obtain assistance toperform the activities of daily living that he was able to do and did prior to the injury and which are activities included in GridA of the Regulations, and the amount the Insurer has determined he is entitled to be paid as a living assistance allowance underGrid A of the Regulations?

Question 3 (b): Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1)(a)(iii) be maintainedfor the amount the plaintiff claims would be awarded to him as damages for compensation for the cost or value of the assistancethat the plaintiff has required and will in the future require to perform or obtain assistance to perform the activities of dailyliving that he was able to do and did prior to the injury and which are not activities included in Grid A of the Regulations? [62] The answer to these questions is contingent on the meaning ascribed to the term “economic loss” and to the phrase “any past orfuture loss” in s. 103(1)(a)(iii).

Thus, I will deal with these questions concurrently. [63] The Chambers judge’s answer of “no” to each of the aforementioned questions is based on his

interpretation of an actionable“economic loss” claim under s. 103(2) and s. 103(1)(a)(iii) as being limited in two respects. First, it is limited to “those benefitsidentified and paid by SGI, and items not identified as benefits by SGI and not paid for by SGI, are simply not recoverable under s. 103”(para. 50). Second, “… if a particular expense is not paid for by SGI, for a reason other than because the payment of the same wouldresult in SGI exceeding the total combined maximum benefits payable then, that expense cannot be part of an economic loss claim”(para. 52). This

interpretation implicitly imposes a restricted meaning to the term “economic loss” by limiting it to rehabilitation andliving assistance benefits which are not recoverable from the insurer solely because the aggregate total cost for the Division 3 and 7benefits paid or payable to the Insurer will exceed the s. 112(3) liability cap.

In other words, an insured is only entitled to sue theTortfeasor to recover compensation for an economic loss comprised of rehabilitation and assisted living costs only after the Insurer haspaid or in the future will pay benefits on behalf of the insured totaling $5,000,000. [64] In addressing the specific issue raised in Question 2, the Chambers judge applied the aforementioned

interpretation of an actionableeconomic loss in the manner stated in paras. 55 and 59: [55] … Again, it is the defendants’ position that the plaintiff is only entitled to pursue a claim for economic loss for Division 7benefits where the aggregate statutory coverage limit is exceeded. Further, the defendants suggest that s. 103 claims are not availablewhere the actual weekly cost of acquiring the goods and services necessary to fulfill the Grid A prescribed activities exceed the sub-limitreferred to in Appendix D, s. 1(2) of the AAIA Regulations.

I find that I am in agreement with the defendants’ position in this regard andam of the view that s. 103 claims for Division 7 expenses are only available where the overall coverage limit is exceeded. . . . [59] In addition, in addressing the specific question, I am of the view that the rationale in the analysis under the foregoing question[Question 1] is also relevant.

That rationale, again, results in my view that a claim for economic loss cannot be pursued under s.103(1)(a)(iii) of the Act where the benefits paid by the insurer pursuant to Division 3 and Division 7 do not and will not exceed thecombined maximum benefits of $5,000,000 as prescribed in s 112(3) of the AAIA.

[ 65 ] With respect to Question 3(a), which focuses on whether the appellant is entitled to sue to recover damages for the cost or value of the living assistance he requires to perform the activities of daily living which exceeds the amount the Insurer has determined the appellant is entitled to under Grid A of the Regulations , the Chambers judge concluded at para. 63: [63] In considering this matter, I am of the view that the only living assistance benefit that the plaintiff is entitled to under the legislation is the benefit that becomes payable under Grid A assessment.

The monthly living assistance benefit paid to the plaintiff is an amount less than $708 per week and, as has been reflected in various portions of the foregoing analysis, there is no provision which allows a claim for economic loss to proceed where the limit of no-fault coverage has not been exceeded. [ 66 ] The Chambers judge’s answer of “no” to Question 3(

b) is fundamentally based on the

interpretation of s. 103(1)(a)(iii) he applied in answering Questions 1, 2 and 3(a). At paras. 66-68, the Chambers judge gave the following supplementary reasons for his decision: [66] The plaintiff seeks to establish a common law claim for cost of care under the auspices of s.103 of the AAIA . [ 67 ]

Section 103 of the AAIA , through its operation, provides only limited right of action to an injured person to pursue claims for “economic loss” as that

section defines economic loss. [ 68 ] I am satisfied that the proper

interpretation of the legislation is that the plaintiff is not entitled to claim losses that are beyond the scope of

Part VIII of the AAIA. Claims for Division 3 and Division 7 benefits are determined within the confines of

Part VIII and paid for by the defendants only in those instances where the $5,000,000 coverage limit is exceeded. I have earlier commented upon this requirement relative to the $5,000,000 coverage limited and it is again apposite in this specific analysis. [67] The respondents fully support the Chambers judge’s

interpretation of what constitutes an actionable economic loss for the purposes of s. 103(1)(a)(iii). Their position is summarized in para. 60 of the respondent Britannia’s factum: 60. If a no fault claimant is entitled to a benefit and if the cost of the benefit is in excess of the amount to which the claimant is entitled (presumably as a result of payments having exceeded the limits of coverage), then the no fault claimant can pursue a claim for the excess cost of the benefit to which he is entitled against the tortfeasor under

section 103 . [68] The appellant’s position is that s. 103(1)(a)(iii) and s. 103(2) unequivocally give him the right to sue the respondents for damages equal to: (

a) the gap between the cost he has or will incur for items reasonably necessary for his rehabilitation and living assistance which exceed the amount paid or payable by the Insurer pursuant to the provisions of the AAIA ; and (

b) the reasonable cost of cost-of- care items that are not covered by the AAIA or the Regulations , both without regard to the s. 112(3) Liability Cap. [ 69 ] In my view, the appellant’s

interpretation of the aforementioned sections is consistent with the modified no-fault scheme. By using the words “any…loss” in s. 103(1) (a)(iii), the Legislature intended to give an insured the right to sue the Tortfeasor for pecuniary damages equal to the insured’s reasonable costs for rehabilitation, living assistance and other items reasonably necessary as a consequence of the injury suffered that exceed the amount being received from the Insurer pursuant to Divisions 3 and 7.

It is difficult to envisage the Legislature having provided an insured with an extensive right to recover income loss from the Tortfeasor using the phrase “any past or future income loss suffered by the insured in excess of the yearly employment income attributable to the insured” in s. 103(1) (a)(i)(A), while restricting an insured’s right to recover out-of-pocket costs for cost-of-care items by using the phrase “any past and future loss suffered by the insured in excess of the benefits to which the insured is entitled” in s.103(1)(a)(iii). [ 70 ] Section 103(1)(a)(i)(

A) provides and was intended to provide an injured insured with the right to recover damages from the Tortfeasor for his or her net earnings income loss regardless of whether the loss is greater or lesser than the Insurer’s Liability Cap of $56,855 per year, as adjusted from time to time. In the result, negligent Tortfeasors, not faultless insureds, are required to bear the income loss they caused. [ 71 ] The respondents’

interpretation of s. 103(1)(a)(iii) would burden the injured insured with reasonable costs he or she must incur as a consequence of the Tortfeasor’s negligence that are not fully recoverable from the Insurer, while relieving the Tortfeasor from any obligation to contribute towards costs not covered by the Insurer until the s. 112(3) Liability Cap is exceeded. That obligation is extremely limited, as illustrated in the instant case. This is not consistent with the proper

interpretation of the ordinary meaning of the text or the intention of the Legislature. There is no logical reason for the Legislature to have upgraded the right of an insured to sue for loss of all earnings income in 2002 and at the same time to have denied an insured the right to sue to recover the unfunded portion of cost-of-care items, including rehabilitation and living assistance. Nothing in s. 103(1) (a)(iii) indicates that “any loss” is intended to have a different meaning than it has at common law. Nor is the

interpretation of s. 103(1)(a)(iii) that I have accepted, inconsistent with the purposes of the AAIA ; nor is there any credible indication that it would undermine the effective operation of the modified no-fault scheme. [ 72 ] Any other

interpretation than the one that I have chosen would also be inconsistent with the

interpretation of s. 103(1)(a)(iii) by the

Review Committee. Further, the Review Committee emphasized the fact that an important feature of the AAIA ’s modified no-fault provisions is the right of an injured insured to minimize his or her losses by suing to recover damages for economic losses pursuant to s. 103 while imposing some financial responsibility on the Tortfeasor who negligently injured the insured.

The Review Committee summarized the underlying values of a tort action for economic loss at pp. 60-62 of the Final Report : Values underlying the tort action for economic loss The values the Review Committee considered in making this recommendation have already been examined in this report. The values involve the notions of individual responsibility (as well as institutional responsibility); deterrence; loss spreading ; and affordability .

The Committee also felt that by allowing tort actions in some cases as a supplement to no-fault benefits the solution would be more holistic and, indeed, that it might produce some harmony among those involved and within the community as a whole. … As well, it can serve to spread losses among the wider population to ensure that no one is unjustly enriched through negligent behaviour. The Committee was therefore of the view that there should be a realistic opportunity for individuals to sue in tort damages for excess economic loss. Extension of economic loss to cover all earnings loss . . .

This issue was recognized by SGI, which itself proposed an amendment to give the

Section [ s. 103(1) (a)(i)A and 103(1) (a)(i)B] more expansive operation. SGI was of the view that the current provision in Section 103(1) (

a) leaves a gap that should [be] remedied in favour of injured persons. Currently, if the Personal Injury Protection Plan benefits are assessed at a figure below actual income losses, the injured person cannot sue for the extra income loss unless his or her gross income would have been in excess of $56,855 (the current calculation of maximum insurable earnings for the year 2000). The effect of this is to restrict the number of claims for loss of earnings, since according to 1997 Statistics Canada figures, only 8.6% of individuals in Saskatchewan earn more than $50,000 per year. . . .

There are a number of persuasive reasons for allowing an injured person to sue for all his or her lost income in excess of benefits.

They include the following: • Limiting the tort action for income loss in these cases restricts the opportunity for the not at-fault injured person (or an injured person only partially to blame) to seek restoration of his or her pre-accident position in life. • The action offers to the injured person access to the courts to make an individualized determination of income loss. • The action provides protection for the high-income earner to recover losses not available under the Personal Injury Protection Plan. • The availability of the right of action puts some pressure on SGI to more carefully assess no-fault benefits in difficult cases, such as those concerning farmers and self-represented persons. • Where homemakers are concerned, the action gives the opportunity for a full and meaningful assessment at common law of their loss of homemaking capacity as well as their loss of employment income for work outside the home.

Similarly with respect to youth and students, a tort action will assess the full extent of their loss based on the probabilities and possibilities of their future success in relevant employment situations. • The unquantifiable deterrent effect of tort actions remains, and those that might be deterred from acting negligently will be aware of the possibility of being sued for damages, whether they are third parties or persons who are carrying only minimum liability insurance. • The action retains the element of personal responsibility and logical consequences.

Although members of the motoring public collectively absorb the cost of basic income protection for injured persons, if a tort action is allowed against at-fault persons or institutions, they are required to accept some of the consequences of their negligence. • Where third parties are involved, they are often in a position to absorb or spread the loss (See below, Tort Actions Against Third Parties ). The Review Committee therefore recommend strongly that the “gap” with respect to the recovery of loss of earnings under

Section 103 be closed, and that as a result the tort action be available against at-fault parties for all income loss in excess of the no-fault income replacement benefits. [ 73 ] As previously noted, the Review Committee focused on remedying the inequitable limitation on the insured’s ability to pursue the Tortfeasor for damages under s. 103(1)(

a) of the 1994 Amendment . It did so on the basis that s. 103(1)(

c) of the 1994 Amendment already provided a comprehensive remedy for loss of care items. At pp. 57 and 61 the Review Committee said:

Section 103 also allows actions against third parties. … The

Section also allows for a tort action against … anyone else whose negligence exacerbates the injuries suffered in the accident. Section 103(1) explains the meaning of economic loss for the purposes of this tort action, as follows:

a) In the case of a victim who is entitled to an income replacement benefit, any actual income loss suffered by the victim in excess of the maximum yearly insurable earnings…. [currently $56,855]; . . .

Section 103 does not permit the injured person to recover damages in tort for this loss unless the income would rise above $56,855. However, with respect to all other types of economic loss, the tort action is for any proved loss above the level of the benefits to which the injured person is entitled. [ 74 ] These excerpts from the Final Report are not sufficient on their own to ground an

interpretation of s. 103(1)(a)(iii). However, they are consistent with the

interpretation arrived at based on other principles of statutory

interpretation. As such, the Final Report further buttresses the conclusion that there should be a broad

interpretation of the provisions in question. [ 75 ] In sum, for the reasons given above, I conclude that the term “economic loss” in s. 103(1) (a)(iii) of the AAIA , as amended, includes the gap between the actual reasonable cost of rehabilitation, living assistance and other items reasonably required, and the amount recoverable from the Insurer for those items. Therefore, the correct answer to Questions 2, 3(

a) and 3(

b) is “yes” to the extent they confirm the right of an insured to bring a tort action against a Tortfeasor. Whether the cost of a specific item qualifies as an “economic loss” is a matter for a trial judge to determine. C. Question 4 : Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1) (a)(iii) be maintained for the following costs hereinbefore described: (

i) additional housing costs for items beyond what the insurer considered as necessary or advisable under Division 3? (ii) replacement labour costs that would not have been incurred but for the accident? (iii) additional house maintenance costs? (iv) additional travel costs? (

v) additional vehicle costs? (vi) additional costs for recreational and exercise equipment? [ 76 ] The Chambers judge answered “no” to the whole of the aforementioned question. In his opinion, s. 112(1) of the AAIA and s. 12 of the Regulations [3] vest the Insurer with the discretionary right to determine what, if any, rehabilitation benefits an insured is entitled pursuant to Division 3 of the AAIA and that its decision may only be appealed in accordance with the provisions of s. 191 to s. 195 of the AAIA .

Based on the aforementioned sections, he concluded the appellant was not entitled to bring a tort action against the respondents pursuant to s. 103(1) (a)(iii) to recover the reasonable cost of the items described in Question 4, which exceed the amount recoverable from the Insurer for those items. The Chambers judge also took into account his earlier

interpretation of what constitutes an actionable “economic loss” claim for the purposes of s. 103(1)(a)(iii) and concluded the appellant’s out-of-pocket costs for the items enumerated in Question IV did not constitute an actionable economic loss. He also took into account the respondents’ argument that the appellant was “riding two horses” and seeking the same relief. [ 77 ] I respectfully take issue with the

interpretation of ss. 112(1) and 112(2) of the AAIA and s. 12 of the Regulations by the Chambers judge. While the Insurer may make final decisions regarding what benefits an insured is entitled to under the AAIA , it is not called upon to adjudicate what rights an insured may have against the Tortfeasor or what constitutes an “economic loss” for the purposes of s. 103(1) (a)(iii). A decision of the Insurer is relevant only to the extent it settles what benefits the insured is entitled to under

Part VIII of the AAIA . In turn, when a decision of the Insurer is appealed pursuant to the procedures available under Division 11, the appellate body is limited to ruling whether the Insurer erred in its determination of what benefits the insured is entitled.

As previously indicated during my analysis of Question 1, 2 and 3, I interpret what constitutes an economic loss and entitlement for the purposes of s. 103(1) (a)(iii) differently than the Chambers judge. [ 78 ] Moreover, I reject the respondents’ submission that by commencing the within action and concurrently appealing the Insurer’s decision regarding rehabilitation benefits the Insurer was prepared to provide to him, the appellant is seeking the same relief in both proceedings.

The appeal pursuant to the provisions of the AAIA is based on the Insurer having failed to provide the appellant with benefits he is entitled to for the items listed in Question IV. The tort action seeks to recover damages for that portion of the rehabilitation costs the appellant has incurred that are not recoverable pursuant to the provisions of the AAIA . In my view, the remedies the appellant pursues are distinct and thus it is appropriate to pursue these distinct remedies through two different proceedings.

[ 79 ] In sum, I conclude that the appellant is entitled to maintain his tort action for the purpose of recovering his out-of-pocket costs for the items described in Question 4, to the extent that he is not entitled to recover those costs from the insurer pursuant to the AAIA . Whether he is entitled to an award of damages for any item described in Question 4 is a matter for the trial judge to determine. In other words, the answer to Question 4 is “yes”. D. Question 5 : Assuming liability is established, can a claim for economic loss, pursuant to s. 103(1) (

a) of the Act , be maintained for an income loss claim based on the cost of substitute labor, equipment and fuel costs incurred in the operation of the Plaintiff’s farm (subject to adjustments and calculations required to calculate economic loss in the way of income loss pursuant to s. 103 of the Act )? [ 80 ] The wording of this question may have led to a misunderstanding as to what the Chambers judge had been asked to determine. Was the Chambers judge to determine: (

i) whether the loss of the in-kind remuneration the appellant received for work he performed on behalf of his relatives, and his self-employment income as a farmer, constituted an economic loss in respect to which he was entitled to bring an action pursuant to s. 103(1) (a)(i)(A); or (ii) whether the appellant was entitled to bring an action against the respondents only for the purpose of recovering the cost of substitute labour, equipment and fuel costs pursuant to s. 103(1)(a)(i)(B)? [ 81 ] Paragraph 32 of the agreed statement of facts provides: 32. In this action the Plaintiff says he has sustained economic loss within the meaning of

section 103 of the Act and says that he is entitled to claim damages against the Defendants, as follows: . . . (

h) Loss of income, based on the cost of substitute labor, equipment and fuel costs incurred in the operation of the Plaintiff’s farm, subject to adjustments and calculations required to calculate economic loss in the way of income loss pursuant to s. 103 of the Act . [ 82 ] The Chambers judge concluded that the appellant was not seeking to sue the respondents pursuant to s. 103(1) (a)(i)(

A) to recover damages for his income loss, including income he generated as a farmer, because the insurance benefits he received from Co-operators Insurance and the maximum income benefits paid to him by the Insurer collectively equaled his previous salary as an employee of Greif Containers. On this basis, the Chambers judge held the appellant did not have an income loss that exceeded the yearly maximum employment income attributable to him pursuant to Division 4.

The Chambers judge then concluded the remaining issue was whether the appellant was entitled to sue the respondents for damages equal to the loss of the income he generated by farming his land. [ 83 ] Regarding the last issue, the Chambers judge interpreted s. 103(1) (a)(i)(

A) and s. 103(1) (a)(i)(

B) as giving the appellant the option of either receiving an income replacement benefit based on his employment earnings or pursuing “a benefit to fund a substitute work”, e.g., pursuant to ss. 103(1) (a)(i)(B), 117, 118, 119 and 120 of the AAIA . Since the appellant had elected to receive income replacement benefits from the Insurer and was not in receipt of benefits pursuant to s. 103(1) (a)(i)(B), the Chambers judge concluded the appellant was not entitled to sue the respondents for damages equal to his loss of farm income.

The Chambers judge never considered whether the value of the benefits the appellant earned by working for his relatives, or the value of his work on his own farm, constituted an income loss for the purposes of s. 103(1) (a)(i)(A). [ 84 ] The appellant submits the learned Chambers judge erred by: (

a) incorrectly concluding that he was not advancing a claim for a loss of earnings pursuant to s. 103(1)(a)(i)(A), and consequently whether the in-kind benefits the appellant earned by working for his relatives constituted a loss of earnings income for the purposes of s. 103(1)(a)(i)(A); (

b) by not considering whether the value of the appellant’s work on his own farm constituted a loss of earnings income for the purposes of s. 103(1)(a)(i)(A); and (

c) by concluding the appellant’s self-employment earnings as a farmer were only recoverable pursuant to s. 103(1)(a)(i)(B), and then, only if the appellant had applied for benefits under ss. 117 to 120. [ 85 ] In his oral and written submissions, the appellant maintains he always intended to pursue an action against the respondents pursuant to the provisions of s. 103(1) (a)(i)(

A) and s. 103(2) for the purpose of recovering damages equal to the loss of self-employment income sustained as a consequence of no longer being able to work for his relatives or to operate his farm using his relatives’ equipment and fuel. He argues that s. 103(1) (a)(i)(

A) and s. 103(1) (a)(i)(

B) do not deny an injured insured the right to pursue the Tortfeasor for damages for the loss of self-employment income in substantially the same manner as the insured in an employee-employer relationship is entitled to do. Furthermore, he posits that ss. 116 and 117 only provide an injured self-employed insured with the option of receiving substitute worker benefits. Therefore, he chose not to exercise that option because s. 136 of the AAIA limits the total of all income

benefits recoverable from the Insurer to maximum yearly insurable earnings and he was receiving that amount from the Insurer and other sources. [ 86 ] The respondents fully support the decision by the Chambers judge. [ 87 ] With respect, I interpret s. 103(1) (a)(

i) differently than the Chambers judge. The plain meaning of “any past or future income loss suffered by the insured in excess” imparts a broad, inclusive meaning to the term “income loss” as used in s. 103(1) (a)(i)(A). Thus, an income loss may consist of one, or a combination of losses of income as an employee, an independent contractor or other forms of self- employment that exceeds the amount recoverable from the Insurer pursuant to Division 4.

It follows the in-kind benefits the appellant received for work he performed for his relatives might qualify as employment income arising out of a discernible employer-employee relationship, or as earnings generated by a contract worker. To definitively determine the same requires a better factual context than is available to this Court. [ 88 ] This

interpretation derived from the plain meaning of the provision is supported by the Final Report . While the Review Committee did not specifically consider the issue set out in Question 5, they did consider the right to sue for income loss. The Review Committee recommended that the right to sue for income loss be broadened to include all earnings lost, not just those earnings above the SGI cap. This recommendation was later incorporated into the AAIA by the 2002 Amendments . While this recommendation does not address Question 5, it does support the

interpretation derived from the text of the statute that the right to sue in tort for income loss should be construed broadly. [ 89 ] The right to bring an action to recover income loss is not circumscribed by the amount the Insurer is required to pay by way of a lost employment income benefit.

As I expressed during the discussion of Questions 2 and 3, the right of an insured to pursue an action against the Tortfeasor to recover his or her earnings income loss, which exceeds the amount recoverable from the insurer, is not limited to the yearly employment income attributed to the insured by the Insurer or by the yearly employment income provision in s. 100(q), which is used by the Insurer to determine what benefits are available to an insured pursuant to Division 4. [ 90 ] I am further satisfied that the right of the appellant to pursue the respondents for damages equal to his net loss of self-employment income as a farmer is not limited by the provisions of s. 103(1)(a)(i)(B).

Clause B goes no further than to provide an insured with the option of selecting, inter alia , a substitute worker benefit rather than a loss of employment income benefit. [ 91 ] In sum, the answer to Question 5 is “yes”. VII. Conclusion [ 92 ] I would grant the appeal and set aside the order striking the within action with costs to the appellant in the usual manner in this Court and in the Court of Queen’s Bench. DATED at the City of Regina, in the Province of Saskatchewan, this “20 th ” day of December, A.D. 2012. “Klebuc C.J.S.” Klebuc C.J.S. I concur “Jackson J.A.” (as authorized by) Gerwing J.A.

I concur “Jackson J.A.” Jackson J.A. Appendix A The parties agree to the following for an application in this matter for determination of questions of law by this Honourable Court pursuant to Rule 188 of the Queen’s Bench Rules of Court (the “Application”). A.

Definitions The parties agree that for the purpose of this Application, the following terms as used in this Agreed Statement of Facts shall have the following meanings: (

a) Words or phrases which are defined in The Automobile Accident Insurance Act, R.S.S., 1978 c.A-35 (the “Act”) or The Personal Injury Benefits Regulations

Chapter A-35 Reg 3 (the “Regulations”) shall have the same meaning as therein defined. (b) “PIPP” means the bodily injury (no fault) benefits provided pursuant to

Part VIII of the Act and the Regulations. (c) “Insurer” means Saskatchewan Government Insurance; (

d) Part VIII means

Part VIII of the Act B. Agreed Facts The parties agree that for the purposes of this Application, the following facts are to be assumed by this Honourable Court: 1. The Plaintiff, John Acton was involved in a single vehicle rollover accident that occurred on May 30, 2004, near Lloydminster, Saskatchewan. At the time of the accident the Plaintiff was a resident of Saskatchewan. 2. In the accident, the Plaintiff suffered serious injuries including a spinal fracture at C7-T1 and, as a result, has been left a C6 spastic quadriplegic with neurogenic bowel and bladder. His condition is permanent. 3.

Prior to the injury the Plaintiff had no functional impairment relevant to this action. 4. The Plaintiff is entitled to statutory benefits payable under PIPP. 5. The Insurer has and will continue to provide PIPP benefits to the Plaintiff, as follows: a. benefits pursuant to Division 3 of PIPP; b. “income replacement benefits” pursuant to Division 4 of PIPP; c. “living assistance benefit” pursuant to Division 7 of PIPP; d. reimbursement for certain other expenses pursuant to Division 7 of PIPP. 6.

Pursuant to s. 112(3) of the Act the total combined maximum benefits payable to an insured pursuant to Division 3 and Division 7 is $5,000,000.00. The total of the combined maximum benefits which the Plaintiff has received and will in the future receive pursuant to Division 3 and Division 7 will not exceed $5,000,000.00. 7. Pursuant to s. 156(3) of the Act the maximum amount of a “living assistance benefit” payable to an insured is $947.00 per week.

The “living assistance benefit” calculated by the Insurer and paid to the Plaintiff pursuant to Appendix D of the Regulations is and will continue to be less than $947.00 per week. 8. Pursuant to s. 1(2) in Appendix D of the Regulations, the maximum benefit amount available to an insured for a living assistance benefit pursuant to Grid A (“functional activities”) is $708.00 per week. The “1iving assistance benefit” calculated by the Insurer and paid to the Plaintiff pursuant to Grid A of Appendix D is and will continue to be less than $708.00 per week. 9.

The Plaintiff has no cognitive deficits and is not entitled to benefits under Grid B Appendix D of the Regulations. 10. As the result of his injuries, the Plaintiff now requires someone to perform for him, or to assist him to perform, activities of daily living that he was able to do and did prior to the injury. These activities for which the Plaintiff now requires someone to perform, or to assist him to perform, include but are not limited to those functional activities defined in Grid A of the Regulations. 11.

The activities of daily living that the Plaintiff cannot and will not be able to perform, or for which he requires assistance, have been done and will be done by the Plaintiff’s wife Robin Acton, and by others hired to perform or provide assistance to perform such activities for the Plaintiff throughout his lifetime. 12.

For the purposes of this application, the Court is to assume that at common law, the amount of damages that would be awarded to the Plaintiff for pecuniary damages for compensation for the cost or value of the assistance that the Plaintiff has required and will in the future require to perform or obtain assistance to perform the activities of daily living that he was able to do and did prior to the injury exceeds, and will continue to exceed, the amount to which the Insurer has determined the Plaintiff is entitled to be paid for Living Assistance Benefit under Division 7 of the PIPP.

13. In this action, the Plaintiff claims pursuant to s. 103(1)(a)(iii) the difference between the amount that would be awarded to him as damages for such losses at common law and the amount he has been paid and will be paid by the Insurer for Living Assistance Benefit. These claimed losses are of two types: a.

The difference between what the Plaintiff claims he would be entitled to, as damages at common law for compensation for the value or cost to have someone else perform or to assist him to perform, activities of daily living which are activities included in Grid A of the Regulations, and the amount the Insurer has determined he is entitled to be paid for this under the PIPP; b.

The amount the plaintiff claims he would be entitled to as damages at common law as compensation for the value or cost to have someone else perform or to assist him to perform, activities of daily living which are activities not included in Grid A of the Regulations. 14. At the time of the injury, the Plaintiff resided with his wife Robin Acton and their three children at a farm residence north of Lloydminster. 15.

As the result of his injury, the Acton residence was no longer suitable for the needs of the Plaintiff due primarily to the lack of space and equipment and accessibility features needed to accommodate the Plaintiff’s injury related needs. Accordingly, the Plaintiff’s original residence was sold and

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