Docket: CACV2246 Nita L. Dickin Appellant - v. -, 2013 SKCA 121

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 121 Date: 2013-11-12 Between: Docket: CACV2246 Nita L. Dickin Appellant - and - Saskatchewan Government Insurance Respondent Coram: Caldwell, Herauf and Whitmore JJ.A. Counsel: Nita Dickin appearing on her own behalf Steven Haichert for the respondent Appeal: From: Automobile Injury Appeal Commission Heard: November 12, 2013 Disposition: Dismissed (orally)

Written Reasons: November 14, 2013 By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf Whitmore J.A. [1] The appellant appeals the decision of the Saskatchewan Automobile Injury Appeal Commission dated February 17, 2012 (the“variation decision”), which itself was the result of an application to vary a decision of the Automobile Injury Appeal Commission datedOctober 12, 2011. That decision in turn was an appeal of a letter decision of Saskatchewan Government Insurance (“SGI”) dated August5, 2010 denying the appellant any further

Part VIII benefits under The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the“Act”). [2] The appellant was involved in a motor vehicle accident on November 30, 2009. She was admitted to hospital later that day andwas found to be suffering an intracranial bleed.

Benefits were denied her in the letter of August 5, 2010 on the basis that the respondent’smedical consultant who reviewed the file found no evidence of a causal connection between the motor vehicle accident and theintracranial bleed. [3] The October 12, 2011 decision denied the appellant’s appeal on the same basis, namely that the appellant had not discharged theburden of proof that the intracranial bleed was caused by the motor vehicle accident. [4] The appellant then applied to vary the decision of the Automobile Injury Appeal Commission pursuant to s. 195 of the Act.

Thevariation decision held that the appellant had “failed to establish a prima facie case that there has been a material change in hercircumstances” since the October 12, 2011 decision. As a result, the Commission denied leave to make an application for variation ofthe Commission decision of October 12, 2011. [5] The appeal before this Court was dismissed orally and the parties were advised that brief written reasons would follow. Thisdecision shall constitute those reasons. [6]

Section 194 of the Act provides that a party may appeal a decision of the Automobile Accident Appeal Commission on a questionof law only and such appeal must be made within 30 days of the decision. [7] It is not clear from the materials whether the appellant is appealing both the October 12, 2011 decision and the variation decisionof February 17, 2012, so both decisions will be dealt with. An appeal was not made within 30 days of the Commission decision ofOctober 12, 2011 and no request to enlarge the time for that appeal has been requested.

Therefore no appeal lies with respect to theCommission’s decision of October 12, 2011. Even if such a request had been made, we find that the appellant has not met the thresholdto grant the enlargement of time as set out in P.G.R. Films Ltd. v. Sooter Studios Ltd. (1994), (SK CA), 123 Sask. R.301 (C.A.) at para. 4: The principles generally applicable to the exercise of discretion to enlarge an appeal period require consideration of a variety of factors:(

i) bona fide intention to appeal within the time limited for appeal; (ii) demonstration of an arguable case; (iii) explanation for delay; and(iv) no prejudice to the respondent. These various factors were first articulated with some specificity and detail in Cairns v. Cairns, (AB CA), [1931] 3 W.W.R. 335 (Alta. S.C.A.D.). This Court either as a division or in chambers has referred to theseprinciples on a number of occasions: Joynt (Joynt Estate) v. Topp et al (No. 2) (1962-63), (SK CA), 40 W.W.R. 248and cases referred to therein; Royal Bank of Canada v. G.M. Homes Inc. et al (1983), (SK CA), 25 Sask. R. 6; Bank ofNova Scotia v. Saskatoon Salvage Company

(1954) Ltd. (1984), (SK CA), 29 Sask. R. 285; and Treeland Motor InnLtd. v. Western Assurance Company et al (1984), (SK CA), 30 Sask. R. 154. (For representative cases from otherjurisdictions, see Stevenson & Coté Civil Procedure Guide (Juriliber Limited, 1989), pp. 994 to 999.) As these cases indicate, Rule 7requires a balancing of all relevant factors and principles keeping in mind the obligation on the Chambers judge to achieve a just result.In a given case, one or more factors may be more important than another.

For example, in Treeland the minimal prejudice to therespondent coupled with the arguable nature of the case outweighed the lack of intention to appeal during the appeal period. As BaydaC.J.S. said in G.M. Homes (at pp. 6-7): "the only constant rule is that the discretion must be exercised judicially". [8] With respect to the variation decision of February 17, 2012, the application to vary must be based upon new evidence arisingafter the decision of October 12, 2011.

This new evidence would have to establish a material change of circumstance that would render the October 12th decision no longer appropriate. (See: Lange v. Saskatchewan Government Insurance, 2010 SKQB 68, 352 Sask. R.183.) In the matter before us the appellant is not seeking to establish that there is new evidence that her circumstances have changedsince October 12, 2011, rather she is seeking an appeal of the facts as found by the Commission on October 12, 2011.

The Commissionrendering the variation decision did consider the additional documentation submitted by the appellant and concluded that even with theadditional documentation there was no material change in the appellant’s circumstances. [9] We see no error in law on the part of the Appeal Commission’s variation decision of February 17, 2012.

[ 10 ] The allegations that the respondent breached its duty of good faith were not before the Appeal Commission. Therefore there is no issue properly before us with respect to those allegations. [ 11 ] In the end result, the appeal is dismissed. As costs were not requested by the respondent, there is no order as to costs.