Ernst v Saskatchewan Government Insurance, 2019 SKCA 12

Court of Appeal for Saskatchewan Docket: CACV3003 Citation: Ernst v Saskatchewan Government Insurance , 2019 SKCA 12 Date: 2019-01-16 Between: Janet Ernst Appellant And Saskatchewan Government Insurance Respondent Before: Ottenbreit, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: 2016 SKAIA 45 , Saskatoon Appeal Heard: January 16, 2019 Counsel: Jonathan S. Abrametz for the Appellant Dale W.J.

Brown for the Respondent Ottenbreit J.A. [ 1 ] When this matter came on for hearing, we dismissed the appeal of Janet Ernst without costs giving oral reasons with short written reasons to follow. These are the written reasons. [ 2 ] Ms. Ernst sought permanent impairment benefits from Saskatchewan Government Insurance [SGI] as a result of functional impairments allegedly arising from a motor vehicle accident on April 8, 2007. Pursuant to a decision letter dated April 1, 2011, SGI denied further benefits.

In a decision letter dated April 25, 2011, SGI determined the motor vehicle accident resulted in a whole-body impairment for Ms. Ernst of 4.5% and paid her benefits on that basis. Ms. Ernst disagreed with those decisions and appealed to the Automobile Injury Appeal Commission arguing that her functional impairment was substantially higher than 4.5%, was caused by the motor vehicle accident and that she was entitled to ongoing benefits. The main issue before the Commission was therefore causation. [ 3 ] Both SGI and Ms.

Ernst called experts to testify and provide reports and opinion evidence on the issue of causation. Ms. Ernst did not testify. The Commission, after reviewing the evidence of the witnesses, determined that the two decision letters of SGI be upheld. In doing so, the Commission relied on the evidence of the SGI expert witnesses. Implicit in the Commission’s conclusion was a finding of fact that the functional impairment of Ms. Ernst beyond 4.5% was not caused by the motor vehicle accident. [ 4 ] Ms.

Ernst appealed the decision of the Commission under s. 194(1) of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ Act ]. Such appeals are restricted to questions of law. The standard of review on these matters was set out in Germain v Saskatchewan Government Insurance , 2015 SKCA 84 , 465 Sask R 48, and is not in dispute. It is correctness. [ 5 ] Ms. Ernst’s notice of appeal listed grounds dealing with errors in the application of law in the consideration of evidence of potential experts as well as disregard of evidence and reliance on inappropriate or irrelevant evidence.

These grounds of appeal argue that the experts of SGI were less qualified than their expert witnesses and SGI erred by relying on their own witnesses. [ 6 ] In her factum, Ms. Ernst substantially changed the nature of her grounds for this appeal and attempted to introduce new arguments and new evidence. The new arguments raised in the factum were those set forth in paragraph 75.

All of the new grounds deal with the admissibility of the expert evidence of SGI and, in particular, the admissibility of expert evidence based solely on a review of the insured’s file, the admissibility of evidence where the expert might lack certain qualifications or the admissibility of evidence where the expert misrepresents science. The factum of Ms. Ernst is almost wholly devoted to those issues. In detail, these are new and different issues than those set forth in her notice of appeal. [ 7 ] In effect, Ms. Ernst seeks to exclude as inadmissible the evidence of Dr. Green, Dr. Pancyr and Dr.

Flotre, all SGI experts, whose evidence the Commission relied on to reach its decision. However, unfortunately Ms. Ernst did not raise either the admissibility of the evidence of these witnesses or their qualifications to give expert evidence before the Commission, but rather argued that little weight should be given to their evidence. [ 8 ] Ms. Ernst, by filing the factum she has, has made this appeal something substantially different than what was set forth in her notice of appeal. Moreover, the case that she attempts to argue before us is substantially different than was argued before the Commission.

The usual practice of this Court is not to extend its inquiry on appeal into an entirely new matter ( Newell v Director of Community Operations , 2013 SKCA 110 at para 23 , 368 DLR (4th) 731). Likewise, in United Steelworkers v Comfort Cabs Ltd. , 2017 SKCA 45 at para 40 , 414 DLR (4th) 688, this Court said that the rule regarding new arguments on appeal exists because it is ordinarily unfair to require an opposing party to respond where that party might have adduced additional evidence at trial if it had been aware of the issue. [ 9 ] This is exactly the case here. Ms.

Ernst did not challenge the admissibility or limit the admissibility of the SGI expert evidence before the Commission. Nor did she cross-examine on the qualifications of the experts.

[ 10 ] Mr. Abrametz, counsel for Ms. Ernst, now raises an additional new issue not in the notice of appeal or the factum. He argues that subsequent-event evidence was relied on by SGI and that this is not permitted pursuant to certain dicta in Ontario (Energy Board) v Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 SCR 147. His explanation for raising the issue now is that he only found the case recently. The issue had not been raised before the Commission at the hearing in June 2016. [ 11 ] Ms. Ernst’s failure to raise these arguments on a timely basis must lie with her and her counsel.

To allow these arguments would prejudice SGI. Had these issues been raised before the Commission, SGI would have had the opportunity to deal with the admissibility of the evidence and qualification of their witnesses. Moreover, the Commission would have had to address the issue in some way. Clearly, more evidence would have been required to address all the issues raised by Ms. Ernst in her factum. [ 12 ] In these circumstances, Ms. Ernst’s new arguments as set forth in her factum and as set out in oral argument will not be considered by this Court. [ 13 ] Of concern as well is Ms.

Ernst’s attempt to introduce new evidence in the content of paragraphs 184–189 of her factum as well as the excerpts of medical treatises. No application for fresh evidence has been made and she blithely proceeds on the basis that this is something upon which argument can be made in this Court without even referring to it as fresh evidence or making an application with respect to it. [ 14 ] Moreover, the fresh evidence set forth in the factum is something that could have been presented before the Commission and could have been presented in the cross-examination of the SGI witnesses.

The fresh evidence attempts to buttress the new arguments contained in Ms. Ernst’s factum. As such, the Court will disregard any such fresh evidence. [ 15 ] Respecting the decision of the Commission and its reliance on the SGI expert evidence, s. 196.3 of the Act allows the Commission to accept the evidence it did. It is entitled to accept hearsay evidence and is not bound by the rules of evidence at trial. The Commission was therefore completely within its jurisdiction and power to consider the opinion evidence of the experts of SGI, whether or not it was based on a mere review of Ms. Ernst’s file.

The fact it was based on a review of Ms. Ernst’s file generally goes to weight. However, this is not a definitive statement since it appears that under different circumstances the new issues raised by Ms. Ernst are at least arguable and may, depending on the circumstances, be meritorious. However, in the circumstances of this case, the way the case proceeded before the Commission and given the standard of review articulated at the outset, I see no error made by the Commission with respect to the admission of the evidence that would warrant our intervention. Accordingly, Ms.

Ernst’s appeal is dismissed. [ 16 ] SGI has taken the unusual position of requesting costs in this case. Relevant to this issue is that there has been a substantial disregard by counsel for the practice, procedure and rules of this Court with respect to the conduct of an appeal. Counsel cannot file a notice of appeal based on certain grounds, then file a factum based on substantially different grounds and issues and then in oral argument raise new issues found neither in the notice of appeal nor the factum.

Counsel cannot tender new evidence as to facts and medical treatises to this Court by slipping it into the factum and not, at a minimum, calling attention to it as new or making an application for fresh evidence. [ 17 ] Our Court does its work on the basis of evidence in the court or tribunal below and on the basis that the notice of appeal reflects the alleged errors of that court or tribunal and generates the issues to be argued in the factum. This was not the case here.

Fresh evidence can be admitted under the proper circumstances, but it is obvious that no effort to do so has been made in this case. [ 18 ] In circumstances where an appeal has proceeded on the basis of a disregard for this Court’s rules, processes and procedures, costs might well be awarded against counsel for doing so. Certainly, SGI has been put to extra work to address these issues before our Court. However, the ill-advised manner of the conduct of this appeal before us by counsel for Ms. Ernst should not be visited on Ms. Ernst. Mr. Brown has indicated that he is not asking for an award of costs against Mr.

Abrametz. As well, Mr. Abrametz has acknowledged that this appeal has not proceeded based on this Court’s rules, processes and procedures. [ 19 ] Under the circumstances, although this Court is very concerned about how this appeal has been conducted, there will be no order for costs against either Mr. Abrametz or Ms. Ernst.