Saskatchewan Government Insurance v Gardipy, 2019 SKCA 32

Court of Appeal for Saskatchewan Docket: CACV3140 Citation: Saskatchewan Government Insurance v Gardipy , 2019 SKCA 32 Date: 2019-04-05 Between: Saskatchewan Government Insurance Appellant/Respondent on Cross-Appeal (Respondent) And Linda Gardipy Respondent/Appellant on Cross-Appeal (Applicant) Before: Jackson, Ottenbreit and Schwann JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr.

Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann On Appeal From: 2017 SKAIA 45 , Saskatoon Appeal Heard: November 20, 2018 Counsel: Steven Haichert for the Appellant Jonathan S. Abrametz and Madisun Browne for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] Saskatchewan Government Insurance [SGI] appeals the decision of the Automobile Injury Appeal Commission [Commission] dated September 15, 2017, which found that Linda Gardipy was entitled to a loss of studies benefit under s. 121 of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ], to be paid on the basis of her studying at a post-secondary level of education: see D.N. v Saskatchewan Government Insurance , 2017 SKAIA 45 [ Commission Decision ]. [ 2 ] Ms.

Gardipy cross-appeals the decision of the Commission fixing her costs at $2,500, inclusive of all legal costs and disbursements. [ 3 ] For the reasons hereinafter set forth, the appeal of SGI is dismissed. The cross-appeal of Ms. Gardipy is also dismissed. II. Facts and Background [ 4 ] Ms. Gardipy was injured in a motor vehicle accident on January 31, 2011. She was 48 years old at the time of the accident and was a full-time student in the Level 2 Adult Basic Education Program at Northwest Regional College [College] in Rosthern, Saskatchewan. [ 5 ] In a decision letter dated February 25, 2013, SGI notified Ms.

Gardipy that she was entitled to a loss of studies benefit in the amount of $4,544. At that time, SGI did not explain how that amount was calculated but, in fact, it was an amount calculated pursuant to s. 121(2) (

b) of the AAIA on the basis that Ms. Gardipy was studying at a secondary level of education. [ 6 ] In a later decision letter dated April 30, 2013, SGI advised Ms. Gardipy that her loss of studies benefit mentioned earlier had been quantified on the basis that she was attending an upgrading facility and not a post-secondary level school at the time of her motor vehicle accident. Unhappy with the decisions of SGI, Ms. Gardipy appealed to the Commission. [ 7 ] At the hearing, SGI declined to call evidence as to how it dealt with adult students enrolled in programs at regional colleges. However, Ms.

Gardipy called evidence from Jennifer Rooke, the adult basic education coordinator for the College, about the operation of the Adult Basic Education Program and Ms. Gardipy’s studies. [ 8 ] Ms. Rooke explained that the law prescribes who may attend adult basic education, namely, persons who are at least 18 years of age and who have been out of school for one year, and that The Regional Colleges Act , SS 1986-87-88, c R-8.1 and s. 35.2(1) (

a) and s. 35.2(1) (

b) of The Training Programs Regulations , RRS c D-22.01 Reg 1 (made under The Post-Secondary Education and Skills Training Act , SS 2000, c P-16.11), establish those qualifications. Ms. Rooke testified that the College was not administered pursuant to The Education Act, 1995 , SS 1995, c E-0.2 , but rather The Regional Colleges Act . [ 9 ] Ms.

Rooke testified that from an operational standpoint, adult basic education constitutes post-secondary education and she understood it to occur under the authority of The Post-Secondary Education and Skills Training Act . [ 10 ] She said that there were four levels of adult basic education. Ms. Gardipy was studying at Level 2, which was a pre-10 program. That meant that upon successful completion of the program, she should be able to read, write and perform mathematical calculations at a grade 9 level. The third level of the Adult Basic Education Program was Adult 10, and the fourth level was Adult 12.

Ms. Rooke testified that The Education Act, 1995 , applied to the Adult 12 program but not to any other part of the Adult Basic Education Program. [ 11 ] Ms. Rooke stated that there were differences between the education of youth under The Education Act, 1995 , and adult basic education. Levels 1–3 of adult basic education were tailored for an adult student. The four differences were in the adult teaching principles, connections in their curriculum that tie to employment, life skills and life experiences that adult students bring to the table that a typical 15-year-old student would not.

She testified that the Adult Basic Education Program was a distinct curriculum and employed distinct principles and methods of adult education. [ 12 ] However, Ms. Rooke explained that Level 2 studies were basically designed to help students achieve what would effectively be a high-school level as completed by a youth. Ms. Rooke testified, for example, that the Adult 10 course is the equivalent of grade 10, although it was a completely different set of courses and would not show up on a provincial transcript. III. Decision of the Commission [ 13 ] The issue before the Commission was whether Ms.

Gardipy’s loss of studies benefit should be assessed at a post-secondary level pursuant to s. 121 of the AAIA . After reviewing the relevant statutory provisions, the Commission found that at the time of her injury Ms. Gardipy was enrolled in the Adult Basic Education Program at the College. [ 14 ] The Commission observed that the decision letter from SGI with respect to entitlement to the loss of studies benefit made no reference to how Ms. Gardipy’s studies benefit was calculated.

The Commission acknowledged that the College was governed by The Regional Colleges Act , mandated by the Saskatchewan Ministry of the Economy and considered to be a post-secondary institution. Of the four program levels of adult education provided by the College, only the Level 4 Adult 12 education falls within the provisions of The Education Act, 1995 . A student in an Adult 12 program could either take the program at the College or at a high school, so long as the student was under 22 years of age.

The Commission stated that once a student turned 22 years of age, he or she was no longer eligible to attend a high school pursuant to the provisions of The Education Act, 1995 . [ 15 ] The Commission acknowledged that Ms. Gardipy was registered in the Level 2 program, which was a pre-10 course, and that this program did not fall under The Education Act, 1995 . It noted Ms. Rooke testified that Ms. Gardipy “was attending an Adult Education program at a post-secondary institution …” ( Commission Decision at para 23). [ 16 ] The Commission found as a fact that the College was a post-secondary school.

The Commission also noted that it heard no evidence from SGI as to how it dealt with adult students enrolled in programs as defined in The Regional Colleges Act that have no connection with either The Education Act, 1995 , or a normal grade level as contemplated by that Act. The Commission also found as a fact that Ms. Gardipy was enrolled in a course that prepared her for a career, addressed questions of literacy or provided upgrading. [ 17 ] The Commission then observed that Ballantyne v Saskatchewan Government Insurance , 2015 SKCA 38 , 457 Sask R 254 [ Ballantyne ], was similar to the case before it.

The Commission stated this Court set out that SGI paid the Ballantynes, who were attending a community college, a loss of studies benefit “based on their attendance at a post-secondary institution” ( Commission Decision at para 32).

The Commission found that this Court in Ballantyne had interpreted s. 123 of the AAIA in a broad and purposive manner that would not lead to absurdities and that if an ambiguity existed in the AAIA , it should be resolved in the claimant’s favour. [ 18 ] In the case at hand, the Commission concluded the following: [34] Applying a broad and purposive test as set out in Ballantyne, we must take note that while “elementary level” and “secondary level” are defined in the Act, “post-secondary level” is not. However, “post-secondary institution” is defined in the Act.

If we read “post- secondary institution” in a broad manner and like a catch-all type of definition, adult students enrolled in Regional Colleges taking career services, literacy courses, training courses and upgrading programs, as set out in s. 5 of The Regional Colleges Act will be entitled to a studies benefit at a post-secondary level. As indicated, the Appellant was enrolled in such a course which, based on Ms.

Rooke’s testimony, has no equivalency under The Education Act. … [49] The Appellant’s appeal of the February 25, 2013, decision letter is allowed to the extent the Appellant’s studies benefit is to be calculated on the basis that she is studying at a post-secondary level. She is entitled to interest on monies owing to her by SGI. [ 19 ] As to costs, the Commission said as follows: [51] The Appellant is awarded costs, inclusive of her legal costs, in the amount of $2,500, together with the return of her appeal filing fee.

We award these costs on the basis that unlike the vast majority of files we see, the Appellant’s file was not administered appropriately by SGI. Decision letters were not issued in a timely manner and when they were, they were based on incorrect facts and provided little in the way of reasoning. IV. Issues [ 20 ] All of the issues raised by SGI in its factum can be restated: Did the Commission err by failing to properly interpret and apply s. 121 of the AAIA in finding that Ms. Gardipy was a student studying at a post-secondary level? [ 21 ] Ms.

Gardipy, in her cross-appeal, raises the following issue: Did the Commission err in its

interpretation of s. 193(11) and (12) of the AAIA and in making the award of costs it did?

V. Analysis – SGI’s appeal Did the Commission err by failing to properly interpret and apply s. 121 of the AAIAin finding that Ms. Gardipy was a student studying at a post-secondary level? [22] SGI submits the Commission erred in determining that post-secondary level refers to studies taken at a post-secondaryinstitution and that, because Ms. Gardipy attended such an institution, her course of studies was, therefore, at the post-secondary level. [23] In determining whether the Commission erred, I begin with the governing principles of statutory

interpretation as set out bythe Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21 [Rizzo], citing ElmerDriedger, The Construction of Statutes, 2d ed (Toronto: Butterworths, 1983): “Today there is only one principle or approach, namely, thewords of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament” (at 87). [24] This Court has, in a number of cases, dealt with the interpretive approach to be used regarding the AAIA.

In SaskatchewanGovernment Insurance v Speir, 2009 SKCA 73 at para 20, 331 Sask R 250 [Speir], this Court stated that the AAIA must be interpreted ina fair, large and liberal manner that best ensures the attainment of its objects. [25] In Holt v Saskatchewan Government Insurance, 2018 SKCA 7, 75 CCLI (5th) 175 [Holt], this Court recently summarized theinterpretive approach to the AAIA in light of Rizzo: [36] The issue before the trial judge was one of statutory

interpretation. The trial judge quite properly began his examination of s. 123(4)from the purview of the legal principles established by the Supreme Court in Rizzo Shoes, as adapted to this Act in Ballantyne. This Courtin Ballantyne summarized the interpretive approach at para 19 of its decision: [19] The leading case with respect to statutory

interpretation is the Supreme Court of Canada’s decision in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27. A number of principles set out in that case are applicable to the case at hand, namely: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance vSpeir, 2009 SKCA 73 at para 20, 331 Sask R 250; and Acton v Rural Municipality of Britannia, No. 502, 2012 SKCA 127 at paras 16-17, [2013] 4 WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculousor frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner (See: Rizzo Shoes at para. 21).This principle is enshrined in s. 10 of The

Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). [26] With these principles in mind, I turn first to the relevant portions of the AAIA in force at the operative times. [27]

Section 121 is situated in

Part VIII of the AAIA. The purpose of

Part VIII was explained in Ballantyne: [27]

Section 171 of

Part VIII makes it clear that the purpose of that

Part is to provide fair compensation for those covered by the no-faultprovisions. It reads as follows: 171 The insurer shall advise and assist every claimant and shall endeavour to ensure that every claimant is informed of and receives thebenefits to which the claimant is entitled. [28]

Section 171 imposes a duty on SGI to ensure a claimant receives the benefits to which they are entitled. The importance of that dutyis underscored by s. 193(5) of the Act which states that in dealing with appeals from SGI’s determinations of benefits, SGI’s “finding offacts must be adopted on appeal unless the claimant puts them in issue”. [28]

Section 121 entitles students to a loss of studies benefit determined on the basis of whether he or she studies at an elementary,secondary or post-secondary level: 121(1) A student who at the date of the accident is attending school on a full-time basis is entitled to a loss of studies benefit for theperiod the student is unable to begin or to continue his or her current studies because of the accident.

(2) The loss of studies benefit mentioned in subsection (1) is: (

a) in the case of a student studying at the elementary level, $4,011 for each school year not completed; (

b) in the case of a student studying at the secondary level, $3,726 for each semester not completed, to a maximum of $7,451 per schoolyear; and

(

c) in the case of a student studying at the post-secondary level, $7,451 for each semester not completed, to a maximum of $14,901 per school year. [ 29 ] The purpose of s. 121, as noted in Ballantyne , is to compensate a student for study time lost due to the accident (at para 30). [ 30 ] Looking at s. 121 as a whole, the ordinary meaning of the word level is normally understood as referring to a position in a scale or rank.

What is scaled or ranked becomes somewhat clearer in the definition of elementary level and secondary level in the AAIA : 100 (d) “elementary level” means kindergarten, the Elementary Level and grades 6 to 8 of the Middle Level as those levels are determined pursuant to The Education Act, 1995 ; … (n) “secondary level” means grade 9 of the Middle Level and grades 10, 11 and 12 of the Secondary Level as those levels are determined pursuant to The Education Act, 1995 ; [ 31 ] It is evident that these two levels are defined by the ranking and scaling of grades as set forth in The Education Act, 1995 .

However, the term post-secondary level is not defined in the AAIA . This absence of a definition suggests that the word level, as it relates to post-secondary, is not necessarily as restrictive as the definition of level as it relates to elementary and secondary as determined pursuant to The Education Act, 1995 .

It is also apparent that the meaning of the term is not necessarily associated with specific grades of studies pursuant to The Education Act, 1995 , as is the case with the elementary and secondary levels. [ 32 ] Apart from its presence in s. 121, the term post-secondary level appears a number of times in the AAIA (e.g., s. 100 ( a.1 ) and s. 123 ). The reference in s. 100 differentiates the school year at the post-secondary level from that at the elementary and secondary levels: 100 (l) “school year” means: (

i) with respect to the elementary and secondary levels, the period commencing on July 1 of one year and ending on June 30 of the following year; or (ii) with respect to the post-secondary level, the period commencing on September 1 of one year and ending on August 31 of the following year … . [ 33 ] The term student , at the date of SGI’s decision letters, was defined as follows: 100 (p) “student” means an insured who, at the date of an accident: (

i) is under 16 years of age; or (ii) attends an elementary, secondary or post-secondary educational institution on a full-time basis … . [ 34 ] The AAIA defined only one specific type of educational institution: 100 (i) “post-secondary institution” means any educational institution that is not administered pursuant to The Education Act, 1995 … . [ 35 ] It appears that this definition operates to ensure that students who are attending an educational institution not administered pursuant to The Education Act, 1995 , would still be caught by the definition of student, given there was no definition of post-secondary level.

It also serves to differentiate how post-secondary institutions are not all governed or administered under The Education Act, 1995 , as a feature differentiating such institutions from elementary level and secondary level institutions. [ 36 ] To receive benefits under s. 121, the insured must be a student engaged in current studies.

Current studies is defined in the AAIA : 100 (a.1) “current studies” means studies that are part of a program of studies offered by an educational institution at the elementary, secondary or post-secondary level to which, at the date of an accident, a student has been admitted … . [ 37 ] There are three possible levels of programs of current studies denoted by that definition. The content of the program of studies offered at the elementary and secondary levels is presumably defined by reference to the definition of those levels in s. 100(

d) and (

n) set forth above, i.e., kindergarten and grades 1–12 as determined pursuant to The Education Act, 1995 . [ 38 ] As explained above, in the absence of a definition of post-secondary level, the AAIA does not provide a reference point for the content of current studies at a post-secondary level.

It is a reasonable conclusion that the lack of such reference connotes programs of studies and educational content that is less restrictive than and not necessarily related to the educational content of the programs of studies determined pursuant to The Education Act, 1995 . [ 39 ] In the absence of such a controlling defining term, it is instructive to examine the parameters of programs of studies “offered by an educational institution at the … post-secondary level” as set out in s. 100(a.1) and how those programs compare to the programs at the elementary and secondary levels.

It is a safe assumption that post-secondary level programs would be offered at a post-secondary institution. For this analysis, I turn to The Education Act, 1995 , The Post-Secondary Education and Skills Training Act , The Regional Colleges Act and legislation governing the universities in the province. [ 40 ] Because the elementary and secondary levels are defined in the AAIA by reference to The Education Act, 1995 , I start with that Act. As alluded to above, The Education Act, 1995 , governs educational matters and processes in what is commonly called the kindergarten to grade 12 system.

Sections 168(1) and 169(1) set out the four levels and 12 grades of education under the scope of The

Education Act, 1995 : 168

(1) Every school shall be organized to provide any or all of the following instructional components that may be determined by the board of education or the conseil scolaire: (

a) kindergarten, which is to provide instruction and training to pupils of any age that they become eligible within one year to be enrolled in grade 1 in a school in the school division or the division scolaire francophone; (

b) the Elementary Level, which is to provide a five-year program of instruction following completion of the kindergarten year; (

c) the Middle Level, which is to provide a four-year program of instruction to follow completion of the Elementary Level; (

d) the Secondary Level, which is to provide a three-year program of instruction to follow completion of the Middle Level. … 169

(1) Pupils are to be classified according to the grade of the Level in which they are enrolled so that: (

a) those enrolled in the Elementary Level are to be classified as engaged in studies of grade 1, 2, 3, 4 or 5 of that Level; (

b) those enrolled in the Middle Level are to be classified as engaged in studies of grade 6, 7, 8 or 9 of that Level; and (

c) those enrolled in the Secondary Level are to be classified as engaged in studies of grade 10, 11 or 12 of that Level. [ 41 ] For the purposes of The Education Act, 1995 , grade and level appear to be inextricably connected. Notably, the

definitions of the elementary and secondary levels in the AAIA not only connect to The Education Act, 1995 , but also appear to incorporate parameters within those

definitions inextricably linked to grades and levels. [ 42 ] The right to attend schools administered under The Education Act, 1995 , is defined by age: 142

(1) Subject to the other provisions of this Act, every person who has attained the age of six years but has not yet attained the age of 22 years has the right: (

a) to attend school in the school division where that person or that person’s parents or guardians reside; and (

b) to receive instruction appropriate to that person’s age and level of educational achievement. [ 43 ] The instructional content of the various levels and grades is set by the Minister responsible for that Act: 176

(1) Subject to subsection (2) or (3), the program of studies and the courses of study used in a school are to be consistent with the regulations and with any directives that the minister may issue. [ 44 ] The Education Regulations, 2015 , RRS c E-0.2 Reg 24 , provide the following: 30 The courses that may be used in schools are those authorized by the minister and issued in curriculum guides, bulletins or directives. [ 45 ] The upshot of the foregoing is that the content of the programs at the elementary level and secondary level is defined by the Minister and restricted to that delivered from kindergarten to grade 12.

The content of those studies is well known and for the purposes of this matter requires no further explanation. [ 46 ] As mentioned above, s. 100 (

i) of the AAIA defines post-secondary institution as an educational institution not administered pursuant to The Education Act, 1995 . A number of Acts govern delivery of education at post-secondary institutions. [ 47 ] One of them is The Post-Secondary Education and Skills Training Act. This Act authorizes the establishment and operation of post-secondary education, training, career programs and development of policies for regional colleges: 15

(2) The minister may: (

a) take any measures that the minister considers appropriate, including establishing and operating any programs and services, to provide post-secondary education, training, career and employment opportunities and student financial assistance for Saskatchewan people; (

b) develop and implement the policies of the Government of Saskatchewan with respect to regional colleges, SIAST, private vocational schools, universities, the apprenticeship commission and other post-secondary educational institutions and agencies engaged in the delivery of training, career and employment services and student financial assistance; (

c) co-ordinate, develop, implement, promote, monitor and enforce policies and programs of the Government of Saskatchewan relating to post-secondary education, training, career and employment services and student financial assistance; (

d) take measures to provide the people of Saskatchewan, or classes of people within Saskatchewan, with the opportunity to participate in programs and services related to post-secondary education, training, career and employment services and student financial assistance; (

e) collect and disseminate, or cause to be collected and disseminated, information with respect to the development of the labour market in Saskatchewan and post-secondary education, training, career and employment services and student financial assistance; (

f) encourage and stimulate job creation and job development efforts by the departments and agencies of the Government of

Saskatchewan and the private sector; (

g) undertake planning, research and investigation with respect to the labour market in Saskatchewan and to improve the employability of the workforce in Saskatchewan; (

h) subject to Treasury Board approval or any provisions prescribed in the regulations, levy fees and charges for any programs or services provided by the department; (

i) for any purpose relating to any matter under the minister’s administration or for which the minister is responsible, provide consulting, advisory or co-ordinating services by contract or otherwise to any person, agency, organization, association, enterprise, institution, or body within or outside Saskatchewan; (

j) make provision for the preparation and publication, as the minister considers fit, of information with respect to goals, objectives and educational planning respecting the present and future development of the post-secondary education, training, career and employment system and student financial assistance; (

k) co-ordinate, develop, implement and promote policies, programs and activities of the Government of Saskatchewan relating to consumer education; (

l) set standards and specifications for facilities and institutions used for post-secondary education, training, career and employment services; and (

m) appoint one or more persons to advise him or her with respect to approval of plans for the location, specifications, financing, furnishing and maintenance of post-secondary, training, career and employment services facilities and institutions. [ 48 ] What is clear from the foregoing

section is that the Legislature has provided for a scheme of education and programing under The Post-Secondary Education and Skills Training Act , which is not congruent with that provided by The Education Act, 1995 . Subsections 15(2) (b), (

c) and (

d) make clear that the scheme of education and programs will be delivered by a diverse group of post- secondary institutions, i.e., “regional colleges, SIAST, private vocational schools, universities, the apprenticeship commission and other post-secondary educational institutions” (s 15(2)(b)). Clearly, the object of this provision is to provide programs of studies and services geared to “post-secondary education, training, career and employment”.

It may be reasonably inferred that the content of programs mandated pursuant to this Act and offered by post-secondary institutions will be of a different kind and for a different purpose than programs delivered under the umbrella of The Education Act, 1995 . [ 49 ] The Regional Colleges Act empowers regional colleges to deliver diverse programs of studies, including adult basic education in Saskatchewan: 5 A regional college may provide educational services or programs that fall within the following general categories: (

a) university and technical institute courses provided by way of a contract between the college and a university or technical institute; (

b) training programs that prepare individuals for a career or provide education with respect to health or social issues; (

c) training programs paid wholly or partly by private businesses, non-profit groups or government agencies; (

d) career services; (

e) adult basic education, literacy and upgrading programs; (

f) any other educational activities that the Lieutenant Governor in Council may prescribe in the regulations. [ 50 ] Pointedly, the majority of a regional college’s educational mandate appears to relate to programs of studies that comport with the objects of s. 15(2) of The Post-Secondary Education and Skills Training Act , i.e., “post-secondary education, training, career and employment”. [ 51 ] The Training Programs Regulations create the standards and processes for adult basic education.

The purpose of adult basic education is set forth in s. 35.1 thereof: 35.1 The purpose of an adult basic education program is to assist adults in furthering their education at the primary or secondary education level. [ 52 ] The words primary or secondary education level are not defined. The curriculum for adult basic education is set pursuant to s. 35.2(3) of The Training Programs Regulations . [ 53 ]

Section 35.2(1) of The Training Programs Regulations establishes eligibility criteria for adult basic education as follows: 35.2

(1) Any individual who wishes to participate in an adult basic education program must: (

a) be 18 years of age or older; (

b) have been out of school for at least one year; and (

c) apply to participate in an adult basic education program offered by an organization that is approved by the minister. [ 54 ] Although the term school in s. 35.2(1) (

b) is not defined in the context of the requirement that a person must be at least 18

years of age or older and out of school for at least one year, it can be said with some assurance that those eligible for adult basic education would have taken some studies at a school providing education at the elementary or secondary level. It may be inferred that adult basic education is a course of studies that is post attendance at such a school. [ 55 ] With respect to the legislation governing universities, it is only necessary, by way of example, to canvas one statute: The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1 .

It clearly states the “primary role of a university is to provide post-secondary instruction” (s. 4(1)) and prescribe programs of instruction at the university (s. 61(1)(f)). The programs offered by universities and the general content of those programs are common knowledge and need no further explanation. [ 56 ] On the basis of the foregoing, it is reasonable to conclude that there exist a number of post-secondary institutions that are part of a scheme of post-secondary education that are not administered pursuant to The Education Act, 1995 .

These institutions offer programs of studies that have purposes and content that is not congruent with the purpose and content of studies at the elementary and secondary levels and associated grades. These programs of studies include those geared to adults and career and employment training. Adult basic education is clearly a subset of post-secondary education offered by such post-secondary institutions.

More significantly, there is nothing in this body of legislation governing post-secondary institutions that suggests that studies at such institutions generally parallel studies at the elementary and secondary levels, as taught in schools under The Education Act, 1995 . [ 57 ] With this background, and taking all the foregoing into consideration, I turn to determining the meaning of the term post- secondary level set forth in s. 121 using the Rizzo principles as adapted to the AAIA that I have mentioned earlier. [ 58 ] The term post-secondary level is not defined.

This creates an ambiguity as to what the term means. As mentioned above, the provisions of the AAIA must be construed in a broad and generous manner. Its terms must be given a fair, large and liberal

interpretation. [ 59 ] The plain meaning of the term post-secondary level connotes a program of studies that may take place post or after the secondary level of studies. In that sense, it may be assumed that it is distinguishable from the studies at the secondary level as defined in the AAIA , i.e., grades 10–12. [ 60 ] As noted above, although it appears elementary and secondary levels as defined in the AAIA are inextricably linked to the grade levels under The Education Act, 1995 , the AAIA makes no such linkage at the post-secondary level.

Put another way, studies at that level are not legislatively tied to, congruent with or restricted to programs and studies under The Education Act, 1995 .

This point is underlined by s. 15(2) of The Post-Secondary Education and Skills Training Act , which provides the legislative authority to deliver post- secondary programs through various facilities other than schools under The Education Act, 1995 . [ 61 ] The legislation governing post-secondary education outlined above, as a whole, evinces a different echelon or rank of both programming and education generally, and certainly education and programming that can, as a whole, be considered distinct in content and purpose from studies at the elementary and secondary levels under The Education Act, 1995 .

These programs are delivered by educational institutions that are not administered under The Education Act, 1995 . [ 62 ] Therefore, on the basis of an analysis of the relevant legislation, the term post-secondary level as it appears in s. 121, interpreted broadly and expansively, refers to (

a) any program of studies not tied to, congruent with or restricted to the elementary and secondary levels of studies as defined by The Education Act, 1995 , and (

b) is taught at an educational institution that is not administered pursuant to The Education Act, 1995 . For practical purposes, such a definition would mean that, prima facie, anyone attending a post- secondary educational institution would be studying at the post-secondary level. [ 63 ] However, SGI argues that even if the definition of post-secondary level is expansive, the determinative factor, as it relates to Ms.

Gardipy, is the stated purpose of adult basic education in s. 35.1 of The Training Programs Regulations , i.e . , to assist adults in “furthering their education at the primary or secondary education level”. SGI submits the Commission failed to consider this regulation in construing the term post-secondary level and that it defines adult basic education as part of a secondary education level. [ 64 ] There are several concerns with this submission.

First, even though regulations can sometimes be used to help interpret the statute pursuant to which they are made ( Monsanto Canada Inc. v Ontario (Superintendent of Financial Services) , 2004 SCC 54 at para 35 , [2004] 3 SCR 152), The Training Programs Regulations are not made pursuant to the AAIA .

It is, therefore, only of limited help in determining the ultimate meaning of post-secondary level in the AAIA . [ 65 ] Second, s. 35.1 of The Training Programs Regulations appears to be aspirational rather than dictating the nature of the curriculum of adult basic education. [ 66 ] Third, the reference to primary education level simply does not connect to either the AAIA or The Education Act, 1995 .

Neither Act makes reference to a primary education level. [ 67 ] Last, implicit in this submission is that the content of the course for a student who is at least 18 years of age and has been out of school for at least one year – the eligibility criteria for adult basic education – is determinative of whether the student is studying at the post-secondary level. As explained above, this is not necessarily so given that, for the purposes of post-secondary level, content is not defined as it is for the elementary and secondary levels. [ 68 ] However, the evidence before the Commission confirms the content of Ms.

Gardipy’s course and the nature of the instruction she received was not congruent with or restricted to studies at the secondary level. [ 69 ] The evidence of Ms. Rooke with respect to the Adult Basic Education Program and the studies of Ms. Gardipy made clear that the program is not the same as grades 9–12 of the secondary level, except in regard to grade 12. She testified there were four levels of adult basic education. Ms. Gardipy was in Level 2, which was a pre-10 program, which meant that upon successful completion she should be able to read, write and perform mathematical calculations at a grade 9 level.

Pointedly, the pre-10 program was not described as being the same as the grade 9 program pursuant to The Education Act, 1995 .

[ 70 ] The third level of the Adult Basic Education Program described was Adult 10 and the fourth level was Adult 12. Ms. Rooke testified that The Education Act, 1995 , applied to the Adult 12 program, but not to any other part of the Adult Basic Education Program. [ 71 ] I digress here to note that the grade 12 program taught at the College appears to be identical to that taught in grade 12 at the secondary level. At first glance, this course would appear not to fit within the earlier definition of post-secondary level.

However, given the legislative analysis above regarding the purpose of instruction at the post-secondary level and taking into account the purpose of this course as taught by the College to an adult like Ms. Gardipy as part of adult basic education, those grade 12 studies can be said to be at the post-secondary level. [ 72 ] This is underscored by the evidence of Ms. Rooke, who stated that there were differences between the education of youth under The Education Act, 1995 , and adult basic education. Levels 1–3 of adult basic education were tailored for an adult student.

As I have indicated earlier, the differences were in the adult teaching principles, connections in the curriculum that tie to employment, life skills and experiences that an adult student would bring to the table that a typical 15-year-old student would not. She testified that adult basic education was a distinct curriculum and employed the distinct fundamental principles and methods of adult education. [ 73 ] The content of Ms.

Gardipy’s pre-10 studies in the Adult Basic Education Program, although having some equivalency to the educational content of grade 9, was different both in terms of content and the way it was taught. It was geared to her as an adult and, most importantly, was not tied to, congruent with or restricted to the elementary and secondary levels as defined in The Education Act, 1995 . She was taking her studies at a post-secondary institution. [ 74 ] On the basis of the foregoing, I conclude that the Adult Basic Education Program in which Ms. Gardipy was enrolled is at a post-secondary level.

Accordingly, the Commission did not err in its analysis and conclusion regarding the level of study in which Ms. Gardipy was engaged based on the evidence before it. [ 75 ] The appeal of SGI is dismissed. Ms. Gardipy shall have her party–party costs. VI. Analysis – Ms. Gardipy’s Cross-Appeal A. Did the Commission err in its

interpretation of s. 193(11) and (12) of the AAIA and in making the award of costs it did? [ 76 ] Ms. Gardipy argues the Commission erred in awarding the costs it did. She submits that s. 193(11) and s. 193(12), read in the context of s. 171 and the AAIA as a whole, require the Commission to reimburse successful claimants who come before it for actual costs or solicitor–client costs in every case. The lynchpin of this submission are the words “endeavour to ensure” in s. 171, which Ms. Gardipy argues creates absolute liability on SGI to provide all benefits due to her under the AAIA . From this premise, Ms.

Gardipy argues that if the Commission does not award actual costs or solicitor–client costs, she would be required to pay her lawyer’s costs out of the benefits she received, thereby resulting in her not receiving all the benefits referred to in s. 171. As authority for her

interpretation of s. 171, she cites the decisions of this Court in Terry v Saskatchewan Government Insurance , 2006 SKCA 96 , 285 Sask R 207 [ Terry ], Ballantyne and Holt . [ 77 ] In assessing the merit of these submissions, I turn first to the germane AAIA legislation: 193

(1) This

section applies to appeals before the appeal commission. …

(11) Subject to the regulations, the insurer shall reimburse a claimant who is successful on appeal pursuant to this

section or

section 194 for the claimant’s costs in the prescribed amount.

(12) If the insurer is obligated to pay a claimant’s bill of fees and disbursements in an appeal pursuant to this section, the insurer is deemed to be a person charged with the bill and may apply for taxation of the claimant’s bill of fees to a taxing officer in the same manner as costs pursuant to The Queen’s Bench Rules or The Legal Profession Act, 1990 . [ 78 ] The Personal Injury Benefits Regulations , RRS c A-35 Reg 3 [ Personal Injury Regulations ], provide the following: 96

(1) For the purposes of subsection 193(11) of the Act, the insurer shall reimburse a claimant up to a maximum amount of $2,500 for all reasonable expenses incurred from the date of filing the appeal to the date of the judgment or the appeal commission’s decision.

(2) For the purposes of subsection (1), “reasonable expenses” includes meals, lodging, travel expenses and expert reports. (Emphasis in original) [ 79 ]

Section 171 of the AAIA reads as follows: 171 The insurer shall advise and assist every claimant and shall endeavour to ensure that every claimant is informed of and receives the benefits to which the claimant is entitled. [ 80 ] Both Ballantyne and Holt , cited by Ms. Gardipy in support of her

interpretation of s. 171, admittedly affirm that s. 171

articulates the purpose of the AAIA. However, a close reading of those cases discloses nothing that supports Ms. Gardipy’s

interpretationof s. 171 as it may apply to the issue of costs, expenses, legal fees and disbursements. Nor is there anything in Terry to that effect.Section 171 merely places a positive obligation on SGI to try to ensure that the benefits conferred by the AAIA flow to the claimant.Section 193(11) and (12) are specific provisions dealing with costs and therefore are the focus of the powers of the Commissionregarding costs. [81] On a plain reading, neither s. 193(11) nor (12) mention solicitor–client costs. However, Ms.

Gardipy argues that the wordingof s. 193(11), “the insurer shall reimburse a claimant who is successful … for the claimant’s costs” (emphasis added), creates anobligation to indemnify her for all her actual costs or solicitor–client costs. Ms. Gardipy provides no authorities that interpret this phrasein such a way. While the word reimburse can mean more than pay back and is capable of meaning indemnify, I am satisfied, based onthe case law with respect to s. 193(11)and (12), it does not connote full indemnity. [82] The governing case in respect to the meaning of s. 193(11) and (12) is Speir.

The first observation from Speir is that the wordcosts, as used in s. 193(11), is a term of art (Speir at para 25). On this basis, an award of costs or reimbursement for costs, as used in thesection, implies that the Legislature intended for the Commission to make an award within the normally understood context of the termcosts, i.e., court costs. Solicitor–client costs are an exceptional subset of court costs. The ordinary use of the word costs suggests that apayment will be made in accordance with a tariff.

On this basis, s. 193(11) allows for reimbursement in the manner of normal courtcosts. [83] In Speir, this Court explained the concept of costs as dealt with by s. 193(11) and (12) as follows: [23] Section 193(12) and 192(2) both provide that “if the insurer is obligated to pay a claimant’s bill of fees and disbursements”, theinsurer may apply for taxation of the claimant’s bill of fees either pursuant to The Queen’s Bench Rules or The Legal Profession Act,1990, S.S. 1990-91, c. L-10.1. Based on this, it is clear that the legislature intended that SGI could become obliged, subject to taxation,for the payment of (

i) party and party costs before the Court of Queen’s Bench or the Commission; and (ii) solicitor and client costsbefore the Commission or the Court of Queen’s Bench. … [33] The legislature intended by the express wording of s. 193(11) that “costs” be paid to the successful claimant, which preserves thetraditional theory of awarding costs to the litigants who have been put to the expense of suing to receive what was rightfully theirs fromthe outset. Claimants, however, need not be represented by a lawyer.

In court proceedings, the usual practice in this Province is not toaward costs to a successful self-represented litigant, but to award disbursements only. See: Agricultural Credit Corp. of Saskatchewan v.Crush, (SK KB), [1991] 5 W.W.R. 221 (Sask. Q.B.) at para. 6; and Orkin, supra at 2-139 to 2-140. [34] Based on this, and having regard for the legislative direction that a successful litigant is entitled to costs, there is, in my respectfulview, only one

interpretation that is available to the Court. On a proper construction of the AAIA and the Regulations, the LieutenantGovernor in Council has not enacted regulations pertaining to, or limiting, the amount of “legal costs” payable to successful claimantsbefore either the Court of Queen’s Bench or the Commission. The Lieutenant Governor in Council has, instead, specifically addressedthe situation of the self-represented claimant before the Commission. [35]

Section 96, consistent with the opening words of s. 193(11), must be taken to expand SGI’s authority to reimburse the successfulclaimant, who is not legally represented, for expenses and disbursements, and who, but for s. 96, would not be entitled to “costs” as ofright. This explains the definition of “reasonable expenses”, which would be unnecessary in a

section limiting “costs”, and also explainsthe reference to “expert reports”, which would normally be covered as a disbursement in a bill of costs, and would be awarded as adisbursement by the Court of Queen’s Bench, even if the successful party were not represented by a lawyer. The “reasonable expenses”of a self-represented claimant are limited to $2,500 plus the possibility of taxation, whereas the limit for a legally represented claimant isconfined to the ability to have a bill of costs taxed only. [36] This

interpretation is the one that respects most a reading of the applicable provisions of the AAIA and the Regulations taken as awhole. It is the

interpretation that provides “the fair, large and liberal construction” that best ensures the attainment of paying the costs ofsuccessful claimants who are legally represented before the Commission and paying the “reasonable expenses” of those who are not sorepresented. It also treats represented litigants the same as those who appeal to the Court of Queen’s Bench. (Emphasis in original) [84] A number of points are clear from the foregoing.

First, the Commission has the power to award either solicitor–client orparty–party costs to a successful claimant subject to taxation pursuant to The Queen’s Bench Rules or The Legal Professions Act, 1990,SS 1990-91, c L-10.1. Second, the wording of s. 193(11) of the AAIA to “reimburse a claimant who is successful … for the claimant’scosts” preserves the traditional theory of awarding costs to litigants who have been put to the expense of suing to receive what wasrightfully theirs from the outset.

Third, s. 96 of the Personal Injury Regulations does not detract from the power to award solicitor–clientor party–party costs. Rather, it refers to reimbursement of expenses for an unrepresented claimant. [85] Neither s. 193(11) nor s. 193(12) of the AAIA say anything about a duty on the Commission to order actual costs or solicitor–client costs to a successful claimant. On the basis of Speir, reimburse as used in s. 193(11) does not require solicitor–client costs to beinvariably paid. Notably, the fact that s. 193(12) begins with the conditional phrase, “[i]f the insurer is obligated to pay a claimant’s bill

of fees and disbursements …”, demonstrates the Commission has a discretion but not an obligation to award solicitor–client costs. [ 86 ] This conclusion is underlined by the historical analysis done in Bear v Saskatchewan (Saskatchewan Government Insurance) , 2004 SKQB 398 , 255 Sask R 203 [ Bear ]. Ms. Gardipy submits that Bear has been overtaken by subsequent jurisprudence and is no longer applicable; however, this is not so. Bear is instructive regarding the Legislature’s intentions regarding the costs regime in the AAIA as it relates to solicitor–client costs.

I will explain. [ 87 ] After January 1, 1995, the AAIA became a no-fault insurance system. Statutory benefits were payable to claimants with a proviso that if a claim was denied by the insurer, then the claimant had a right of appeal to the Court of Queen’s Bench as set out in s. 198 of the AAIA . Section 198(5) dealt with costs to be awarded on such an appeal: 198

(5) Subject to the regulations, the insurer shall reimburse a claimant who is successful on an appeal pursuant to this

section or

section 199 for the claimant’s costs on a solicitor and client basis. [ 88 ] Section 198(5) used the word shall and mandated solicitor–client costs. Section 101(1) of the then Personal Injury Regulations capped the amount claimable as solicitor–client costs pursuant to s. 198(5). [ 89 ] Effective August 1, 2002, the AAIA was amended to allow claimants a choice between appealing a refusal of benefits to the Court of Queen’s Bench or to the Commission. The amendments resulted in the repeal of s. 198(5) as well as s. 101 of the Personal Injury Regulations . [ 90 ] After 2002, appeals to the Court of Queen’s Bench were governed by s. 192: 192

(1) An appeal to the Court of Queen’s Bench is to be conducted in accordance with The Queen’s Bench Rules respecting actions commenced by statement of claim.

(2) If the insurer is obligated to pay a claimant’s bill of fees and disbursements in an appeal pursuant to this section, the insurer is deemed to be a person charged with the bill and may apply for taxation of the claimant’s bill of fees to a taxing officer in the same manner as costs pursuant to The Queen’s Bench Rules or The Legal Profession Act, 1990 . [ 91 ] In Bear , as in this case, the claimant argued that s. 192(2), which was worded identically to s. 193(12) , should be interpreted as specifically obligating the insurer to pay full solicitor–client costs. [ 92 ] In Bear , Ryan-Froslie J., as she then was, explained the above described changes in the costs provisions relating to appeals: [15]

Section 192 of The Automobile Accident Insurance Act deals with how appeals to the Court are to be conducted. A comparison of s. 192 to the old s. 198(5), makes it clear that the legislature intended to change how costs are awarded to successful claimants on appeals to the Court. Section 198(5) which provided mandatory solicitor/client costs was repealed and replaced by s. 192 which clearly states appeals to the Court are to be conducted in accordance with the Queen’s Bench Rules . Those rules include rules relating to the granting of costs.

Section 192(2) does not, as counsel for the plaintiff argued, provide for mandatory solicitor/client costs. That subsection begins with a conditional phrase: “ If the insurer is obligated to pay a claimant’s bill of fees and disbursements..”.. This condition can only be met if the Court exercises its discretion and imposes the obligation referred to on the insurer. In that event, s. 192(2) gives the insurer status to apply for taxation of the bill.

If the legislature had intended successful claimants to automatically receive solicitor/client costs, there would have been no need to repeal s. 198(5) which was a very clear provision to that effect. (Emphasis in original) [ 93 ] Legislative changes are purposeful: see Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham, Ont: LexisNexis, 2014) at 662.

The change described in the above excerpt from Bear indicates a legislative intention after August 1, 2002, to move from mandatory orders for solicitor–client costs to a situation where orders were not mandatory, but rather discretionary. [ 94 ] The upshot of this as it relates to s. 193(11) and (12) is if the Legislature intended successful claimants to automatically receive full solicitor–client costs it would have said so as it did prior to 2002. Thus, the Commission has the discretion but not the obligation to order solicitor–client costs. This is not inconsistent with s. 171 . [ 95 ] The arguments of Ms.

Gardipy regarding costs must fail. [ 96 ] Accordingly, the cross-appeal of Ms. Gardipy is dismissed. There will be no order as to costs on the cross-appeal. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A.