Cop v Saskatchewan Government Insurance, 2019 SKCA 75

Court of Appeal for Saskatchewan Docket: CACV3121 Citation: Cop v Saskatchewan Government Insurance , 2019 SKCA 75 Date: 2019-08-02 Between: Gilles Cop Appellant (Appellant) And Saskatchewan Government Insurance Respondent (Respondent) Before: Richards C.J.S., Leurer and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Barrington-Foote On Appeal From: 2017 SKAIA 29 , Regina Appeal Heard: February 19, 2019 Counsel: Jonathan Abrametz for the Appellant James G.

Garden for the Respondent Leurer J.A. I. Introduction [ 1 ] Gilles Cop appeals the decision of the Automobile Accident Insurance Commission [Commission] ( P.L. v Saskatchewan Government Insurance , 2017 SKAIA 29 [ Commission Decision ]), which allowed in limited part only his claim to income replacement benefits pursuant to The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ]. [ 2 ] In my respectful view, the Commission’s reasons evince error of law and a new hearing of Mr. Cop’s claim is required. My reasons for reaching this conclusion follow. II. Background [ 3 ] On February 12, 1999, Mr.

Cop lost control of, and rolled, a half-ton truck he was driving on a Saskatchewan grid road. Mr. Cop was found at the accident scene lying in the snow approximately 30 feet from the rolled vehicle. Mr. Cop was taken to Redvers Hospital where he remained for three days. While there is no dispute that Mr. Cop was injured as a result of the accident, the extent of those injuries and the mechanics of their cause became contentious issues before the Commission. [ 4 ] In early 2002, Mr. Cop contacted Saskatchewan Government Insurance [SGI] about securing benefits pursuant to the AAIA . On March 28, 2002, Mr.

Cop completed an application for injury benefits. Because the claim was submitted more than two years after the accident and was potentially subject to a statutory limitation period, SGI investigated Mr. Cop’s claim under a reservation of rights. The time limitation issue was eventually resolved. [ 5 ] Prior to the accident, Mr. Cop had operated a mixed grain and cattle farm near Storthoaks, Saskatchewan, and also had done creative work as an author, playwright and voice actor.

His contention was that following the accident, due to physical limitations, pain and memory problems—all of which he attributed to the 1999 accident—he could not do any of this work. In his application for income replacement benefits, Mr. Cop described symptoms he was experiencing as a result of the accident as consisting of “difficulty sleeping, waking up with numbness in [his] arms and hands, serious memory loss, severe headaches … [and] shortness of breath”. Mr.

Cop described the impact on his daily life in the following terms: I function at an absolute minimum when I perform daily home chores because of pain and at times I have been laid up for days totally incapacitated. … I had to sell cattle and rent farm. I am unable to perform shop/repair duties on farm equipment, etc. … My entire lifestyle has changed as I frequently experience pain and fatigue. [ 6 ] SGI investigated Mr. Cop’s claim. This investigation included gathering medical and other records. SGI became dissatisfied with Mr. Cop’s cooperation with its information requests.

On March 30, 2007, SGI’s representative wrote to Mr. Cop’s counsel advising as follows: I have not received a response from you nor Mr. Cop, to my January 10th, 2007, request for information. This inaction is again considered non-compliance. The information that our office has been able to obtain does not support Mr. Cop is entitled to a claim for benefits. Effective immediately, Saskatchewan Government Insurance has terminated all Personal Injury Protection Plan benefits that Mr. Cop was potentially entitled to receive and mediation is discontinued. Mr.

Cop has the right to appeal this decision to the Automobile Injury Appeal Commission or to the Court of Queen’s Bench within 60 days of the date of this letter.

[ 7 ] Mr. Cop appealed this decision to the Commission. Notwithstanding the appeal, over the next several years Mr. Cop and SGI continued to attempt to resolve Mr. Cop’s claim without the need for a hearing. To this end, Mr. Cop provided additional medical information to SGI and submitted to various assessments arranged by SGI. [ 8 ] On April 19, 2012, SGI advised Mr. Cop that it had completed the review of his claim for permanent impairment benefits. SGI admitted a benefit of $11,774.17 for scarring.

This determination was not in dispute before the Commission and is not a live issue in the appeal before this Court. [ 9 ] Mr. Cop and SGI were not able to come to an agreement with respect to his claim for income replacement benefits pursuant to s. 112 of the AAIA . This remaining dispute was heard by the Commission over four days between September 27, 2016 and February 16, 2017. Mr. Cop’s position before the Commission was that since the accident, he had been unable to continue the full-time employment he previously held. Mr.

Cop claimed retroactive and prospective income replacement benefits as well as costs on a substantial indemnity basis. SGI’s position was that, except for a short period of time after the accident when he had suffered from a broken sternum, Mr. Cop’s claimed disabilities were caused by health conditions that had existed or would have developed independently of the accident. [ 10 ] The Commission received written medical and other opinions, as well as other medical and other documentation, filed on behalf of both Mr. Cop and SGI. The Commission also received viva voce testimony from three witnesses: Mr.

Cop and Dr. S.M. Esmail testified in support of Mr. Cop’s claim, and Dr. H.M. Sommer testified on behalf of SGI. III. The Commission Decision ( 2017 SKAIA 29 ) [ 11 ] The Commission broke its analysis of Mr. Cop’s appeal into a consideration of two issues: (

i) whether Mr. Cop’s “present condition [was] caused by the injuries sustained in the MVA” (motor vehicle accident); and (ii) whether Mr. Cop was “entitled to any benefits under the [ AAIA ]”. [ 12 ] In respect to the first issue, the Commission determined Mr. Cop had suffered a fractured sternum and a laceration on his right knee, but no other injuries as a result of the accident. The Commission concluded that “the evidence does not establish on a balance of probabilities that the MVA caused or materially contributed to [Mr. Cop’s] current complaints” (at para 69).

The Commission was “not convinced from the evidence” that Mr. Cop suffered from a concussion because there was “no objective evidence confirming that the Appellant was ejected from the vehicle” (at para 74). The Commission was also “not satisfied [Mr. Cop] sustained a fracture of his ribs as a result of the MVA” (at para 75). It concluded that there was “no objective evidence to establish that [Mr. Cop’s] current breathing and chest problems [were] in any way related to the injuries sustained in the MVA” (at para 77). Finally, the Commission accepted the evidence found in the written report of Dr. G.M.

Tarr—who had treated Mr. Cop after the accident and had also been, for a time, Mr. Cop’s personal physician—and the reports and testimony of Dr. Sommer, that Mr. Cop’s “current neck and back problems were not caused by the accident, but due to a pre-existing degenerative condition” (at para 79). [ 13 ] In respect to the second issue, the Commission found Mr. Cop had suffered a fractured sternum in the accident. The Commission accepted the opinion of SGI’s medical examiner, Dr. J. Alport, that Mr. Cop “would not be able to do heavy work, such as farm labour, for a period of 90 days following the MVA” (at para 92).

On the basis of this, the Commission held that although Mr. Cop’s “current condition is not as a result of the MVA, but due to a degenerative condition” (at para 91), he was entitled to income replacement for 90 days following the accident. [ 14 ] Finally, the Commission awarded Mr. Cop costs in the amount of $1,000 “based on the fact the injury to the sternum was never in dispute”. The Commission seems to have limited the costs to this amount because “SGI had requested on numerous occasions financial information from [Mr. Cop] which [Mr. Cop] never provided.

This information was necessary for SGI to determine whether an income replacement benefit was payable” (at para 95). IV. Parties’ Positions [ 15 ] In his factum, Mr. Cop argues that the Commission erred in several ways and asks this Court to make an order that he is entitled to no-fault benefits, “including retroactive and prospective income replacement benefits because he has been unable to resume full-time farming and creative work since the MVA on February 12, 1999 as well as solicitor client costs on a substantial indemnity basis”. Alternatively, Mr.

Cop requests an order directing a new hearing of his claim. [ 16 ] SGI argues that the Commission’s decision manifests no reviewable error. It asks that Mr. Cop’s appeal be dismissed with costs. V. jurisdiction and issues [ 17 ] Mr. Cop’s appeal is pursuant to s. 194(1) of the AAIA which states as follows: 194

(1) The insurer or the claimant may appeal a decision of the Court of Queen’s Bench or appeal commission to the Court of Appeal on a question of law only. [ 18 ] This Court “lacks the jurisdiction to hear the appeal” on any ground other than on a question of law: Howells v Saskatchewan Government Insurance , 2008 SKCA 163 at para 6 , 324 Sask R 36.

Therefore, “the first order of business [is to] determine if the ground upon which the appeal is based gives rise to a question of law, for unless it does so there is no right in the appellant to seek judicial review of the decision of the tribunal, nor any power in the Court to conduct that review”: P.S.S. Professional Salon Services Inc. v Saskatchewan

(Human Rights Commission) , 2007 SKCA 149 at para 59 , [2008] 5 WWR 440 [ PSS Professional Salon Services ]. [ 19 ] Many of the arguments raised by Mr. Cop simply invite this Court to examine the sufficiency or weight of evidence that supported the Commission’s findings without identifying an extricable question of law. I am, however, able to distill from Mr. Cop’s notice of appeal and factum the following questions of law: (

a) Did the Commission err in law by rejecting the admissibility of certain evidence of Mr. Cop’s injuries? (

b) Did the Commission err in law by disregarding the evidence tending to show that Mr. Cop was unable to work for a time longer than 90 days following the accident? (

c) Did the Commission err in law by refusing to allow Mr. Cop to adduce evidence from an accident reconstruction expert? (

d) Did the Commission err in law by placing the onus on Mr. Cop to establish his entitlement to income replacement benefits? (

e) Did the Commission err in law by failing to award costs on a substantial indemnity basis? VI. Analysis A. Did the Commission err in law by rejecting the admissibility of certain evidence of Mr. Cop’s injuries? [ 20 ] Mr. Cop points out that on eight occasions the Commission’s decision concludes that there was “no objective evidence” or “no objective medical evidence” in relation to a particular issue of fact. Mr. Cop argues that “[w]hile the Commission did not indicate whether these findings of ‘no evidence’ were matters of admissibility, this finding is implicit”. Mr.

Cop argues, in substance, that the Commission erred in law by rejecting the admissibility of “subjective” evidence of injury suffered in the accident, or the relationship of injury to his continued disabilities. [ 21 ] I agree with Mr. Cop that a ruling that evidence is inadmissible raises a question of law. Issues relating to admissibility stand in contrast to questions as to the weight that is attached to evidence that is received. Only the former is subject to an appeal to this Court. In this regard, I cannot agree with Mr.

Cop that references by the Commission to the absence of medical evidence, or “objective” evidence, amount to statements by the Commission that other evidence Mr. Cop presented was inadmissible. [ 22 ] The first two instances where the Commission referred to “no objective medical evidence” or “no evidence” are found in paragraph 73 of the Commission Decision : [73] Even if we assume the Appellant suffered a mild concussion in the MVA, there is no objective medical evidence such as x-rays or MRI scans linking the Appellant’s current memory problems with a concussion.

The Appellant states he currently suffers memory problems, but there is no medical evidence diagnosing the current problem and more importantly, no evidence linking the memory problems to an injury sustained in the MVA. (Emphasis added) [ 23 ] One of the issues in the hearing was whether Mr. Cop had suffered a concussion in the accident. This issue bore on whether alleged ongoing memory problems and problems with an ability to focus were related to the accident—evidence of which was provided by Mr. Cop as well as through a report by Dr. Jo Nanson.

A review of the Commission Decision reveals that the Commission not only referred to Mr. Cop’s and Dr. Nanson’s evidence, but it considered what weight to attach to that evidence. This is apparent from the paragraphs that preceded the impugned passages and the specific consideration given by the Commission to Dr. Nanson’s evidence: [71] We are not convinced from the evidence that the Appellant sustained a concussion as a result of the MVA.

The hospital discharge document indicated the Appellant may have had a “possible concussion” based on the fact the Appellant had no recollection of what happened at the time of the accident and while in the hospital. The nurses [ sic ] notes suggested the Appellant did not have a concussion as the Appellant was conscious on arrival at the hospital, “oriented times 3” a couple of hours after the MVA and “restless but cooperative”. [72] Given that there was an odor of alcohol noted on the Appellant by the ambulance driver and the nurses, we agree and accept the testimony of Dr.

Sommer that intoxication is a more likely explanation for his lack of memory of the events surrounding the MVA as opposed to a concussion. … [86] We place little weight on the report by [Dr.

Nanson], as it is unclear what information she was provided with when she concluded the Appellant suffered a “severe” concussion. [ 24 ] I see nothing in any of the other references by the Commission to the absence of evidence or the absence of “objective” evidence to suggest that the Commission was making a ruling on admissibility , as opposed to determining the weight to be attached to evidence that was before it. [ 25 ] I therefore dismiss Mr. Cop’s argument that the Commission erred by rejecting the admissibility of evidence of Mr. Cop’s injuries. B.

Did the Commission err in law by disregarding evidence tending to show

that Mr. Cop was unable to work for a time longer than 90 days following the accident ? [ 26 ] Mr. Cop’s entitlement to income replacement benefits arises pursuant to s. 112 of the AAIA , as that provision existed at the date of the accident. On February 12, 1999, s. 112 provided in part as follows: 112

(1) A full time-earner is entitled to an income replacement benefit if, as a result of an accident, the full-time earner: (

a) is unable to continue the full-time employment he or she held at the time of the accident; (

b) is unable to continue any other employment that he or she held at the time of the accident in addition to the full-time employment mentioned in clause (a); ... [ 27 ] These provisions establish two basic preconditions to Mr. Cop’s entitlement to income replacement benefits: (

a) Mr. Cop’s inability to continue the full-time employment he held at the time of the accident; and (

b) a causal connection between that inability and the accident. [ 28 ] The Commission found that for a 90-day period following the accident these two preconditions existed and therefore Mr. Cop was entitled to income replacement benefits. The Commission’s analysis of these issues was limited to a single paragraph, as follows: [92] The Appellant sustained a fractured sternum as a result of the MVA. We accept Dr. Alport’s opinion that the Appellant would not be able to do heavy work, such as farm labour, for a period of 90 days following the MVA.

Accordingly, we find that the Appellant is entitled to income replacement benefits for a period of 90 days following the MVA. [ 29 ] The opinion referred to by the Commission had been provided by Dr. Alport in 2010. Dr. Alport had conducted a file review of Mr. Cop’s medical records then in the possession of SGI. After summarizing those records, Dr. Alport concluded as follows: The preceding comments are provided as a

summary of [Mr. Cop’s] medical file here at SGI. As you can see, he was admitted for a short stay in the hospital following the MVA. He was diagnosed with a fractured sternum. He presented with no other medical problems other than some confusion and a few lacerations. His confusion might be related to a blow to the head, and therefore a mild concussion, or the confusion might simply be a result of his intoxicated state. There is good documentation he sustained a laceration around his right knee that needed stitches. Provided he was not convicted of impaired driving, he would be entitled to an award for scarring.

Most of the other lacerations have likely healed without significant scarring, but if they did not, photographs of those might also result in a small permanent impairment award. There is no evidence of a significant brain injury. It is a bit of a judgment call to determine if a permanent impairment award would be payable for his confused state (i.e. minor concussion). There is no evidence of a significant neck injury. There is no evidence of a low back injury. There is no documentation of physical impairment or disability anywhere in the chart.

There is no documentation of follow up for his fractured sternum in the immediate months following the accident. Fractured sternums can be quite painful, but in all likelihood, he should have returned to heavy work in approximately 91 days (minimum 42 days, maximum 119 days - information obtained from The Medical Disability Advisor , Fourth Edition). I’ve provided this statistic for your interest - there isn’t any evidence he missed work at all following the accident . The above report is based on the information available to me at this time.

My opinion has been formulated by review of the information provided to me and does not include a direct interview or physical examination of the claimant. Should further information become available, I would be happy to review it. A review of further medical information in the future may, or may not change the opinions expressed in this current report. [ 30 ] The Commission characterized Dr. Alport’s opinion to be that Mr. Cop “would not be able to do heavy work, such as farm labour, for a period of 90 days following the MVA” ( Commission Decision at para 92).

The unstated further conclusion was that on day 91 following the accident, Mr. Cop was able to return to his pre-accident full-time employment. Although this further conclusion was left to implication, since it is a necessary precondition to the Commission Decision , I accept it to be a finding of fact made by the Commission. This finding of fact is rooted in Dr. Alport’s statement that “in all likelihood, [Mr. Cop] should have returned to heavy work in approximately 91 days”. In my respectful view, the finding of fact by the Commission that on day 91 following the accident Mr.

Cop was able to return to his pre-accident full-time employment evinces error of law on the part of the Commission. [ 31 ] One of the issues in PSS Professional Salon Services was when a challenge relating to a finding of fact may be said to raise a question of law.

Justice Cameron made the “all-important point” that a tribunal may commit an error of law in the course of making a factual determination, and that such determination may thereby give rise to a question of law, noting that to “suppose otherwise is to suppose the legislature intended … to empower the tribunal to engage in unfounded, unreasonable, or arbitrary fact-finding” (at para 69).

Justice Cameron provided examples of situations where a tribunal may err in law, such as where the tribunal makes a finding on the basis of no evidence or irrelevant evidence, or in disregard of relevant evidence, or upon a mischaracterization of relevant evidence, or on an unfounded or irrational inference of fact.

He then concluded: [70] Having regard for all of this, it becomes apparent that even though the right of appeal is confined to a question of law, and even though the appeal comes down to the tribunal’s findings of fact, the appellant’s case gives rise to a question of law and rests, therefore, on a tenable ground. It is not as though the question is whether the tribunal’s findings of fact are unreasonable or unsupported by the evidence in the sense of the sufficiency and weight of the evidence .

Rather, the question is whether the findings of fact are unreasonable in the sense the tribunal erred in principle by disregarding, overlooking, or mischaracterizing evidence material to its findings of fact . (Emphasis added)

[ 32 ] This approach has been consistently followed by this Court in the context of appeals pursuant to the AAIA .

See, for example only: Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 at para 5 , 310 Sask R 149; Saskatchewan Government Insurance v Royer , 2012 SKCA 42 at para 24 , 393 Sask R 96; and Germain v Saskatchewan Government Insurance , 2015 SKCA 84 at para 51 , 465 Sask R 48 [ Germain ]. [ 33 ] In this case, in my respectful view, the Commission erred in law by disregarding evidence that bore directly on the question of whether on day 91 after the accident, and for a presently undetermined time following that day, Mr.

Cop was unable to return to his pre- accident employment as a result of the injuries he suffered in the accident. [ 34 ] I begin by observing that Dr. Alport’s report was the product of a file review, and he qualified his opinion in several ways. Dr. Alport stated that there was “no documentation of physical impairment or disability anywhere in the chart” and “no documentation of follow up for his fractured sternum in the immediate months following the accident”. These statements reflect that Dr. Alport was working with incomplete information. [ 35 ] After Mr.

Cop’s discharge from Redvers Hospital, his adult son drove him to Winnipeg, where he stayed for several months. Within a few weeks, Mr. Cop underwent more tests at St. Boniface Hospital and was diagnosed with a fractured sternum, fractured trachea and fractured larynx. There is no reference to this in Dr. Alport’s report, nor was it otherwise considered by the Commission when it considered the nature and extent of Mr. Cop’s injuries and the period of time he suffered from accident-related disabilities. [ 36 ] None of the medical documentation that had been unavailable to Dr.

Alport when he rendered his report, but which bore on the weight it could be given, was referred to by the Commission when it analyzed the time for which Mr. Cop was entitled to income replacement benefits post-accident. For example only, Dr. Alport also does not refer to contemporaneous medical records that show that on December 12, 1999 (almost 300 days post-accident), Mr. Cop reported the existence of “numerous aches and pains all over [his] body particularly sternum which was fractured in MVA”. No consideration was given by the Commission to this evidence when it considered the time Mr.

Cop was unable to work because of his accident-related injuries. [ 37 ] Dr. Alport’s reference to the time that sternum fractures typically take to resolve is followed by the statement that “there isn’t any evidence he missed work at all following the accident”. Whatever was known to SGI in 2010 when Dr. Alport prepared his report, by the time of the hearing before the Commission, there was evidence that Mr. Cop had missed work following the accident. Moreover, there was evidence that strongly suggested Mr. Cop’s accident-related disabilities continued well after the 91-day period Dr.

Alport referred to as the likely date by which Mr. Cop “should have” returned to work. It was not incumbent on the Commission to accept this evidence. However, the Commission was required to take this evidence into account when making its decision and its failure to do so constitutes an error of law. I will mention several other aspects of the evidentiary record to further illustrate this point. [ 38 ] Prior to the accident, Mr. Cop had operated a mixed farming operation. Mr.

Cop testified that in the four years prior to the accident, he had done heavy labour with no health problems, and no problems with his chest in particular. Mr. Cop also stated that he had narrated television shows, written a stage play and poetry, and contributed literary articles to publications pre-accident. Mr. Cop’s testimony was that all of this pre-accident work was disrupted because of the injuries he had sustained in the accident. [ 39 ] Mr. Cop testified that after the accident he had been unable to look after his farming operation.

His evidence was that the cattle went on grass after the accident and subsequently they were sold in the fall as bred cows because he could not look after them. Mr. Cop testified that he had rented out his farm, as he could not do the tasks necessary to operate it such as sitting on a tractor, hooking up equipment or shoveling grain. Between 2000 and 2010, Mr. Cop had been involved in an equipment sale business. He testified that between 2008 and 2010, he had taken the farm back and had hired help to do the farm work. He again rented the land out between 2011 and 2014. In 2013, he sold half a

section of farmland and kept the remaining

section of land. Mr. Cop also testified that after the accident he had headaches daily and he did not do any more narrations or freelance work, as he could not concentrate or remember his lines. The Commission did not consider the testimony of Mr. Cop that directly contradicted the assumption made by Dr. Alport that Mr. Cop did not miss work post-accident. Moreover, the Commission did not attempt to square how the 91-day period within that Dr. Alport stated “in all likelihood, [Mr. Cop] should have returned to heavy work” sits with the evidence that, 200 or so days after the accident, Mr.

Cop had sold his cattle herd and had quit farming because his injuries prevented him from continuing as a farmer. If the Commission rejected Mr. Cop’s testimony because he was found not to be credible, it did not say so. [ 40 ] The examples I have given are illustrative, not exhaustive. The Commission’s obligation was to consider all relevant evidence as it determined the issues before it. [ 41 ] I accept the importance of the Court not coming too quickly to a conclusion that a tribunal has ignored relevant evidence.

As stated by Gascon J. in Teal Cedar Products Ltd. v British Columbia , 2017 SCC 32 at para 45 , [2017] 1 SCR 688 , “[c]ourts should … exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law”. However, here the Commission’s decision is bereft of a substantive analysis of the most material evidence that bore on Mr. Cop’s claim to benefits between the date of the accident and the date of the hearing. This evidence was known to the Commission and summarized by it as part of the review of the evidence found earlier in its decision.

However, a reading of the Commission’s decision as a whole does not allow for the conclusion that this evidence was in some way implicitly considered as part of the reasoning to limit Mr. Cop’s income replacement benefits to 90 days post-accident. My conclusion in this regard is reinforced by the different paths the Commission took in answering the two questions it posed to itself to answer. [ 42 ] As I mentioned earlier, s. 112 (as it was at the time) embedded two basic preconditions to Mr. Cop’s entitlement to income replacement benefits: (

a) Mr. Cop’s inability to continue pre-accident full-time employment; and (

b) a causal connection between that inability and the accident. The Commission’s most basic obligation was to determine if these two preconditions existed at each point in time between February 12, 1999 and the date of the hearing. The first question the Commission asked itself (whether Mr. Cop’s “ present condition” was caused by the accident) appears to proceed on the assumption that by the date of the hearing the first condition was met

(i.e., Mr. Cop was not able to carry on his pre-accident full-time employment) and it was only the question of causation that stood in the way of Mr. Cop’s entitlement to income replacement benefits. However, the Commission’s answer to the first question premises the denial of benefits on day 91 post-accident on a conclusion that on that day, and days following, Mr. Cop was able to work, and this was the basis for denying him disability coverage.

Since the basis for denying coverage was different on day 91 than at the time of the hearing of the appeal, it was incumbent on the Commission to explain which of the pre-conditions for recovery of income replacement benefits had not been met for the entirety of the time between these two points. [ 43 ] My conclusion is, therefore, that the failure of the Commission to have regard for evidence relating to Mr. Cop’s accident- related inability to work requires that there be a new hearing into all aspects of Mr. Cop’s claim. C. Did the Commission err in law by refusing to allow Mr.

Cop to adduce evidence from an accident reconstruction expert? [ 44 ] Because a new hearing is required, it is unnecessary to consider the argument made by Mr. Cop that the Commission erred in law by failing to allow him to reopen his case to present the evidence of an accident reconstruction expert. The Commission refused to admit this evidence because Mr. Cop sought to tender it after his case had closed. Presumably, if he determines that it is helpful to his case, Mr. Cop will seek to adduce it before he closes his case at the new hearing. [ 45 ] I will, however, address the final two issues raised by Mr.

Cop since they are likely to remain alive at a new hearing. D. Did the Commission err in law by placing the onus on Mr. Cop to establish his entitlement to income disability benefits? [ 46 ] The Commission began its analysis of its first issue by stating that Mr. Cop “has the burden, on a balance of probabilities, to establish that the MVA caused or materially contributed to his current complaints” ( Commission Decision at para 66). I understand from this that the Commission proceeded on the basis that Mr.

Cop carried the persuasive, or legal, burden of proving that the prerequisites for entitlement to benefits under s. 112 exist on a balance of probabilities. [ 47 ] The Commission’s decision to place the persuasive (legal) burden on Mr. Cop to prove his entitlement to benefits under the AAIA fits with general first principles. As stated by Ryan-Froslie J.A. in Ballantyne v Saskatchewan Government Insurance , 2015 SKCA 38 at para 15 , 457 Sask R 254, “[a]s a general rule, the onus of establishing entitlement to an insurance benefit in the first instance rests with the claimant”.

However, this “general rule” has not been applied in all cases, particularly in situations where insurers have admitted but later denied that qualifying conditions for disability insurance have been met. Mr. Cop refers to this line of case law in support of this ground of appeal. [ 48 ] Mr. Cop’s argument builds on the Commission’s finding that there was a 90-day time period when, because of the accident, Mr. Cop had not been able to perform his job functions. In this regard, Mr. Cop says in his factum that “[o]nce the Commission determined [Mr.

Cop] was entitled to Income Replacement Benefits for the fractured sternum [i.e., for 90 days], SGI had the onus to prove on a balance of probabilities that the Appellant was capable of the essential duties of full-time farming”. Mr. Cop places reliance on Job v Saskatchewan Government Insurance , 2004 SKCA 164 , 257 Sask R 85 [ Job ], Germain, and Lukian v Saskatchewan Government Insurance , 2015 SKCA 147 , 472 Sask R 171 [ Lukian ], to advance this line of argument. [ 49 ] In this case, prior to the hearing before the Commission, SGI had consistently denied Mr. Cop income replacement benefits.

In my respectful view, this is a complete answer to Mr. Cop’s argument respecting the operation of the onus in this case and each of the cases relied on by Mr. Cop is distinguishable on this basis. [ 50 ] In Job , the first of the cases cited by Mr. Cop, SGI paid income replacement benefits to a claimant for a period of time before discontinuing those benefits.

Justice Matheson, sitting on appeal in the first instance from SGI’s decision, found that having accepted the claimant was entitled to benefits on the basis of his accident-related disability, SGI had the onus to prove on a balance of probabilities that benefits were no longer payable, which onus he also held had been met. This Court held that Matheson J. correctly applied the shifting onus applicable in the circumstances of this case.

The critical distinction from this case is that, in Job , SGI had, in the first instance, admitted the claimant’s entitlement to benefits. [ 51 ] Lukian is similarly distinguishable. Chief Justice Richards stated in that case: [22] SGI agrees with Ms. Lukian and accepts that, having begun paying her income replacement benefits, it bore the onus of proving she was no longer entitled to receive them. More specifically, SGI agrees that, to successfully deny Ms.

Lukian income replacement benefits, it had the burden of establishing she was substantially able to perform the essential duties of her employment. [ 52 ] I fail to see how Germain , the third case cited by Mr. Cop, assists his case. At paragraph 42 of her judgment in Germain , Ryan- Froslie J.A. observed that in that case the Commission had “ correctly determined the onus was on Ms.

Germain to establish entitlement to an income replacement benefit and that, to do so, she must demonstrate on a balance of probabilities that she was as a result of the accident ‘unable to continue’ her full-time employment” (emphasis added). [ 53 ] I would conclude on this issue by observing that the existence of a persuasive (legal) burden of proof is seldom determinative in civil proceedings, where a court or tribunal is required to make determinations on the basis of a balance of probabilities.

The burden simply means that “a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard”: Sidney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, & John Sopinka, The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis, 2018) at 94. In civil

proceedings, if there is evidence that allows the trier of fact to reach a determination, the burden does not come into play at all. This pointwas made by Spence J. in Arnold v Teno, (SCC), [1978] 2 SCR 287 at 298, adopting as authority the judgment of ViscountDunedin in Robins v National Trust Co., (UK JCPC), [1927] 2 DLR 97 (PC) at 100-101 [Robins]. I will expand slightlyon the quote from Robins adopted by Spence J: Onus is always on a person who asserts a proposition or fact which is not self-evident. To assert that a man who is alive was born requiresno proof.

The onus is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was bornon a certain date if the date is material, requires proof; the onus is on the person making the assertion. Now, in conducting any inquiry, thedetermining tribunal, be it Judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on theside of the other, or, as it is often expressed, that in certain circumstances the onus shifts.

But onus as a determining factor of the wholecase can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onuswill determine the matter.

But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus hasnothing to do with it, and need not be further considered. (Emphasis added) [54] Given that at the new hearing the Commission is likely to be presented with an evidentiary record that is as robust as it was atthe first hearing, it is very likely that the allocation of the persuasive (legal) burden will not play a decisive role in the Commission’sultimate determination. E.

Did the Commission err in law by failing to award costs on a substantialindemnity basis? [55] The Commission made the following award of costs: [95] The Appellant is entitled to costs fixed at $1,000.00 based on the fact the injury to the sternum was never in dispute. SGI hadrequested on numerous occasions financial information from the Appellant which the Appellant never provided. This information wasnecessary for SGI to determine whether an income replacement benefit was payable. [56] Mr. Cop argues that the Commission erred in law by failing to award him costs on a substantial indemnity basis.

He relies onthe following

section of the AAIA as it existed as of the date of his accident. 198(5) Subject to the regulations, the insurer shall reimburse a claimant who is successful on an appeal pursuant to this

section or section199 for the claimant’s costs on a solicitor client basis. [57] Since the result of this appeal is that there must be a new hearing of Mr. Cop’s appeal to the Commission, the order of costspreviously made by the Commission must be set aside. However, because the issue of costs may arise at the conclusion of the newhearing, I will say something about the Commission’s decision on this point. [58] Section 198(5), as relied on by Mr. Cop, was removed from the AAIA in amendments made in 2002, with the result that thestatute states as follows: 193(11) Subject to the regulations, the insurer shall reimburse a claimant who is successful on appeal pursuant to this

section or section194 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 deemedto 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 costspursuant to The Queen’s Bench Rules or The Legal Professional Act, 1990. [59]

Section 96 of The Personal Injury Benefits Regulations, RRS c A-35 Reg 3 provides: 96(1) For the purposes of subsection 193(11) of the [AAIA], the insurer shall reimburse a claimant up to a maximum amount of $3,316 forall 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) [60] In Bear v Saskatchewan Government Insurance, 2004 SKQB 398, 255 Sask R 203 [Bear], Ryan-Froslie J. (as she then was)commented on this change in the AAIA, stating as follows: [15]

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

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

If the legislature had intended successful claimants to automatically receive solicitor/client costs, there would havebeen no need to repeal s. 198(5) which was a very clear provision to that effect. (Emphasis in original) [61] Bear was followed by this Court in Saskatchewan Government Insurance v Gardipy, 2019 SKCA 32. Ottenbreit J.A. stated for

the panel in that case: 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. (Emphasis added) [ 62 ] In Germain , the Court determined that the key date for the application of the new costs provisions was the date of the hearing: [24] The AAIA underwent a major revision in 2002 [the current Act ]. The amendments which came into effect on August 1, 2002, created the Commission and set out the rules pertaining to hearings before it.

Section 218.1(1) of the current Act is a transitional provision, which requires appeals from decisions made by SGI after August 1, 2002, (regardless of when the accident occurred) to be made in accordance with the appeal provisions of the current Act . Accordingly, while Ms. Germain’s entitlement to benefits is governed by the AAIA , 2001, the appeal procedure with respect to SGI’s decisions to deny and terminate her benefits is governed by Division 11 of

Part VIII of the current Act. [ 63 ] Therefore, since Mr. Cop appealed the decision of SGI after August 1, 2002, the appeal procedure is governed by the current statutory provisions. Accordingly, the Commission did not err in law by failing to award costs to Mr. Cop on a substantial indemnity basis. VII. Conclusion [ 64 ] For the reasons outlined above, the decision of the Commission is set aside, and Mr. Cop’s appeal from the decision of SGI is remitted back to the Commission for a new hearing. [ 65 ] Considering the value of the benefits at issue in this appeal, I would award Mr.

Cop his costs in this Court under Column 4. “Leurer J.A.” Leurer J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.