Mercier v Saskatchewan Government Insurance, 2020 SKCA 136

Court of Appeal for Saskatchewan Docket: CACV3493 Citation: Mercier v Saskatchewan Government Insurance , 2020 SKCA 136 Date: 2020-12-09 Between: Guy Mercier Appellant And Saskatchewan Government Insurance Respondent Before: Richards C.J.S., Caldwell and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On appeal from: 2019 SKAIA 21 , Regina Appeal heard: October 9, 2020 Counsel: Jonathan S. Abrametz for the Appellant Lynn M. Barlage for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Guy Mercier was injured in a car accident in November of 2013. He applied for and received no-fault Income Replacement Benefits [IRB] under

Part VIII of The Automobile Accident Insurance Act, RSS 1978, c A-35 [ Act ], and The Personal Injury Benefit Regulations, RRS c A- 35 Reg 3 [ Regulations ]. In September of 2015, Saskatchewan Government Insurance [SGI] reviewed Mr. Mercier’s claim and issued a Decision Letter terminating his IRB on the basis that he was able to return to work. Mr. Mercier appealed the Decision Letter to the Automobile Injury Appeal Commission [Commission], pursuant to s. 191 of the Act . The Commission upheld the Decision Letter and dismissed Mr.

Mercier’s appeal ( C.Y. v Saskatchewan Government Insurance, 2019 SKAIA 21 [ Commission Decision ]). [ 2 ] Mr. Mercier appeals to this Court from the Commission Decision. By virtue of s. 194(1) of the Act , such appeals are limited to questions of law. Mr. Mercier contends that the Commission made legal errors in the manner in which it assessed the evidence and made findings of fact, and also in the way it applied certain provisions of the Regulations when determining whether SGI had properly calculated his IRB . [ 3 ] For the reasons that follow, I would dismiss the appeal. II. FACTUAL BACKGROUND [ 4 ] Mr.

Mercier is the owner and operator of a company called Merc Developments [Merc]. Its business is landscaping, carpentry and construction work. As owner-operator, Mr. Mercier personally performs much of the physical work that Merc’s business entails. [ 5 ] On November 4, 2013, Mr. Mercier was involved in a head-on collision in Saskatoon. He suffered whiplash and a significant injury to his right shoulder. On January 14, 2014, he filed an application with SGI for No-Fault Injury Benefits, pursuant to

Part VIII of the Act. SGI paid IRB to Mr. Mercier in accordance with that Part. For the purpose of calculating Mr. Mercier’s IRB, SGI used the income he reported in his personal income tax returns, which was dividend income paid to him by Merc. [ 6 ] The injuries to Mr. Mercier’s right shoulder included a partially torn rotator cuff. Surgery was required to repair the damage. That surgery took place on April 16, 2015. Because Mr. Mercier’s employment often involved long days and heavy physical tasks, he was unable to work for a period of time following the surgery.

SGI arranged for him to be assessed by an occupational therapist and a physiotherapist. In consultation with these professionals, an assessment was conducted to measure the deficits in Mr. Mercier’s ability to work and to develop a rehabilitation plan. [ 7 ] As part of that plan, Mr. Mercier began physiotherapy on May 4, 2015. The initial progress was expected to be slow, but steady. By May 25, 2015, he was back to work at Merc, but only doing administrative tasks and none of the physical labour he would normally perform.

An Interdisciplinary Report was prepared on that date by his treatment team, which included a medical doctor, a chiropractor and a physiotherapist. This report said that Mr. Mercier was not meeting functional capabilities for physical tasks such as lifting, carrying, pushing and pulling, but noted that this was consistent with his stage of post-operative recovery. The treatment team recommended that Mr. Mercier begin an expanded rehabilitation program: At the discretion of the treatment team and based on their ongoing functional abilities evaluations, Mr.

Mercier should be able to return to the administrative aspects of his work early in the program and the more physical aspects of his work during the latter stages of the 16 week program. It is not expected that he will have any restrictions of any kind to activity at home or work at the conclusion of the 16 week

program. … It is recommended that Mr. Mercier begin an expanded rehabilitation program consisting of integrated manual therapy, regional, global and functional conditioning with educational support. The secondary program is lengthy at 16 weeks due to the very heavy nature of Mr. Mercier’s job demands in all positions and the expectation that as a contractor he must work long days…It is expected that Mr.

Mercier will do well with a lengthy and comprehensive program and should not have restrictions to his work activity at the conclusion of his program. [ 8 ] An Initial Assessment Report was prepared on June 10, 2015, by a physical therapist and an occupational therapist who had worked with Mr. Mercier on his rehabilitation. This report stated that the therapists expected Mr.

Mercier would be able to return to his pre-injury job “unrestricted”, working “full duties and hours by his discharge from [the] program on September 29, 2015”. [ 9 ] A Vocational Progress Report prepared for SGI by a Vocational Rehabilitation Consultant on August 4, 2015 stated that, a week prior, Mr. Mercier had reported that he felt he was “working at 65% of his job duties and demands”. [ 10 ] On August 19, 2015, a report was prepared by Mr. Mercier’s physiotherapist and occupational therapist [CBI Discharge Report]. The CBI Discharge Report indicated that Mr.

Mercier had “participated fully in his rehabilitation”. It also said he was “meeting all his job demands” and that he had “returned to working regular hours and duties”. Under the heading “Discharge Recommendation”, the report read: Mr. Mercier has been discharged with a home exercise program to maintain the gains achieved in treatment. He was provided with education regarding self-management of residual symptoms. Mr. Mercier is safe to continue working his full hours and duties as a construction business owner. Despite having ongoing biomechanical objective findings, Mr.

Mercier was satisfied with treatment and recovery and decided to be discharged. He was educated about risk and benefit of ongoing treatment. [Emphasis added] [ 11 ] A Vocational Progress Report dated September 1, 2015 and a Vocational Closure Report dated September 30, 2015 [OnTask Rehab Reports], authored by Mr. Mercier’s Vocational Rehabilitation Consultant, both observed that he had been “cleared to return to work at his regular hours and duties” and noted that he had not raised any concerns about returning to work. III. THE DECISION LETTER [ 12 ] On September 17, 2015, SGI issued the Decision Letter to Mr.

Mercier, explaining how his IRB had been calculated and why they were being terminated. The Decision Letter noted that SGI had considered Mr. Mercier’s Income Tax Returns for the years 2010– 2014, inclusive, and determined that his annual income for the purpose of calculating IRB entitlement was $20,000 based on dividends he received from Merc. The Decision Letter explained that Mr. Mercier’s IRB had been based on 90% of his net earnings, reduced in accordance with his capacity to complete the essential duties of his employment. It provided a full breakdown of when Mr.

Mercier’s IRB had been reduced, and by how much, as Mr. Mercier’s capacity to perform his employment had improved. With respect to the termination of Mr. Mercier’s benefits, the Decision Letter stated: As of August 19, 2015, you have been cleared to return to work; full hours and duties. Therefore, no further income replacement benefit is payable effective August 19, 2015. A cheque in the amount of $4,392.09 will arrive under separate cover. [ 13 ] Mr. Mercier appealed from the Decision Letter to the Commission. IV. THE COMMISSION DECISION [ 14 ] At the hearing before the Commission, Mr.

Mercier testified that, as of August 2015, he was still unable to perform the essential functions of his work. He said that, among other things, he could not perform such tasks as overhead painting and was unable to lift heavy objects above waist height. He denied having told any of his therapists that he was fully functional and said that none of them had tested him with respect to his ability to meet the physical demands of his work at any time after July 17, 2015. He also testified that his business revenue in the three years leading up to the accident was $90,000 per year. [ 15 ] Mr.

Mercier argued before the Commission that SGI erred in the Decision Letter by reducing and terminating his IRB. He said that, in light of his testimony, SGI had failed to establish that he was substantially able to perform the essential duties of his employment. He also argued that SGI had incorrectly calculated his IRB because it had done so by using the Regulations as they existed at the time his claim was filed, rather than at the time of the hearing. The applicable sections of the Regulations had been amended in 2017. Mr.

Mercier said that the effect of the amendment was that SGI was required to treat him as a “self-employed” earner, rather than as an employee of Merc, for the purpose of calculating his income to determine the amount of his IRB payment. He argued that performing the calculation based on the amendment would be a benefit to him because it meant his income would be determined by reference to his business revenues in accordance with ss. 19 and 21(3) of the Regulations , rather than by reference to salary, wages or dividends received, under s. 17 . Since this amendment was benefit-conferring, argued Mr.

Mercier, it ought to have been applied retrospectively. [ 16 ] Mr. Mercier also argued that SGI should not have standing before the Commission to cross-examine witnesses or take an adversarial position and sought solicitor-client costs if he were successful on the appeal. [ 17 ] The Commission dismissed Mr. Mercier’s appeal and awarded no costs in his favour. [ 18 ] In its reasons, the Commission began by stating the issues and reviewing the evidence before it. Turning to the first issue,

which the Commission had framed as being whether SGI was correct in reducing and terminating Mr. Mercier’s IRB, the Commission observed that SGI bore the onus of establishing that Mr.

Mercier was able to perform the essential duties of his employment, as set out in Lukian v Saskatchewan Government Insurance, 2015 SKCA 147 , 472 Sask R 171. [ 19 ] The Commission also noted that it was not bound by the rules of evidence and was permitted to accept hearsay evidence contained in documents and reports filed by the parties, as set out in s. 196.3 of the Act , and confirmed by this Court’s decision in Ernst v Saskatchewan Government Insurance, 2019 SKCA 12 , 34 MVR (7th) 180. The Commission then explained why it was satisfied that SGI was correct in reducing and terminating Mr.

Mercier’s IRB: [45] Although the Appellant testified that he was unable to do all job demands when his IRB were terminated by SGI on August 19, 2015, we prefer and accept the evidence contained in the CBI discharge report dated August 7, 2015 and the reports by Ms.

Jones from OnTask Rehab Inc. that the Appellant had returned to working regular hours and duties and was meeting all job demands by August 19, 2015. [46] We find that SGI has established that the Appellant was substantially able to perform the essential duties of his employment on August 19, 2015, the date the IRB were terminated by SGI. [47] Based on all the evidence, we conclude that SGI has established, pursuant to s. 131 (1) (

a) of the Act , that the Appellant was able to hold employment at Merc Developments Ltd. on the date the IRB were terminated by SGI. [48] We also find that SGI was correct in reducing the Appellant’s IRB by the Appellant’s capacity to complete the essential duties of his employment pursuant to s. 126 of the Act . Ms. Jones prepared a GRTW Plan which was approved by the Appellant. It was made abundantly clear to the Appellant by the wording in the GRTW Plan and by the correspondence with Ms. Jones that if he had any concerns or difficulties with the return to work plan that he should advise Ms. Jones.

Since the Appellant did not advise Ms. Jones during the time he was following the GRTW Plan of any return to work concerns, it was reasonable, in our view, for SGI to conclude that the Appellant was able to comply with the GRTW Plan and perform the essential duties of his employment as set out in the GRTW Plan. [ 20 ] As to the question of whether the 2017 amendments to the Regulations applied retrospectively, the Commission determined that they did not.

In that respect, the Commission expressed its conclusion as follows: [64] Although the presumption against reciprocity [ sic ] does not apply to the 2017 Amendments, for the reasons that follow it is our opinion that the 2017 Amendments do not have a retrospective application: • The Commission has a long standing practice of applying the Act and Regulations as they existed at the time of the accident in question (See: E.V. v Saskatchewan Government Insurance, 2017 SKAIA 8 at para. 45 . • We agree with the statement of the Commission in S.M. v Saskatchewan Government Insurance , 2009 SKAIA 12 at para. 38 : [38] In accordance with prior decisions of AIAC and as discussed above, the Appellant’s entitlement to benefits crystallized on the day of her vehicle accident.

She was at that moment entitled to all benefits that were at that date available to those injured in vehicle accidents and who were entitled to coverage under

Part VIII of The Automobile Accident Insurance Act . In effect, she was the beneficiary of a policy of insurance setting out those benefits. Thus, her entitlement to income replacement benefits, rehabilitation benefits, permanent impairment benefits, living assistance benefits and all other benefits then set out in the Act and the regulations crystallized at that time.

Those benefits were vested. • There is nothing in the language of the 2017 Amendments or the amending enactment (section 27(1) of Order in Council 569/2016) to suggest that the 2017 Amendments were intended by the legislature to have a retrospective application. [ 21 ] Having determined that the amendments to the Regulations did not have retrospective application, the Commission concluded that SGI had correctly calculated Mr. Mercier’s IRB. The Commission also concluded that SGI had standing it to examine, cross-examine, and re-examine witnesses and to present evidence in defence of the Decision Letter.

Since it had dismissed Mr. Mercier’s appeal, the Commission found that the question of costs did not need to be addressed. V. THE GROUNDS OF APPEAL [ 22 ] In his notice of appeal and his factum, Mr. Mercier raised several grounds of appeal from the Commission Decision.

In oral argument, however, he advanced only two submissions: (1) that the Commission made legal errors in its assessment of the evidence, and (2) that the Commission erred by determining that the 2017 amendments to the Regulations do not apply retrospectively. [ 23 ] In light of this Court’s decision in Saskatchewan Government Insurance v Shira, 2020 SKCA 88 , 11 WWR 204, Mr.

Mercier abandoned his grounds of appeal relating to the question of whether SGI has standing to question witnesses, call evidence and make submissions in appeals hearings before the Commission and the question of whether he was entitled to full solicitor-client costs. VI. STANDARD OF REVIEW [ 24 ]

Section 194 of the Act permits appeals to this Court from decisions of the Commission on questions of law only. That being the case, the governing standard of review is correctness ( Montgrand v Saskatchewan Government Insurance, 2017 SKCA 2 , 406 DLR (4th) 546; Van de Sype v Saskatchewan Government Insurance, 2020 SKCA 18 at para 67 [ Van de Sype ]). [ 25 ] Findings of fact cannot be the subject of appeals to this Court under s. 194 of the Act unless they are grounded in an error of law. A finding of fact may be grounded in an error of law when it is (

a) based on no evidence, (

b) made on the basis of irrelevant evidence or in disregard of relevant evidence, or (

c) based on an irrational inference of fact ( Murphy v Saskatchewan Government Insurance, 2008 SKCA 57 at para 5 , 310 Sask R 149; see also Saskatchewan Government Insurance v Royer, 2012 SKCA 42 at para 24 , 393 Sask R 96;

Germain v Saskatchewan Government Insurance, 2015 SKCA 84 at para 51, 465 Sask R 48; and Cop v Saskatchewan GovernmentInsurance, 2019 SKCA 75, at para 31, 2 WWR 396). VII. ANALYSIS A. Did the Commission make legal errors in its assessment of the evidence? [26] Mr. Mercier contends that the Commission made two legal errors in the way it assessed the evidence. [27] First, he says the Commission rejected his evidence “without any explanation whatsoever”.

Citing the decision in Hilo vCanada (Minister of Employment and Immigration) (1991), 130 NR 236 (Fed CA) [Hilo], he says statutory decision makers have a duty togive reasons that are “clear and unmistakable” when making an adverse credibility finding and that the Commission’s failure to do soamounts to legal error. Second, he says the Commission erred by concluding, on the basis of “speculative” evidence, that SGI haddischarged its onus. In this respect, Mr.

Mercier contends that SGI’s evidence about whether he was able to meet the physicalrequirements of his employment, at best, amounted to speculation about future events. I take this to be an argument that the Commissioneither misapprehended the evidence or drew from it an illogical inference of fact. [28] I am not persuaded that the Commission made either of the errors Mr. Mercier alleges. [29] Regarding the first alleged error, Mr.

Mercier acknowledges that the Commission made direct reference to his testimony anddetermined that it “prefer[red] and accept[ed]” the evidence contained in the various documents submitted by SGI, but he suggests theCommission was required to do more. He argues that the Commission was required to identify a specific flaw in his testimony or providesome other articulable reason why it was rejected. This boils down to a submission that the Commission’s reasons were inadequate. [30] I cannot agree with this submission.

While a statutory decision-maker’s reasons must be adequate, they need not be perfect.Adequacy always depends on the context and the purpose for which the reasons are given. Reasons do not need to refer to every piece ofevidence or every argument made in order to be adequate, but they must permit the parties to understand why the tribunal decided as it didand permit a reviewing body to test the validity of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland. andLabrador (Treasury Board), 2011 SCC 62 at para 18, [2011] 3 SCR 708).

Reasons given by an administrative tribunal will be sufficientwhere they demonstrate that the tribunal considered the important features of the relevant evidence and permit the parties to understandhow, why or on what basis it reached its conclusion (Canadian Natural Resources Limited v Campbell, 2018 SKCA 67 at para 35). [31] In this case, the reasons given by the Commission meet the requirement for adequacy, both in general and specifically as theyrelate to the discrete point of why SGI’s evidence was accepted over Mr. Mercier’s. While the Commission did not describe any particularflaw in Mr.

Mercier’s testimony, it devoted a significant portion of its reasons to a detailed review of the evidence before it, including allthe documentary evidence filed by SGI and the testimony given by Mr. Mercier (paras 9–35 and 40–44). [32] I do not view the situation here to be akin to that in Hilo, where the tribunal was held to have erred by failing to give detailedreasons for rejecting evidence that was not contradicted. In this case, Mr.

Mercier’s testimony regarding his ability to return to work wasdirectly contradicted by the documentary evidence filed by SGI, which included the Vocational Progress Report, Vocational ClosureReport, CBI Discharge Report and the OnTask Rehab Reports mentioned earlier in these reasons. [33] Where there are conflicting versions of the events in the evidence before a trier of fact, the considered and reasoned acceptanceof one version can be a sufficient basis for rejecting a contrary version, even if the contrary version contains no obvious flaws (See: C.(R.)v McDougall, 2008 SCC 53 at para 86, [2008] 3 SCR 41; R v R.D., 2016 ONCA 574 at para 19, 342 CCC (3d) 236; R v J.J.R.D. (2006), (ON CA), 215 CCC (3d) 252 at para 53 (Ont CA)).

In this case, the major point in issue - and material conflict in theevidence - related to whether Mr. Mercier had been able to return to the performance of the duties required by his employment. TheCommission, having thoroughly reviewed the salient details of the relevant evidence, explained how it resolved the conflict, by statingthat it preferred and accepted the evidence contained in the Vocational Progress Report, CBI Discharge Report and the OnTask RehabReports.

In the context of the evidence and the issues before it, this was an adequate treatment of the matter. [34] Regarding the second alleged error, namely that the Commission’s decision was based on speculation, there was clear evidencebefore the Commission that, as of August 19, 2015, Mr. Mercier had been discharged from his rehabilitation program, was consideredsafe to return to work, was meeting his job demands and had returned to working regular hours and duties.

There was clear evidence thathe was satisfied with his treatment and recovery and that had he raised no concerns about his rehabilitation after that point with any of theprofessionals who had been treating him. This was not speculation. It was evidence that the Commission was entitled to, and did, accept.Accordingly, it cannot be said that the Commission’s conclusion regarding Mr. Mercier’s ability to hold employment on the date his IRBwas terminated was the product of either misapprehension of evidence or an irrational inference. [35] In the result, I reject Mr. Mercier’s first ground of appeal. B.

Did the Commission err by determining that the 2017 amendments to theRegulations do not apply retrospectively? [36] Mr. Mercier argues that the Commission erred by determining that certain amendments to the Regulations do not apply“retrospectively”. The amendments in question, The Personal Injury Benefits (Miscellaneous) Amendment Regulations, Sask Reg 99/2016[Amendments], came into force on January 1, 2017. Certain provisions of the Amendments relate to the calculation of an insured person’sIRB. They define who is a “self-employed earner” and how IRB are calculated for self-employed earners. Mr.

Mercier says that, becausethe Regulations are benefit-conferring, the Amendments ought to have been applied retrospectively and, if the Commission had done so, itwould have determined his annual income to be $90,000, rather than $20,000, for the purpose of calculating his IRB.

[ 37 ] I also reject Mr. Mercier’s argument under this ground of appeal. As I will explain, Mr. Mercier’s argument on this point was not well-developed and, on the facts of this case, what he sought was retroactive application of the Amendments, not retrospective application. There is a strong presumption that legislation and regulations are not to have retroactive application and Mr. Mercier has not persuaded me that the presumption is rebutted in this case. 1. The relevant provisions of the Act, Regulations and Amendments [ 38 ]

Section 113 of the Act speaks to the entitlement to and the calculation of IRB for a person who is unable to continue employment following an accident. As relevant to this case, it reads as follows: 113(2) An insured is entitled to an income replacement benefit if, as a result of an accident, the insured: (

a) is unable to continue an employment held by the insured at the date of the accident; … 113(3) The insurer shall calculate the income replacement benefit for the employment that the insured is unable to continue on the following basis: (

a) if the insured holds employment in the employ of another, the yearly employment income of the insured calculated on the basis of the income the insured earned or would have earned from all employments the insured held or would have held but for the accident in the first 180-day period after the accident; (

b) subject to the regulations, if the insured holds an employment as a self-employed earner, the greater of: (

i) the yearly employment income determined in accordance with the regulations for an employment of the same class as the primary employment the insured held or would have held but for the accident in the first 180-day period after the accident; and (ii) the yearly employment income the insured earned or would have earned from all his or her employments held at the date of the accident… [ 39 ] Sections 17 , 18 and 19 of the Regulations define how a claimant’s yearly employment income is determined for the purpose of calculating IRB. [ 40 ]

Section 17 applies where, as set out in s. 113(3) (

a) of the Act , the insured “holds employment in the employ of another” at the date of the accident. Under s. 17(2) of the Regulations , in such circumstances, the insured person’s yearly employment income is determined on the basis of regularly payable salary, wages, bonuses, commissions and the like. [ 41 ] On the face of it, under s. 113(3) (

b) of the Act , where the insured holds employment as a self-employed earner, that insured’s yearly employment income is determined to be the greater of their net business income ( s. 18 of the Regulations ) or the income determined in accordance with “the classes of employment and the corresponding yearly employment incomes set out in Appendix A” of the Regulations ( s. 19(1) (

a) of the Regulations ) . For a self-employed insured with more than 10 years experience, the corresponding yearly employment income set out in Appendix “A” is $39,884 for a “Carpenter” and, for a “Contractor and Supervisor” in the “Carpentry Trades”, it is $49,816. [ 42 ] At the time of Mr. Mercier’s accident, the Regulations did not contain a definition of the term “self-employed earner”. Nor did they contain a definition of that term as of the date of his claim or the date on which SGI terminated his IRB by way of the Decision Letter. SGI calculated Mr. Mercier’s entitlement to IRB under s. 113(

a) of the Act and s. 17 of the Regulations , effectively treating him as an employee of Merc, because his personal income tax returns disclosed that, during the relevant time frame, he had derived his employment-related income by way of a dividend received from Merc. By doing so, SGI determined Mr. Mercier’s yearly employment income to be $20,000. Mr. Mercier conceded before the Commission that SGI had correctly interpreted and applied the Regulations if the version in force at the time of his accident was applicable. [ 43 ] However, Mr.

Mercier argued before the Commission, as he does before this Court, that his income for the purpose of calculating his IRB entitlement ought to have been determined by applying the post- Amendments version of the Regulations , even though that version did not come into force until January 1, 2017. The Amendments made several changes that Mr. Mercier contends are of significance in this appeal. In particular, they added

definitions for the terms “self-employed”, “self-employment” and “self-employed earner” in s. 2(8). Mr. Mercier says that he would have satisfied the definition of a “self-employed earner” if the Amendments had been applied to the determination of his entitlement to IRB. [ 44 ] The Amendments also added a definition of the term “business revenues” in s. 2(1)(b.1), and new wording in s. 21(3) , that changed the manner in which employment income is calculated for self-employed earners in some circumstances. The amended version reads, in relevant part: 21(3) Notwithstanding

section 19, for the purpose of calculating the insured’s yearly employment income pursuant to subclauses 113(3) (b)(i) … of the Act , if the insured has been self-employed for 3 years or more, the insured’s yearly employment income determined in accordance with the classes of employment set out in Appendix A must not exceed business revenues. 2. Should the Amendments apply to Mr. Mercier’s circumstances? [ 45 ] Mr.

Mercier testified before the Commission that he had been self-employed as a carpenter for more than 10 years and that his business revenues exceeded the prescribed amount in Appendix “A” for that class of employment. According to him, if the post- Amendments version of the Regulations had been applied for the purpose of calculating his IRB entitlement, his income would have been determined on the basis of him being a “self-employed earner” under s. 113(3) (b)(

i) of the Act rather than as someone who “holds

employment in the employ of another” under s. 113(3)(a). Mr. Mercier says this would have led to his income being calculated inaccordance with ss. 19(1)(

a) and 21(3) of the Regulations, resulting in a base income of $90,000, rather than the base income of $20,000SGI had calculated in accordance with s. 17. [46] There is an obvious flaw in this part of Mr. Mercier’s argument, because it is premised on a misinterpretation of the effect of s.21(3). Mr. Mercier reads that

section as meaning that, if his business revenues exceed the prescribed amount for the class of income listedin Appendix “A” of the Regulations, then the business revenues determine his yearly employment income for the purpose of calculatinghis IRB entitlement. However, I am not persuaded that s. 21(3) supports that

interpretation. It says that, when yearly employment incomeis determined by reference to the classes of employment in Appendix “A”, it “must not exceed” business revenues. As I do not need todefinitively interpret the provisions governing the determination of self-employment income for the purposes of this argument, I willsimply say that they seem to operate such that, if business revenues are greater than the amount listed in Appendix “A”, then yearlyemployment income is capped at the Appendix “A” amount.

But if business revenues are less than the amount listed in Appendix “A”,then the yearly employment income cannot be greater than the business revenues. [47] All of that said, Mr. Mercier’s

interpretation of s. 21(3) has no impact on the question of whether the Amendments should havebeen applied to the determination of his IRB entitlement; it would affect only the calculation of quantum of IRB, if he were entitled to it. [48] On that issue, Mr. Mercier acknowledges that there is a common law presumption that legislation does not applyretrospectively, but says the presumption ought not to apply here because the Amendments are benefit-conferring (see Brosseau v AlbertaSecurities Commission, (SCC), [1989] 1 SCR 301 [Brosseau]) and, as such, a retrospective

interpretation is consistentwith a broad and generous

interpretation of the Act (see Holt v Saskatchewan Government Insurance, 2018 SKCA 7, 75 CCLI (5th) 175). [49] In analyzing Mr. Mercier’s argument on this point, it is important to proceed from the correct footing. By that, I mean the firstdetermination that must be made is whether he is actually seeking retrospective application of the Amendments, as opposed to retroactiveapplication. Retroactive application means that new legislation operates backwards in time so as to change the legal effect of events orcircumstances in the past.

Retrospective application means that new legislation operates only forward in time so as to change the ongoinglegal effect of past events or circumstances into the future (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto:LexisNexis 2014) (QL) at §25.24 [Sullivan]; Épiciers Unis Métro–Richelieu Inc., division “Éconogros” c Collin, 2004 SCC 59 at para 46,[2004] 3 SCR 257, citing E. A.

Driedger, “Statutes: Retroactive Retrospective Reflections” (1978) 56 Can Bar Rev 264 at 268-69). [50] As I have already discussed, the Commission made no error when it confirmed SGI’s decision to terminate Mr. Mercier’s IRBeffective August 19, 2015. Accordingly, as of that date, he was no longer entitled to IRB and no further benefit payments wereforthcoming. Nothing about Mr. Mercier’s situation straddled the coming-into-force of the Amendments; the accident that gave rise to hisclaim was a past event and the legal effect of SGI’s decision regarding his IRB was not an ongoing one. What Mr.

Mercier sought beforethe Commission, and what he urges this Court to do, is apply the Amendments in a way that would operate backward in time to change thepast legal effect of the circumstances or events that had determined the amount of IRB, even though his entitlement to IRB had endedbefore the Amendments came into existence. In short, what he seeks is retroactive application of the Amendments, not retrospectiveapplication. [51] This distinction is important. There is a strong presumption against the retroactive application of legislation.

It may be rebuttedby “clear, express language indicating that the legislation is meant to apply retroactively or by necessary implication” (Sullivan, at §25:25;see also Martelli v Martelli, (BC CA), [1982] 2 WWR 638 (BCCA); Barbour v University of British Columbia 2010BCCA 63, 316 DLR (4th) 354; leave to appeal to SCC refused ; and Yeager v Canada (Public Safety and EmergencyPreparedness), 2019 FCA 98 at para 23, 54 Admin LR (6th) 1). In that regard, two matters are fatal to Mr. Mercier’s argument.

First, thepresumption against retroactive application of legislation is not defeated by the mere fact that a change is benefit-conferring. It is onlyrebutted by clear language in the enactment or by necessary implication. Second, perhaps because his argument was not particularly well-developed on this issue, Mr.

Mercier has not pointed to anything that would indicate that the Legislature intended the Amendments toapply retroactively or to otherwise affect not only ongoing and future acts but also facts that are in the past (see Baker Petrolite Corp. vCanwell Enviro-Industries Ltd., 2002 FCA 158 at para 19, 211 DLR (4th) 696). [52] In the result, I am unable to conclude that there is any merit to this ground of appeal. VIII. CONCLUSION [53] For the foregoing reasons, the appeal is dismissed. Since SGI did not request costs, none are awarded. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “Richards C.J.S.” Richards C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.