Ronda Silzer Appellant v. Saskatchewan Government Insurance, 2021 SKCA 59

Court of Appeal for Saskatchewan Docket: CACV3303 and CACV3337 Citation: Silzer v Saskatchewan Government Insurance , 2021 SKCA 59 Date: 2021-04-13 Between: Ronda Silzer Appellant And Saskatchewan Government Insurance Respondent Before: Schwann, Leurer and Kalmakoff JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Kalmakoff On appeal from: 2018 SKAIA 33 and 2018 SKAIA 46 , Regina Appeal heard: December 3, 2020 Counsel: Ronda Silzer acting on her own behalf Dale Brown for the Respondent Schwann J.A. I. Introduction [ 1 ] This is an appeal brought by Ronda Silzer pursuant to s. 194(1) of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ Act ], from two decisions of the Automobile Injury Appeal Commission [Commission]. The first decision, made on August 17, 2018 ( Silzer v Saskatchewan Government Insurance , 2018 SKAIA 33 [ Causation Decision ]), concerned whether Ms.

Silzer’s injuries were caused by a motor vehicle accident, and the second was a limitation ruling in relation to a series of decision letters that had preceded the final causation determination ( Silzer v Saskatchewan Government Insurance , 2018 SKAIA 46 [ Limitation Decision ]). [ 2 ] Appeals under s. 194(1) of the Act are limited to questions of law. Ms. Silzer contends the Commission made several errors of law in its assessment of the evidence and its findings of fact in connection with both decisions.

She also submits that the decisions must be set aside because of alleged bad faith actions taken by Saskatchewan Government Insurance [SGI]. [ 3 ] For the reasons that follow, I would dismiss both of Ms. Silzer’s appeals. A. Factual Background [ 4 ] On August 14, 2014, Ms. Silzer was involved in a motor vehicle accident in Moose Jaw, Saskatchewan, when another vehicle failed to yield, passed through an intersection and struck the passenger side of her vehicle [MVA]. The passenger in Ms. Silzer’s vehicle suffered a broken arm. Ms. Silzer was assessed by emergency medical personnel who attended the accident.

They saw no reason for immediate concern but encouraged Ms. Silzer to be checked out at a hospital. She declined to do so. [ 5 ] Ms. Silzer saw her family doctor, Dr. Wael Guirguis, four days after the MVA, complaining of a dull, achy feeling in her back. Under the “observations” portion of her chart, Dr. Guirguis recorded “small skin abrasions on the thoracic area of the back and some tenderness over T10, 11, 12 and the paravertebral muscles”. He initially diagnosed Ms. Silzer as suffering from a thoracic spinal injury.

The thoracic area is the upper back around the shoulder blades. [ 6 ] As described more fully below, Ms. Silzer saw Dr. Guirguis on several more occasions. By late August of 2014, she had begun to complain of memory problems and, for the first time, on October 20, 2014, reported pain in her lower back. Dr. Guirguis recorded the following observation on that date: “Back: normal ROM, tenderness over L4, 5 S1 and right paravertebral muscles Xray showed Disk degeneration and Arthritis, no acute changes”. [ 7 ] Ms. Silzer’s lower back pain continued.

She eventually had back surgery 11 months later in September of 2015. [ 8 ] Ms. Silzer applied for and received rehabilitation, income replacement and living assistance benefits under

Part VIII of the Act . SGI issued seven decision letters [collectively, the “2015 Decision Letters”] terminating the various benefits that she had been receiving. [ 9 ] On June 24, 2015, Ms. Silzer opted to pursue a mediated resolution to the 2015 Decision Letters pursuant to s. 190 of the Act . Mediation proved unsuccessful and concluded on March 16, 2016. Pursuant to s. 191(1) (

b) of the Act (as was then in effect in 2015), Ms. Silzer had 60 days from the date of the mediator’s written statement declaring the mediation complete to appeal from the 2015 Decision Letters. As discussed below, Ms. Silzer asserts she had appealed those decisions by filing her appeal documents with SGI (as opposed to the Commission) on May 18, 2016. [ 10 ] SGI issued two additional decision letters on March 14 and 15, 2016. Those letters dealt with the cause of Ms. Silzer’s injuries. Ms. Silzer appealed those decisions to the Commission, arguing she had suffered serious injuries to her lower back and head in the MVA

and that her benefits should continue because she was unable to return to work. She adamantly maintained that a causal connection existed between her physical injuries and the MVA. SGI argued Ms. Silzer had suffered a soft tissue injury to the thoracic area of her back that had resolved itself shortly after the MVA. B. The Causation Decision [ 11 ] Ms. Silzer’s appeal on causation came before a panel of three members of the Commission. [ 12 ] Ms. Silzer testified on her own behalf.

She described how her life and health had dramatically deteriorated following the MVA and how constant pain prevented her from pursuing her livelihood and the activities she had previously enjoyed. Prior to the MVA, Ms. Silzer had worked in the construction industry, taught figure skating and coached power skating. Ms. Silzer called her mother as a witness to support her testimony about having experienced back problems and how she (the mother) had to financially support her. Ms. Silzer relied on various medical reports and associated diagnostic records, mostly from her family physician, Dr. Guirguis.

She also relied on a radiology report that had detected a compression fracture in her back and which stated, “it can be related to recent MVA”. In addition to this evidence, Ms. Silzer pointed to the results of a bone density scan that Dr. Guirguis had ordered, which purported to support his conclusion that the compression fracture was caused by the MVA. Finally, Ms. Silzer called Dr. Kahled Rodwan, the orthopedic surgeon who had performed back surgery on her in September of 2015. [ 13 ] However, in spite of her extensive reliance on Dr. Guirguis’s opinion, Ms.

Silzer also argued that his opinion was not reliable in relation to the matter of her headaches and other head-related symptoms because he had failed to take assiduous notes. [ 14 ] For its part, SGI call Dr. Jill Matthews as a witness. Based on her review of Ms. Silzer’s medical files, records and diagnostic reports, Dr. Matthews concluded that Ms. Silzer had suffered a soft tissue injury due to the MVA that had resolved itself by February of 2015. With regard to Ms. Silzer’s lower back concerns, Dr.

Matthews was of the considered view that it was not related to the MVA but to a synovial cyst that was caused by degenerative changes in Ms. Silzer’s lower back. In her opinion, the compression fracture was not caused by the MVA, as alleged by Ms. Silzer and Dr. Guirguis. Finally, Dr. Matthews concluded Ms. Silzer’s memory loss was most likely due to chronic marijuana use. [ 15 ] The Commission preferred the evidence of Dr. Matthews over that of Dr. Guirguis and made the following findings of fact: (

a) Ms. Silzer did not complain of localized pain in her lower back immediately after the MVA when she saw Dr. Guirguis; (

b) it was unlikely Ms. Silzer would not have reported the immediate onset of localized back pain in her lower back when she first saw her doctor, or that her doctor would have failed to make a note of this complaint or to have ordered an x-ray in relation to it; (

c) Ms. Silzer’s lower back problem, which eventually resulted in back surgery, was unrelated to the MVA and that “much of [Ms. Silzer’s] pain and disability in the past and present is unrelated to the MVA” (at para 38); (

d) as opined by Dr. Matthews, the “delay of immediate localized pain is inconsistent with a traumatic fracture and it is more likely than not the compression fracture was pre-existing and caused by a degenerative condition” (at para 39); (

e) it was more likely than not that Ms. Silzer’s compression fracture was not caused by the MVA; and (

f) it was more likely than not that Ms. Silzer did not suffer a head injury in the MVA. [ 16 ] Based on those findings, the Commission found it was more likely than not that Ms. Silzer did not suffer the types of injuries she asserted because of the MVA. Her appeal was accordingly dismissed without costs. In obiter the Commission noted that many of the issues raised by Ms. Silzer’s appeal from the 2015 Decision Letters may be moot in light of its causation ruling, but left “both parties the option to speak to a further hearing” (at para 45). C. The Limitation Decision [ 17 ] Ms.

Silzer pursued her appeal from the 2015 Decision Letters in spite of the Causation Decision . A hearing was convened before Don McKillop, Q.C., on October 24, 2018, who sat as a one-person panel of the Commission pursuant to s. 196.2(1) of the Act on the narrow issue of whether those remaining appeals were statute barred due to the passage of time. [ 18 ] Ms. Silzer testified that she had obtained the prior permission from Janessa Bell, an official with the Commission, to drop off her appeal application with SGI’s South Pasqua Street office in Regina and that she had done so around 11:00 a.m. on May 18, 2016. Ms.

Bell could not recall having had the sort of discussion Ms. Silzer described in her testimony. While Ms. Silzer produced telephone records to buttress her testimony, Mr. McKillop found those records unpersuasive because they said nothing about the content of the telephone conversations. [ 19 ] Mr. McKillop made two preliminary findings of fact: (

a) the deadline for Mr. Silzer to appeal the 2015 Decision Letters was May 19, 2016; and (

b) Ms. Silzer’s appeal application bore the Commission’s May 25, 2016, date stamp, which he said represented the date of receipt. [ 20 ] Mr. McKillop accepted the testimony of the Commission witnesses stating that it was unlikely Ms. Silzer “was given the permission she described” (at para 13). He expressly rejected Ms. Silzer’s testimony about having received permission to file her appeal at the SGI Pasqua Street office and concluded by stating as follows: “Having concluded that [Ms. Silzer] has not demonstrated that she has had the Commission’s permission to deliver the application to SGI, the appeal must be considered out of time and is dismissed” (at

para 14). [ 21 ] In light of his conclusion, Mr. McKillop stated that he did not “need to decide” whether Ms. Silzer had actually delivered her appeal application to the SGI office on the date alleged (at para 15). II. Jurisdiction and Standard of Review [ 22 ]

Section 194 of the Act permits an appeal to be taken to this Court from a decision of the Commission on a question of law: Appeal to the Court of Appeal 194

(1) With leave of a judge of the Court of Appeal, 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.

(2) An appeal pursuant to this

section must be made within 30 days after the date of the decision of the Court of Queen’s Bench or appeal commission or within any further time that a judge of the Court of Appeal may allow. [ 23 ] This Court lacks jurisdiction to hear an appeal from a decision made by the Commission 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. This means that I must first determine if the grounds on which Ms. Silzer’s appeal is based give rise to questions of law; if not, there is no jurisdiction to proceed: P.S.S.

Professional Salon Services Inc. v Saskatchewan (Human Rights Commission) , 2007 SKCA 149 at para 59 , [2008] 5 WWR 440, leave to appeal to SCC refused, [2008] 2 SCR xi [ PSS Services ]. [ 24 ] While an appeal from a finding of fact is not permitted under s. 194 , factual findings may give rise to an error of law in the limited circumstances described in Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 , [2008] 7 WWR 401 [ Murphy ]: [5] Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact.

However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (

a) is based on no evidence; (

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

c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al. , 2007 SKCA 149 , (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008 [leave to appeal SCC dismissed, [2008] 2 SCR xi]).

The right of appeal, of course, extends to such errors of law. [ 25 ] With the release of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ], it is now clear that where the operative legislation allows for a statutory appeal – with leave or as of right – the Legislature is taken to have intended that the usual appellate standards of review will be applied.

This means that with respect to questions of law, the correctness standard of appellate review is applicable (at para 37): see also Van de Sype v Saskatchewan Government Insurance , 2020 SKCA 18 [ Van de Sype ]. III. Issues [ 26 ] In relation to the Causation Decision , Ms. Silzer argues the Commission misapprehended or misinterpreted the evidence and thereby erred in law. Without amending her notice of appeal, in written argument Ms. Silzer expanded on her grounds of appeal such that she now advances bad faith as an overarching basis to set aside the Causation Decision . More particularly, Ms.

Silzer asserts that SGI breached its obligation as a first party insurer and acted in bad faith by (

a) forcing her to litigate to attain her statutory rights and benefits in the face of objective medical evidence that she had suffered a traumatic compression fracture caused by the MVA, and (

b) denying her benefits, which resulted in unnecessary physical suffering and financial harm. [ 27 ] Ms. Silzer raises similar bad faith arguments in relation to the Limitation Decision . Here, she argues that SGI acted in bad faith and obstructed justice by purposefully failing to deliver her appeal application to the Commission office until after the appeal period had expired. Ms.

Silzer also asserts that SGI’s legal counsel committed perjury by denying the existence of surveillance cameras at SGI’s Pasqua Street office and by failing to produce the video surveillance footage of the lobby of that building, which, she maintains, would have established that she had indeed filed her appeal with SGI on May 18, 2016. Ms. Silzer did not pursue the perjury argument in her oral submissions in this Court. IV. Analysis A. The Commission Decision 1. Bad faith [ 28 ] Ms. Silzer identifies the following examples of how SGI had allegedly acted in bad faith.

She points to the arbitrariness of the 180 day review provision contained in s. 177 of the Act , the unnecessary suffering – both physical and financial – she has endured over her six-year fight with SGI, and the Commission’s reliance on what she considers to be a biased medical witness. She feels the structure and operation of the no-fault system does not foster recovery or well-being, as it should. Ms. Silzer contends the no-fault insurance scheme is seriously flawed, the Act is tilted in favour of SGI and its processes are unforgiving for self-represented individuals such as herself.

She describes SGI’s tactics as gaslighting and abusive. [ 29 ] Ms. Silzer characterizes her appeal to this Court as a call for justice for herself and all self-represented litigants who are forced

to deal with SGI. Relying on Saskatchewan Government Insurance v Wilson, 2012 SKCA 106, [2013] 5 WWR 286, she asks this Court“to set a new precedent” by imposing a significant penalty for SGI’s bad faith actions. [30] To place Ms. Silzer’s argument in a legal context, I understand it to be either an attempt to reconfigure her appeal into a claimfor damages based on an alleged breach of SGI’s duty of good faith or to introduce a fresh legal argument on appeal as a justification forthis Court to set aside the two decisions.

There are several very fundamental reasons why neither approach can succeed. [31] Dealing with the first of the two alternatives, an appeal to this Court from a Commission decision is, as noted above, confinedto questions of law. This Court does not have the jurisdiction to entertain first-instance claims, such as Ms. Silzer’s apparent claim fordamages arising from SGI’s alleged breach of its duty of good faith. [32] There are several other reasons to reject any attempt to introduce the alleged breach of a duty of good faith as a justification forthis Court to set aside the two Commission decisions. First, Ms.

Silzer did not assert bad faith as a ground of appeal in her initiatingdocuments with this Court. Refashioning her grounds of appeal without leave of this Court into something substantially different isproblematic. This point was made in Ernst v Saskatchewan Government Insurance, 2019 SKCA 12, 34 MVR (7th) 180 [Ernst]. [8] Ms. Ernst, by filing the factum she has, has made this appeal something substantially different than what was set forth in her notice ofappeal. Moreover, the case that she attempts to argue before us is substantially different than was argued before the Commission.

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

See also Zelinski v Pidkowich, 2020 SKCA 42 at para 23. [33] Rule 13 of The Court of Appeal Rules allows for a notice of appeal to be amended at any time with leave of the Court or a judgeof the court. While the Rule is somewhat open-ended in its wording, it has been interpreted with restraint. In Civil Appeals inSaskatchewan: The Court of Appeal Act and Rules Annotated, 1st ed (Regina: Law Society of Saskatchewan Library, 2015), theHonourable Stuart Cameron provided two examples to illustrate why a position of restraint is called for.

First, a “notice of appeal cannotbe amended to include a ground of appeal raising an issue that was not raised at trial unless the court is satisfied beyond doubt that allpossible evidence relevant to the issue is before the court …” (at 122): see also Howell v Stagg, (SK CA), [1937] 2WWR 331 (Sask CA).

Where the notice of appeal has not been amended, a newly introduced ground of appeal self-evidently deprives therespondent of the opportunity to consider and address the argument in advance. [34] Second, as a general principle, a party cannot present an entirely new argument for the first time on appeal: R v Perka, (SCC), [1984] 2 SCR 232 at 240.

This principle of law has been followed in numerous decisions from this Court: see, forexample, Meier v Saskatchewan Agrologists, 2016 SKCA 116 at para 28, 405 DLR (4th) 506 [Meier]; United Steelworkers v Comfort CabLtd., 2017 SKCA 45 at para 40, 414 DLR (4th) 688; and Piche v Saskatchewan Government Insurance, 2020 SKCA 53 at para 146, leaveto appeal to SCC refused, [Piche].

The principle is not unyielding, however, and there are exceptions to its rigidapplication, as outlined in A.M. v Ministry of Social Services, 2020 SKCA 114: [183] … Whether to hear a new issue being raised for the first time on appeal is a matter of discretion.

The discretion is “narrow andshould be exercised sparingly”, taking into account “all of the circumstances, including the state of the record, fairness to all parties, theimportance of having the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice”(Guindon v Canada, 2015 SCC 41 at paras 5 and 20, [2015] 3 SCR 3 [Guindon]). [35] It is clear from the record that bad faith was not put in issue before the Commission and, as such, the Commission was notcalled upon to rule on this issue. Ms.

Silzer’s line of attack therefore constitutes a new argument on appeal. SGI is opposed to theintroduction of this argument primarily because Ms. Silzer failed to establish an evidentiary foundation for it and, in any event, SGI says itwould have called evidence at the Commission hearing in response. If Ms.

Silzer is permitted to argue bad faith, SGI claims it would beprejudiced because it was denied the opportunity to develop a factual record before the Commission responsive to her specific allegations. [36] Prejudice to the opposing party “caused by the lack of opportunity to respond and adduce evidence at trial” (R v Brown, (SCC), [1993] 2 SCR 918 at 923) is one of the two concerns underpinning judicial disinclination to permit new issues to beraised on appeal.

In Hawkeye Tanks & Equipment Inc. v Farr-Mor Fertilizer Services Ltd., 2002 SKCA 44 at para 10, 219 Sask R 148[Hawkeye], this Court rejected a new argument made on appeal, quoting from the following passage in Lamb v Kincaid (1907), (SCC), 38 SCR 516: “A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless itbe clear that, had the question been raised at the proper time, no further light could have been thrown upon it” (at 539).

The Court inHawkeye concluded that the trial court proceedings may well have been different if the new argument had been raised there resulting in“real prejudice [to the respondent] if forced to deal with the new argument at this stage” (at para 12). [37] Finally, there is an open question as to whether the Commission has the jurisdiction to entertain a bad faith claim or similartype of argument in the context of an appeal from an SGI decision under s. 191 of the Act.

In Gurniak v Saskatchewan GovernmentInsurance, 2016 SKQB 391, 97 CPC (7th) 396, the appellant appealed SGI’s denial of benefits to the Court of Queen’s Bench (as opposedto an appeal to the Commission). He did so by statement of claim that included an allegation that, in denying no-fault benefits, SGI hadacted in bad faith. In response to SGI’s application to strike portions of Mr. Gurniak’s claim, the Court concluded that a claim grounded inbad faith – a common law tort – could not be brought within the context of a s. 191 appeal and, therefore, ordered the offendingparagraphs be struck.

The Court went on to observe that if Mr. Gurniak wished to bring a claim of that nature, he had to do so by aseparate action. [38] Returning to the matter at hand, SGI argues that permitting bad faith to be raised in the context of an appeal to this Court fromthe Committees’ decisions would be improper because it did not have the opportunity to raise this jurisdictional question before theCommission. In consequence, it says, this Court is left without the Committee’s assessment of the issue, which, in some circumstances, isdeterminative of the fresh argument question: Meier at para 31.

[ 39 ] Given the absence of pleadings, the thin evidentiary record, SGI’s obvious inability to factually respond to the bad faith allegations, and the jurisdictional issue that was not addressed by the Commission, I am not persuaded this is a proper case to entertain Ms. Silzer’s new argument on appeal. 2. Lower back problem, surgery and the compression fracture [ 40 ] In the Causation Decision , the central question before the Commission was whether there was a causal connection between Ms. Silzer’s lower back problems and the MVA. The medical evidence revealed that Ms.

Silzer had suffered a compression fracture in her lower back, that she experienced lower back pain and eventually had surgery to address that problem. Ms. Silzer was adamant that the fracture was caused by the MVA, which, in turn, caused her lower back pain that eventually led to surgery. In very broad terms, Ms. Silzer argues the Commission erred in law by misapprehending or misinterpreting the evidence as it pertains to the issue of causation. a. The medical evidence [ 41 ] As mentioned, Ms. Silzer saw her family physician, Dr.

Guirguis, four days after the MVA on August 18, 2014, complaining of a headache and memory problems. She attributed both to the MVA. Under the subjective complaint portion of her medical chart, Dr. Guirguis recorded the following: “had MVA Aug 14, 2014, was the driver … she didn’t get injured, was checked by EMS and told her nothing to worry about, she started to feel pain in her back dull achy more with movement and breathing”. As noted above, Dr.

Guirguis also made these physical observations: “small skin abrsions [ sic ] on the back thoracic area, tender T10, 11, 12 with tender paravertebral muscles, chest clear”. The chart contains no record of pain in the lumbar (lower) region of her back. [ 42 ] Dr. Guirguis ordered an x-ray. The radiologist who read the x-ray provided the following commentary on the results: IMPRESSION: Dorsal spondylosis. Multilevel chronic degenerative disk disease. … LUMBAR SPINE AND PELVIS: … Acute compression facture is not identified … . [ 43 ] Ms. Silzer saw Dr.

Guirguis again on August 22, August 26, September 16, October 8 and October 20, 2014, primarily about headaches and memory problems she was experiencing following the MVA. Dr. Guirguis ordered a CT scan to rule out any head-injury problem. The result of that scan was normal. [ 44 ] When Ms. Silzer saw Dr. Guirguis again on October 20, 2014, she complained of lower back pain and pain along her right side. This was the first time Ms. Silzer had reported localized lower back pain. Dr. Guirguis’s notes from that date reveal as follows: “Back: normal ROM, tenderness over L4, 5 S1 and right paravertebral muscles”.

With regard to the previous x-ray, Dr. Guirguis wrote, “Xray showed Disk degeneration and arthritis, no acute changes”. Dr. Guirguis ordered another x-ray. The radiology report in connection with that x-ray detected a compression facture “of the superior vertebral end plate of L4”, noting that it could be related to the MVA. [ 45 ] Ms. Silzer continued to complain of lower back pain when she saw Dr. Guirguis on November 14 and December 5, 2014, and January 5, 2015. An examination revealed tenderness of the lumbar spine and paravertebral muscles.

In his reporting letter to SGI of December 9, 2014, for the first time Dr. Guirguis stated, “[Ms. Silzer] had a MVA and as a result there was a traumatic compression fracture of her Spine L4. There is [ sic ] no neurological symptoms. Xray showing Fracture is healing, however patient is still complaining of back pain”. That letter was followed by another on December 17, 2015, in which Dr. Guirguis purported to offer the following opinion: 1. She was never diagnosed with Spine fracture before the MVA date. 2.

When she was seen after the MVA she was concerned more about her memory problems, although she was complaining of nonspecific pains. 3. Because she was encouraged to work after the accident, she was very limited in physical activities but when she started to do some activities she felt back pain when the L4 fracture was discovered. 4. Rhonda used to see me almost every 2 weeks as far as I remember and if there is a new injury after the accident I think she would have told me. 5.

I ordered a bone Mineral density scan to rule out Osteoporosis when came back completely normal which confirmed that the L4 fracture is traumatic not pathologic. 6. She was seen by doctor Rodwan, the orthopedic surgeon who confirmed the diagnosis and took over her care. 7. I have left the practice in Saskatchewan in August 2015, so I can’t comment on her condition after that date. [ 46 ] Ms. Silzer called Dr. Rodwan, an orthopedic surgeon, as a witness. Dr. Guirguis had referred Ms. Silzer to Dr. Rodwan in connection with her lower back problems. Following his initial examination, Dr.

Rodwan wrote as follows in his February 6, 2015, reporting letter to SGI: “Ronda is a 53-year old who was involved in a car accident last year and sustained back injury. Since that time she started experiencing back pain. Her pain is dull ache in nature, starts at the lower lumbar area and radiates to the right and left leg over S1 nerve root distribution. Her pain is activity related”. With regard to the x-ray of the lumbar spine, he said that it showed “evidence of healed L4 compression fracture with no evidence of instability”. [ 47 ] A CT scan was performed on February 13, 2015.

The medical imaging report accompanying that scan provided as follows: “There is an old, mild wedge compression fracture of L4. Also noted is sclerosis and hypertrophy of bilateral facet joints at levels L2 to

S1” and, under the heading “Impressions”, it states, “Stable old compression fracture of superior vertebral end plate of L4. There is significant spinal stenosis at level L3/4. Neurosurgery consultation is advised”. [ 48 ] Dr. Rodwan testified that Ms. Silzer’s lower back symptoms were caused by severe degenerative pathology at L3/4 that was pressing on her nerves. More particularly, he stated that her back symptoms were directly related to the presence of a synovial cyst on her left side from the facet at the L3/4 level, that the cyst had compressed her nerves and that it was the cause of her pain.

The cyst was surgically removed. [ 49 ] Both sides questioned Dr. Rodwan about whether the cyst was trauma related, i.e., caused by the MVA. Dr. Rodwan’s opinion was unequivocal: it was caused by degenerative change, not trauma. That said, Dr. Rodwan did allow for the possibility that an injury could have worsened Ms. Silzer’s pain, but he could not be sure if that had happened to her. Dr. Rodwan was asked if he was concerned about the compression fracture at L4. He said he was not, and, in fact, he thought the fracture had healed: Not really.

I mean, what happens is that it’s not uncommon things where (indiscernible) okay. And then sometimes you get an injury and then we have a loss of the height (indiscernible) a little bit. The joint is maybe (indiscernible) on the x-ray. I don’t really remember the x- ray now. I was just looking at the MRI. But what we usually do is we do an MRI to see if this was an acute or a chronic or something is healing or if there’s healing going on, the best way to do this is the MRI.

So what we usually do is if the MRI does indicate active injury and you can actually see what the (indiscernible) does that tell you this is an acute injury. If it’s done after three, four months, it’s already healed. You’re not going to see anything. So decision was not because of the fracture but, I mean, we did this because of the cyst that [was] compressing her nerve. [ 50 ] Dr. Matthews also testified before the Commission. She is a general practitioner with specialized training in occupational medicine, a certified independent medical evaluator and an independent medical consultant. Dr.

Matthews testified about her qualifications and training as a certified independent medical examiner. In this regard, she completed a two-year course that, among other things, included instruction on causality in a medical–legal context, how to conduct an independent medical evaluation, and how to review the medical literature and document her findings. Dr.

Matthews said she is under contract with SGI to provide services as an independent consultant emphasizing that, pursuant to the terms of that contract, she is neither an employee of SGI nor subject to its control or direction in the discharge of her duties. [ 51 ] Dr. Matthews provided opinion letters to SGI dated May 18, 2015, March 10, 2016, and May 25, 2018, all dealing with the question of whether Ms. Silzer had recovered from her MVA-related injuries. To answer that query, Dr.

Matthews testified that she had to undertake a causation analysis to, as she put it, “determine the diagnosis of the motor vehicle collision injuries”. To that end, Dr. Matthews reviewed all of Ms. Silzer’s medical and ambulance records that were in SGI’s possession, including the initial medical reports. As Dr. Matthews explained, the initial, post-MVA records were important because they provided the best proof of the nature and severity of the injury. Dr. Matthews examined this information for consistency, continuity of symptoms and any patterns or signs to see if they followed the known natural history of Ms.

Silzer’s initial diagnosis. Dr. Matthews said she repeats that process when any additional complaint is lodged. Dr. Matthews conceded that she had not been provided with Ms. Silzer’s medical records that pre-existed the MVA, apart from one practitioner report from a family physician who noted a pre-existing history of back pain, anxiety, arthritis and chronic marijuana use. [ 52 ] Based on her file review, Dr. Matthews observed that, while Ms.

Silzer had initially identified some tenderness in the thoracic area of her back following the MVA, she did not report lower back pain until two months following the accident. Dr. Matthews agreed with Dr. Rodwan’s diagnosis that a severe lateral recessed stenosis at L3/4 of Ms. Silzer’s lumbar spine was caused by generalized spinal degeneration pre-dating the MVA . She went on to express the opinion that it was highly improbable the MVA caused or contributed to Ms. Silzer’s degenerative change and that this change was not acute. Finally, Dr.

Matthews opined that the compression fracture detected at L4 was a separate finding that did not cause or contribute to Ms. Silzer’s lumbar problems nor was it related to the MVA. b. Ms. Silzer’s arguments in relation to her lower back problems [ 53 ] Ms. Silzer asserts the Commission erred in law by relying on the evidence of Dr. Matthews because (

a) she was not objective or impartial, (

b) she had not conducted a physical examination, and (

c) she did not unequivocally state that a traumatic fracture is always accompanied by immediate localized pain. I will address each argument in turn. i. Was Dr. Matthews impartial or independent [ 54 ] Ms. Silzer argues the Commission placed too much weight on Dr. Matthews’s evidence because, as framed in her written argument, “Dr. J. Matthews is paid by SGI and as such, the findings of her reports directly impact her employment/career. How can Dr. J. Matthews[’s] opinion be considered impartial and unbiased when she is paid by SGI?” From this, I take Ms. Silzer to argue that Dr.

Matthews’s opinion evidence was not objective or the product of independent judgement simply because she had been retained by SGI to provide a medical opinion. [ 55 ] An expert who proffers opinion evidence has a duty to the court “to provide fair, objective, and non-partisan assistance” ( White Burgess Langille Inman v Abbott and Haliburton Company , 2015 SCC 23 at para 2 , [2015] 2 SCR 182 [ White Burgess ]).

An impartial opinion is one that “reflects an objective assessment of the questions at hand”, and it is said to be independent “in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation” (at para 32). The third element – unbiased – refers to an opinion that “does not unfairly favour one party’s position over the other”. Those principles must be understood and applied in the context of the adversary system of litigation, and the reality that, generally speaking, experts are retained and paid for by one of the parties.

This reality was recognized in White Burgess , where the Court held, “These facts alone do not undermine the expert’s independence, impartiality and freedom from bias” (at para 32). [ 56 ] The Supreme Court’s decision in White Burgess established that a challenge to an expert’s lack of independence and impartiality must be addressed at the admissibility stage and not left as a question of weight. Expert opinion evidence, it said, “‘should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to

weight rather than admissibility’” (at para 45, quoting R v J.-L.J. , 2000 SCC 51 at para 28 , [2000] 2 SCR 600). [ 57 ] White Burgess addressed the effect of an employment relationship on a witness’s impartiality, stating as follows: “the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so” (at para 49).

The focus of analysis, the Supreme Court said, is not on the fact of the interest or connection, but on the nature and extent of that interest or connection with either the litigation or a party to the litigation. [ 58 ] This means the nature and extent of an alleged interest or connection between the proposed expert and the party who seeks to adduce that expert’s opinion must be examined on its own facts. Examples of when it might become problematic include situations where the expert (

a) has a direct financial interest in the outcome of the proceedings, (

b) has a close familial relationship with a party, (

c) could potentially incur professional liability if their opinion was not accepted, or (

d) has assumed the role of advocate for a party ( White Burgess at para 49 ). [ 59 ] With those principles in mind, I turn to Ms. Silzer’s argument. [ 60 ] It is settled law that the admissibility of expert evidence is a question of law reviewable on the correctness standard of review insofar as it concerns the proper articulation and application of the legal test. Absent an error in principle, however, an appellate court owes “deference to decisions of trial judges to admit or reject expert evidence” ( R v Dominic , 2016 ABCA 114 at para 17 , 335 CCC (3d) 178).

Also see R v Chung , 2018 SKCA 70 at para 16 , and Hess v Thomas Estate , 2019 SKCA 26 at para 30 , 433 DLR (4th) 60 [ Hess ]. [ 61 ] It is clear from the record that Ms. Silzer did not object to the admissibility of Dr. Matthews’s evidence on the basis of an alleged lack of impartiality or independence. While I do not take Ms. Silzer to argue that the Commission erred by admitting her expert opinion evidence, she seems to assert the Commission erred by assigning Dr.

Matthews’s opinion any or too much weight because she was paid by SGI. [ 62 ] In general terms, the assessment of the significance of opinion evidence – or the weight assigned to it by a by a trier of fact – is a question of fact, not law, which calls for deference on appeal: see Hess at para 31 , Frondall v Frondall , 2020 SKCA 135 at para 20 , 49 RFL (8th) 293, and Arslan v Şekerbank T.A.Ş . , 2016 SKCA 77 at para 50 , 400 DLR (4th) 193 [ Arslan ].

In the context of an appeal under s. 194 of the Act , Leurer J.A. framed the issue in Cop v Saskatchewan Government Insurance , 2019 SKCA 75 , [2019] 2 WWR 396 [ Cop ], in this way: “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” (emphasis in original, at para 21).

A similar observation was made in Piche : [128] … Absent an error within the meaning of the standard of review, weight is a matter for the trier of fact ( S.T. v J.T ., 2019 SKCA 116 , 33 RFL (8th) 253; and Ferguson Estate ( Re) , 2018 PECA 19 , 38 ETR (4th) 10). Only questions of law are appealable by virtue of s. 194(1) of the Act . The standard of review is correctness. [ 63 ] Thus, the limits on this Court’s jurisdiction under s. 194(1) is a complete answer to Ms. Silzer’s argument because her argument does not raise a question of law.

However, there are several other reasons why her argument cannot prevail. [ 64 ] The mere fact that a connection existed between SGI and Dr. Matthews did not automatically render her evidence inadmissible, nor, for that matter, did it relieve the Commission from its obligation, as trier of fact, to assess its probative value.

It was up to the Commission to determine “the degree or extent to which the evidence will prove the fact in issue for which it is tendered” (Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 5th ed (Toronto: Lexis Nexis, 2018) at para §2.70). [ 65 ] It was open to the Commission to consider Dr. Matthews’s connection with SGI. While the Commission did not comment on her contract with that insurer, it understood that she was a consultant who specialized in occupational medicine and who had done a file review at SGI’s request. The Commission’s failure to explore Dr.

Matthews’s connection with SGI is understandable in light of Ms. Silzer not having advanced any argument or expressed any concern about Dr. Matthews’s impartiality or independence in her submissions. There was no reason for the Commission not to admit Dr. Matthew’s evidence. Ms. Silzer did not challenge the admissibility of her testimony based on an alleged lack of independence or impartiality. Neither did she cross-examine Dr. Matthews on this issue or probe her testimony concerning her contract with SGI. Rather, Ms. Silzer simply submits on appeal that Dr.

Matthews’s opinion was compromised because she does paid consulting work for SGI. [ 66 ] Not only was the nature and extent of Dr. Matthews’s contractual arrangement with SGI not pursued or probed in any way, but the Commission was largely faced with uncontroverted opinion evidence on two of the three causation issues. More particularly, the Commission found no conflict between Dr. Matthews’s opinion and that of Ms. Silzer’s expert, Dr. Rodwan, in connection with the reason for her back surgery.

This led the Commission to observe as follows: “There was no contrary evidence for the Commission to weigh and it finds as fact the surgery was unrelated to the MVA” (at para 38). Similarly, with regard to Ms. Silzer’s concern about a linkage between the MVA and her memory and headache concerns (discussed more fully below) the Commission found the most reliable evidence was the diagnosis that had been provided by Ms. Silzer’s own doctor. Dr. Matthews simply agreed with Dr. Guirguis. [ 67 ] That left the compression fracture.

The Commission understood there were competing opinions about whether it was caused by a traumatic incident (i.e., the MVA) or a degenerative change. The Commission preferred Dr. Matthews’s expert opinion as to the origin of this fracture and gave a reasoned and logical explanation for why it accorded greater weight to Dr. Matthews’s opinion over that of Dr. Guirguis’s on the topic. [ 68 ] For all of these reasons, I would not give effect to the argument that Dr. Matthews’s opinion evidence was not impartial or independent. ii. Dr. Matthews did not physically examine Ms. Silzer [ 69 ] Ms.

Silzer argues that the Commission erred by giving more weight to the evidence of Dr. Matthews – which she discounted as “just an opinion” – compared to that of Dr. Guirguis, who had conducted a physical examination.

[70] I begin with a couple of preliminary observations. [71] As discussed above, this Court is limited to reviewing decisions of the Commission for error of law alone. A challenge to theweight given to the evidence does not qualify as an error of law. [72] As this Court noted in Piche, an expert’s opinion based on a file review, and not on a physical examination, “affects its weight,not its admissibility” (at para 115) and that the “more the expert relies on facts not proven in evidence, the less weight is attributed to thatopinion” (at para 117).

See also Ontario (Attorney General) v 855 Darby Road, Welland (In Rem), 2019 ONCA 31 at para 36, 431 DLR(4th) 243, and R v Lavallee, (SCC), [1990] 1 SCR 852 at 896. The question of how much weight a trier of fact assigns toan opinion formed from a file review will vary based on the circumstances of each case and the frailties of the information relied on bythat expert: see Cop at paras 31 and 32. [73] As set out above, the weight given to an expert’s opinion is determined by the trier of fact (in this case, the trier of fact was theCommission) and is a question of fact, not law.

Since s. 194(1) of the Act only permits an appeal to be taken on a question of law, thisCourt does not have the jurisdiction to disturb the Commission’s preference of expert opinion evidence. Even if I were to look beyond thejurisdictional issue, Ms. Silzer’s argument must fail for a number of other reasons. [74] First, Dr. Matthews was not asked to diagnose Ms. Silzer’s clinical presentation but to provide an opinion as to whether theinjuries described by Ms. Silzer were caused by the MVA.

She based her opinion on a review of the existing medical records, diagnosticinformation and diagnoses that had been provided by Dr. Guirguis and Dr. Rodwan. As such, Dr. Matthews had ample evidence on whichto formulate her opinion. She did not take issue with Dr. Guirguis’s records; in fact, she found them helpful in her causation analysis. [75] Further, an opinion based on a file review is considered admissible evidence before the Commission: Van de Sype at para 131and Piche at para 113.

This conclusion is consistent with s. 196.3(1) of the Act, which allows the Commission to accept “any evidence” itconsiders relevant to the issue before it and s. 196.3(2), which provides that the strict rules of evidence need not be followed.

The scope ofa file review was discussed in Van de Sype: [14] … In most cases, this will inevitably be almost all the medical and medically related information on the file, including, again withoutsetting out an exhaustive list, documents that contain hearsay, secondary evidence, reports from medical and healthcare practitionerswhose qualifications are not set out, and reports where the foundational material is not attached. [76] As mentioned above, Dr. Matthews testified that she carefully reviewed each entry that had been made by Dr. Guirguis onMs.

Silzer’s medical charts as well as the diagnostic reports accompanying those entries. She took a similar approach with Dr. Rodwan.Based on that information, she observed that, while Ms. Silzer had initially reported some tenderness in the thoracic area of her back (theupper back), she did not report lower back pain to her family physician until two months after the MVA. Dr. Matthews said she agreedwith Dr. Rodwan’s diagnosis of severe lateral recessed stenosis at L3/4 of the lumbar spine (the lower back), which he concluded wascaused by generalized spinal degeneration pre-dating the MVA.

In her opinion letter of May 25, 2018, Dr. Matthews said as follows:“According to the CT scan of September 8, 2015, the synovial cysts was the major contributing factor to the narrowing of Ms. Silzer’s leftL3-4 lateral recess and the encroachment of the L4 never root. … [A] synovial cyst is caused by age-related degenerative changes” (at 5).She then concluded as follows (at 6): • The diagnosis of Ms. Silzer’s lumbar back complaints and leg pain that began two months after the collision is severe leftlateral recess stenosis at L3-4 of the lumbar spine.

In my opinion, this condition was caused by a generalized spinal degenerative processthat pre-existed the MV[A]. More likely than not, this generalized degenerative process was not affected by the MV[A]. [77] The Commission adopted Dr. Matthews’s opinion: [38] With respect to the first issue, was the back condition necessitating the surgery caused by the MVA? Both Dr. Rodwan andDr. Matthews concurred the back surgery was caused by a degenerative condition and not caused by the MVA. There was no contraryevidence for the Commission to weigh and it finds as a fact the surgery was unrelated to the MVA.

From this finding it also follows thatmuch of the Appellant’s pain and disability in the past and present is unrelated to the MVA. [78] Therefore, although Dr. Matthews’s opinion was based on information that was not within her personal knowledge, there is nodoubt that she considered the relevant evidence in relation to Ms. Silzer’s lower back problem. While a question of fact can give rise to aquestion of law where it is based on no evidence, irrelevant evidence or in disregard for relevant evidence, I see no indication thatDr.

Matthews’s opinion suffered from any of those infirmities. [79] That leaves the question of whether the Commission made an irrational inference with respect to the cause of Ms. Silzer’scompression fracture. The Commission accepted Dr. Matthews’s opinion on this issue as well: [39] … the delay of immediate localized pain is inconsistent with a traumatic fracture and it is more likely than not the compressionfacture was pre-existing and caused by a degenerative condition.

There is certainly evidence from the radiology reports of osteoarthritis atall levels of the Appellant’s spine to support the theory of degenerative change. [80] As mentioned above, Ms. Silzer’s argument about the cause of her compression fracture (i.e., that it was caused by the MVA)was largely grounded in Dr. Guirguis’s December 17, 2015, letter. Dr. Matthews was aware of Dr. Guirguis’s opinion, but found it wasmore likely than not that the fracture pre-existed the MVA based on the following logic and evidence: (

a) the October 20, 2014, x-ray did not reveal the date of Ms. Silzer’s fracture; (

b) Ms. Silzer’s clinical picture after the MVA was not consistent with an acute fracture of the lumbar spine. (

c) the attending ambulance personnel, who are trained to be observant for back injuries, saw no sign or symptoms of spinaltrauma;

(

d) the area of Ms. Silzer’s thoracic pain was distant from the location of the compression fracture in the L4 area of her back; (

e) there was no documented complaint of lower back pain, even though Ms. Silzer saw her family physician frequently after the MVA; and (

f) Dr. Rodwan attributed Ms. Silzer’s lower back pain to severe degenerative pathology at L3-4 pressing on the L4 nerve root. [ 81 ] Dr. Matthews was asked to review her causation opinion in light of further information that had been provided by Ms. Silzer. Dr. Matthews’s opinion, summarized in her May 25, 2018, report, did not change (at 6–7): • The claimant’s clinical presentation, as documented in the medical records on the SGI file, does not support a cause and effect relationship between the claimant’s L4 compression fracture and the MV[A] of August 14, 2014.

More likely than not, this diagnosis pre- existed the collision. • When the L4 fracture occurred is not relevant to this causation analysis. Even if it did occur at the time of the MV[A], it was not the cause of the claimant’s back and left thigh pain that developed two months after the collision . (See above.) (Emphasis added) [ 82 ] The Committee was well aware of the discrepancy of opinion between Dr. Matthews and Dr. Guirguis with regard to the cause of the compression fracture. It understood that Dr. Guirguis had drawn a causal connection between the fracture and the MVA largely from the bone density scan.

Dr. Matthews testified about the utility of the scan and whether the results were as compelling as Dr. Guirguis had suggested: A No, no. And the test is never definitive, just so you know. But this particular test, the problem was that the radiologist wasn’t able to interpret the bone density based on this test because there was so much arthritis and so much thickening of the bone that the bone density could have been -- could have looked thicker than it actually was. So this could be a false negative test. [ 83 ] The Committee summarized Dr.

Matthews’s evidence in relation to the import of the bone density scan: [28] Dr. Matthews also challenged her doctor’s opinion the compression fracture was caused by the MVA. Her doctor based his opinion on the bone mineral density scan as a contraindication of degenerative fracture. Dr. Matthews refers to a note on the bone mineral density report stating it is difficult to read the images due to a significant degree of osteoarthritis. Dr. Matthews said osteoarthritis could cause a false positive in an osteoporosis reading. In Dr.

Matthew’s opinion the bone mineral density test is not the gold standard test of bone strength. Dr. Matthews’s research also showed that 30% of people with degenerative fractures do not have osteoporosis. Finally, Dr. Matthews identified a number of risk factors for a degenerative fracture in the Appellant’s history including, the early onset of menopause, smoking, alcohol consumption and strenuous athletic activities. [ 84 ] In the end, the Commission accepted Dr.

Matthews’s opinion about the cause of the fracture, concluding that it was more likely than not that it was caused by a degenerative change rather than the MVA. While it was open to the Committee to have accepted Dr. Guirguis’s point of view over Dr. Matthews’s, it preferred Dr. Matthews’s opinion, having found her explanation plausible and based on sound reasoning. In my view, that was a rational inference that was open to the Commission in relation to this issue. [ 85 ] I find the Commission’s decision to accept the opinion evidence of Dr. Matthews to be reasoned, logical and rooted in Dr.

Matthews’s rational review of the facts. There is no error of law. iii. Dr. Matthews was not unequivocal [ 86 ] Finally, Ms. Silzer argues that the Commission misinterpreted part of Dr. Matthews’s evidence concerning the compression fracture. She frames her argument in this way: However, [Dr. Matthews] had also previously testified that traumatic compression fractures usually cause immediate localized pain at the compression fracture site.

Usually does not mean always, and as such it is submitted that it is possible that the Appellant suffered a traumatic compression fracture, experienced immediate localized pain, and walked with [a] broken back, and that the [Commission] misinterpreted the evidence of Dr. Matthews in this regard. (Underline emphasis in original, italic emphasis added) [ 87 ] Ms. Silzer suggests the Commission wrongly accepted Dr.

Matthews’s testimony about the cause of her fracture because she could not unequivocally state that a traumatic fracture is always accompanied by immediate localized pain. [ 88 ] While PSS Services and Murphy hold that a tribunal may commit an error of law by basing its findings of fact on a misinterpretation of the evidence, I see no basis to conclude that this is what happened here. [ 89 ] Ms. Silzer’s argument ignores the fact that immediate localized pain in the lower back area was but one of the factors Dr. Matthews considered in concluding that the compression fracture pre-dated the MVA. Dr.

Matthews also based her opinion on Ms. Silzer’s clinical presentation following the MVA (which she described as inconsistent with the existence of a compression fracture), the fact the MVA was a low-speed collision, the absence of any complaint of lower back pain for over two months following the accident, the MRI and other diagnostic reports and, not insignificantly, Dr. Rodwan’s diagnosis. [ 90 ] Ms. Silzer’s argument also ignores Dr. Matthews’s bottom-line conclusion about the overall import of the fracture. She concluded that even if the fracture had been caused by the MVA, it was not the cause of Ms.

Silzer’s lower back pain. In her May 25, 2018, report, Dr. Matthews summarized her findings and conclusions in this way (at 6):

At the end of the day, it really doesn’t matter what caused the L4 fracture or when it occurred. Even if it was related to the MV[A] (which is unlikely), the L4 fracture was not the cause of Ms. Silzer’s low back and left thigh pain that developed two months later . According to Dr. Rodwan, the cause of Ms. Silzer’s lumbar and leg symptoms was advanced age related degenerative changes at L3-4 on the left side that were encroaching the left L4 nerve root.

In my opinion, these degenerative changes, which are present throughout the lumbar and thoracic spine, were not caused or affected by the MV[A]. (Emphasis added) [ 91 ] Finally, the Commission was not obliged to accept Dr. Matthews’s opinion about the cause of the compression fracture. As the trier of fact, it was up to the Commission to determine how much weight to assign to that opinion – or, for that matter, Dr. Rodwan’s opinion about the import of the fracture and its cause. As discussed above, since weight is a question of fact, not law, this ground of appeal is beyond the scope of appellate review. 3.

The head injury [ 92 ] Ms. Silzer testified that she suffered memory loss and headaches immediately after the MVA and could not even recall how she got home after it had occurred. Ms. Silzer described these symptoms to Dr. Guirguis when she attended his office on August 18, August 22, August 26, September 16 and October 8, 2014. [ 93 ] The Commission reached the following causation conclusion in relation to this concern: [43] Finally, the third issue. Was a head injury caused in the MVA? The Commission agrees with Dr. Matthews that there is insufficient evidence of a head injury resulting in memory problems.

The only medical evidence of a head injury is very soon after the MVA. There is no record after October 2014. If there was a head injury, it appears to have resolved at an early date and before any of the decision letters in question. The most reliable evidence before the Commission is the diagnosis from the Appellant’s doctor that any memory loss is more likely attributable to marijuana use. Dr. Matthews also concurred in the doctor’s opinion. The Commission finds that it is more likely than not that the Appellant did not suffer a head injury in the MVA. [ 94 ] While Ms.

Silzer challenges this finding, she has not identified any error of law that would allow this Court to intervene. Specifically, I see no basis to conclude that the Commission arrived at its decision based on no evidence, irrelevant evidence, overlooked material evidence or in any way misapprehended the evidence. In this regard, I note the Commission’s conclusions are supported by the medical evidence of Ms. Silzer’s own doctor. Dr. Guirguis’s clinical notes from September 16, 2014, reveal that he initially suspected Ms.

Silzer’s concern was due to depressive illness, but ordered a CT scan of the head to rule out any intercranial problems. The CT scan result was normal. [ 95 ] Ms. Silzer’s next appointment with Dr. Guirguis was on October 8, 2014. The clinical entry on her chart for that day reads as follows: “still have memory problems, she has difficulty remembering things and takes a long time to remember, since MVA, still using marijuana for long time, wants to consider medical Marijuana”. Under “prognosis”, Dr.

Guirguis wrote, “patient advised that her memory problem most probably due to her chronic use of Marijuana she didn’t believe that there is no medical Indication for medical Marijuana”. [ 96 ] Dr. Guirguis prepared a practitioner report on October 20, 2014, in which he wrote “chronic marijuana use” under the heading pre-existing conditions. [ 97 ] Dr. Matthews observed that when Ms. Silzer first saw her family physician on August 18, 2014, no head injury was reported. After her review of Dr. Guirguis’s clinical notes and records, Dr. Matthews concluded as follows in her March 18, 2015, report (at 4): Ms.

Silzer contends she had a concussion as a result of her MV[A]. However, her physician has not diagnosed concussion as the cause of her memory complaints. According to the chart record of October 8, 2014, the diagnosis of Ms. Silzer’s cognitive difficulties is chronic use of marijuana and Ms. Silzer has been advised of this by her physician. [ 98 ] Ms. Silzer takes issue with that conclusion. She suggests that Dr. Guirguis’s medical opinion should not be given much, if any, weight because he failed to take assiduous notes.

She adduced no medical opinion before the Commission to support her contention that her symptoms were caused by the MVA. When asked by a member of the panel that heard her appeal if she had any objective medical evidence to back up her assertion that she was concussed in the MVA, this exchange took place: [T.S.]: Are there any medical reports on your post-concussive condition? THE WITNESS: There really – there wasn’t.

When – by the time he actually got to doing an x-ray or a CT scan on that was probably almost – it was between six and two months after. [T.S.]: You said it was a normal CT scan – THE WITNESS: It came – [T.S.]: – that you had. THE WITNESS: It was normal by the time that came around. [ 99 ] In light of the evidentiary record, it is clear that the Commission did not misapprehend or ignore relevant evidence. In fact, as the Commission properly noted, the best evidence of Ms. Silzer’s medical complaint was from her own physician – Dr. Guirguis. Dr. Matthews saw no reason to disagree with his diagnosis.

The fact that the Commission reached its conclusion based on evidence found in Ms. Silzer’s medical record and not her subjective assessment of her condition does not amount to an error of fact, let alone an error of law.

B. The Limitation Decision [ 100 ] Ms. Silzer testified that her health problems and apprehension about driving in Regina caused her to contact the Commission about dropping off her appeal application at a more accessible location. As mentioned above, she testified about a telephone conversation she allegedly had with Janessa Bell of the Commission Office who, Ms. Silzer says, gave her permission to drop off her appeal application at the SGI Pasqua Street office. Ms. Silzer claims to have done just that on May 18, 2016. [ 101 ] Ms. Bell could not recall having had the conversation described by Ms. Silzer.

Lorette Panagabko testified that it was unlikely she would have authorized Ms. Bell to tell Ms. Silzer that she could file her appeal at an SGI office because that sort of advice was inconsistent with instructions typically given to new Commission employees. [ 102 ] Neither Ms. Bell nor Ms. Panagabko could explain how Ms. Silzer’s appeal came to arrive at the Commission’s office on May 25, 2016 (as per the date stamp it bore). Mr. McKillop stated that he did not need to decide whether Ms. Silzer delivered her appeal application to SGI. However, he expressly rejected Ms.

Silzer’s testimony, stating, “I have concluded that the testimony of the Commission staff members makes it so unlikely that [Ms. Silzer] was given the permission she described that I cannot accept [Ms. Silzer’s] testimony on that point” (at para 13). Having made that finding, he concluded the appeal was out of time and dismissed it outright. [ 103 ] Ms. Silzer does not challenge the bottom-line finding that, if her appeal was filed with the Commission on May 25, 2016, it was out of time. Instead, she makes a number of arguments designed to undermine Mr. McKillop’s factual findings.

I will deal with each argument in turn. [ 104 ] First, much like she did before Mr. McKillop, Ms. Silzer repeats her submission that, with Ms. Bell’s permission, she hand- delivered her appeal application to the SGI Pasqua Street office on May 18, 2016. Respectfully, her testimony on this point was rejected by Mr. McKillop; therefore, as I see it, Ms. Silzer is either taking issue with his credibility findings or the weight he assigned to the evidence. Either way, her submission involves questions of fact, not law ( Piche at para 128 ). Once again, the problem for Ms.

Silzer lies with s. 194(1) of the Act , which only permits an appeal to this Court on questions of law. [ 105 ] By way of a second argument, Ms. Silzer submits that SGI obstructed justice by not delivering her appeal to the Commission until after the expiration of the appeal period. Ms. Silzer invokes the Supreme Court decision in Whiten v Pilot Insurance Company , 2002 SCC 18 , [2002] 1 SCR 595, for the proposition that insurance companies must not exploit the vulnerabilities of their policy holders and are obliged to discharge their duties with the utmost of good faith. In this vein, Ms.

Silzer points to physical and financial vulnerabilities that she says impaired her ability to file her appeal on time. She sums up her position by stating as follows: “Given the large amount of money SGI would have been paying [her] in benefits, it is clear that SGI had an interest in interfering with and delaying [her] appeal application past the statutory deadline”. [ 106 ] With respect, Ms. Silzer’s argument is speculative and is premised on the assumptions that (

a) she was permitted to deliver her appeal application to the SGI Pasqua Street office, (

b) she dropped it off on May 18, 2016, and (

c) having received those documents, SGI intended to obstruct her right of appeal by deliberately withholding them from the Commission until after the limitation period had expired. The first assumption is, of course, at odds with Mr. McKillop’s rejection of her testimony and fails to appreciate that he made no finding of fact with regard to the second assumption as to the date Ms. Silzer delivered the documents to the SGI office. Finally, even if Ms.

Silzer can get past the first and second assumptions, there is no evidentiary foundation for her submission that SGI acted with intent to thwart her ability to appeal. This prong of Ms. Silzer’s argument is speculative and not grounded in the record and, simply put, cannot succeed. It also ignores the fact that she bore the burden of filing the appropriate appeal documents with the Commission to initiate her appeal along with the burden of establishing that she had done so within the requisite time. [ 107 ] Before this Court, Ms. Silzer advances a fresh argument that was not put to Mr. McKillop.

That is to say, she now argues that since SGI administers the no-fault scheme, service on the insurer amounts to effective service on the Commission. As I understand her position, Ms. Silzer suggests that – permission aside – even if she was required to file her appeal with the Commission, the legislative connection between SGI and the Commission made service on SGI qua agent for the Commission sufficient. [ 108 ] Section 191(1) (

b) of the Act provides claimants with a right of appeal from decisions made by SGI to either the Court of Queen’s Bench or the Commission within 90 days following the insurer’s written decision or the end of mediation, as the case may be (at the time in question, the Act provided for a 60-day appeal period). In the case of an appeal to the Commission, s. 193(2) stipulates that an appellant must commence their appeal in the prescribed manner.

Section s. 86(1) (

a) of The Personal Injury Benefits Regulations , RRS c A-35 Reg 3 [ Regulations ], requires an appeal to be in the form provided by the Commission and s. 86(1)(

b) indicates that the form must be signed by the appellant. Section 88(2) of the Regulations imposes an obligation on the Commission to serve a copy of the appeal on the insurer (SGI) within seven business days. The Regulations say nothing about service on the Commission via the insurer. [ 109 ] The difficulty with Ms. Silzer’s argument is that Mr. McKillop rejected her evidence and, having found that she did not have the Commission’s permission to deliver her appeal to an SGI office, did not go on to decide “whether [Ms. Silzer] delivered the application to SGI as she described …”.

In other words, even if SGI could accept service of Ms. Silzer’s appeal as agent for the Commission, no finding of fact was made as to whether Ms. Silzer had, in fact, served SGI on May 18, 2016. As such, there is no factual foundation for Ms. Silzer’s position; accordingly, the agency argument, although novel, will be left for another day. [ 110 ] For all of these reasons, Ms. Silzer’s appeal from the Limitation Decision cannot succeed. V. conclusion [ 111 ] Ms. Silzer’s appeals are dismissed. There will be no order as to costs. “Schwann J.A.”

Schwann J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.