Germain v Saskatchewan Government Insurance, 2021 SKCA 88

Court of Appeal for Saskatchewan Docket: CACV3832 Citation: Germain v Saskatchewan Government Insurance, 2021 SKCA88Date: 2021-06-10Between:Elaine GermainApplicant/Prospective Appellant (Appellant)AndSaskatchewan Government InsuranceRespondent/Prospective Respondent (Respondent)Before: Kalmakoff J.A. (in Chambers)Disposition: Application dismissedWritten reasons by: The Honourable Mr. Justice KalmakoffOn application from: 2021 SKAIA 7 , 2021 SKAIA 007, ReginaApplication heard: May 26, 2021Counsel: Elaine Germain appearing on her own behalf Steven Haichert for the Respondent Kalmakoff J.A. I.

INTRODUCTION [1] Elaine Germain seeks to appeal from a decision rendered by the Automobile Injury Appeal Commission [Commission] onApril 9, 2021 (Germain v Saskatchewan Government Insurance, 2021 SKAIA 7 [Decision]). By virtue of s. 194(1) of The AutomobileAccident Insurance Act, RSS 1978, c A-35 [Act], such appeals are limited to questions of law and, as of July 3, 2020, require leave of ajudge of this Court. [2] In the Decision, the Commission dealt with Ms.

Germain’s appeals from four decision letters issued by SaskatchewanGovernment Insurance [SGI] that either denied or limited her claims for benefits under the provisions of the Act and The Personal InjuryBenefits Regulations, RRS c A-35 Reg 3 [Regulations]. [3] Ms. Germain contends that the Commission panel that heard her case was biased against her and that it made several errors indeciding her appeal.

She takes the position that leave to appeal to this Court is not required because, when the motor vehicle accident thatgave rise to her claim for benefits occurred, the Act permitted appeals from decisions of the Commission to this Court on questions of lawas of right. Because the right of appeal is a substantive right, she says, it cannot be retroactively truncated by a legislative change imposinga requirement to obtain leave. [4] In the alternative, Ms.

Germain argues that, if leave is required, it should be granted because her proposed appeal raisesquestions of law that are both meritorious and important. [5] As explained below, I have determined that Ms. Germain’s application must be dismissed. II. BACKGROUND [6] Ms. Germain was involved in a motor vehicle accident on December 3, 2001 [MVA], in which she suffered an injury to herback. She applied for benefits under the provisions of the Act and Regulations that were in effect at the time. [7] By way of two decision letters, dated January 8, 2003 and August 26, 2004, SGI denied Ms.

Germain’s claim for the IncomeReplacement Benefit [IRB] under s. 112 of the Act because it took the position that (

i) Ms. Germain’s injuries were not of such a nature asto have rendered her entirely or substantially unable to perform the essential duties of her employment as a lawyer; and (ii) based on theincome tax information Ms. Germain had provided to SGI, she had not established that she suffered economic loss as a result of her injury. [8] A November 1, 2004, decision letter denied Ms. Germain’s claims for coverage of the cost of a certain prescription drug andfor assistance with yard care. In this decision letter, SGI took the position that Ms.

Germain had established neither that the prescriptiondrug was necessary to treat her MVA-related injuries, nor that her injuries left her unable to do yard work. [9] A fourth decision letter, issued on June 23, 2005, discontinued all of Ms. Germain’s benefits because, based on SGI’s view ofthe available medical information, any injuries she had suffered in the MVA had “healed long ago”. [10] Ms. Germain appealed from the decision letters to the Commission. For a number of reasons, the Commission did not hear herappeal until March 21, 2013.

On June 7, 2013, the Commission rendered a decision upholding SGI’s denial of benefits to Ms. Germain(M.A. v Saskatchewan Government Insurance, 2013 SKAIA 15 [Germain SKAIA 2013]). [11] Ms. Germain appealed to this Court from the decision in Germain SKAIA 2013. The Court set aside that decision and ordered anew hearing noting that, because of the amount of time that had passed since SGI’s decision letters were issued, further evidence would berequired “to assess whether Ms.

Germain was ever entitled to benefits and, if so, whether that entitlement has since ended” (Germain vSaskatchewan Government Insurance, 2015 SKCA 84 at para 81 [Germain SKCA]).

[12] Following the decision in Germain SKCA, SGI engaged an independent medical examiner to review Ms. Germain’s file.Subsequent to that SGI issued another decision letter, dated January 4, 2018, in which it advised Ms. Germain that its position with respectto her entitlement to benefits had not changed. [13] Ms. Germain once again appealed from the decision letters. The Commission heard the appeal and rendered the Decision onApril 9, 2021. [14] As to the November 1, 2004, decision letter, the Commission dismissed Ms.

Germain’s appeal because it concluded that it hadno jurisdiction to make an award of the nature she sought. This was because the Commission determined that s. 193(7) of the Act onlyempowered it to make decisions respecting benefits that “the insurer is entitled to make under the Act” and, at the time of the MVA, theRegulations did not entitle SGI to award benefits for yard care expenses (Decision at paras 211–217). [15] The Commission summarized the remainder of its findings, in the Decision, as follows: [218] In

summary, the Appellant was not successful in appealing the denial of IRB in the January 8, 2003 decision letter as the evidenceof her inability to substantially perform the essential duties of employment after the MVA did not satisfy the Commission on the balance[of] probabilities. [219] The Appellant was partially successful in proving the decision letter of August 26, 2004 was incorrect in that it did not use heremployment class to calculate pre-MVA income.

Given the Commission decision on the first appeal, it is a hollow victory. [220] The Appellant was partially successful in appealing the January 4, 2018 decision letter as the Commission was satisfied on thebalance of probabilities that she had not made a full recovery by the summer of 2002. It is not clear what, if any benefits, might flow fromthis Decision. [221] The Appellant was not successful in appealing the November 1, 2004 decision letter either in respect to rehabilitation benefits orliving assistance benefits.

The Commission was not convinced, on the balance of probabilities, the Appellant’s depression and need forEffexor was caused by the MVA. The Regulations, as they existed in 2002, paid no living assistance benefits for yard care. The Appeal ofthe November 1, 2004, decision letter is dismissed. [222] Finally, the decision letter dated June 23, 2005 terminated funding for Flexeril. The Commission is satisfied on the balance ofprobabilities it was no longer necessary or advisable to lessen the Appellant’s disability. The Appeal is dismissed. III. ANALYSIS A.

Leave to appeal is required [16] The right to appeal from a decision of the Commission is set out in s. 194(1) of the Act. It reads as follows: 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 orappeal commission to the Court of Appeal on a question of law only. [17] The current version of s. 194(1) has been in force since July 3, 2020. Prior to that date, this subsection did not contain the words“[w]ith leave of a judge of the Court of Appeal”, meaning the right of appeal on questions of law was automatic. Ms.

Germain contendsthat the right to appeal is a substantive right and, as such, the leave requirement created by the amendment to s. 194(1) should not haveretroactive application. Because the MVA in which she was involved occurred before the legislative change, she argues that she is entitledto appeal without first obtaining leave. [18] I cannot accept Ms. Germain’s position. In R v Puskas, (SCC), [1998] 1 SCR 1207 [Puskas], the SupremeCourt of Canada addressed this very question.

Puskas was concerned with an amendment to s. 691(2) of the Criminal Code that eliminatedthe right of a criminal accused to appeal to the Supreme Court of Canada without obtaining leave where his or her acquittal was overturnedby the Court of Appeal and a new trial was ordered. In that case, the appellant had been charged and tried before the amendment thatintroduced the leave requirement came into force, but the decision overturning his acquittal was not rendered by the Ontario Court ofAppeal until after the amendment was in force.

The Supreme Court determined that the amended version of s. 691(2) governed, and thatleave to appeal was required. [19] In that respect, the Court held that while the right of appeal without leave is a substantive right, the determination as to whichversion of the governing legislation applies is dependent on when the right accrues.

As Lamer C.J.C. observed, “a right cannot accrue …until all conditions precedent to the exercise of the right have been fulfilled” (at para 14), and the rendering of a judgment by the courtbelow - in that case, the Ontario Court of Appeal - is a condition precedent to the exercise of the right of appeal. [20] Puskas, therefore, is a complete answer to Ms. Germain’s argument. Her right to appeal to this Court did not accrue until theCommission rendered the Decision on April 9, 2021. At that point, the current version of the Act was in force, meaning Ms. Germaincannot appeal without first obtaining leave. B.

Should leave to appeal be granted? 1. The analytical framework [21] As provided in s. 194(1), leave to appeal from decisions of the Commission can only be granted on questions of law.Applications for leave to appeal in such cases are assessed using the analytical framework outlined in Rothmans, Benson & Hedges Inc. v

Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 [ Rothmans ] , modified in the fashion described in Saskatoon (City) v North Ridge Development Corporation , 2015 SKCA 13 at para 55 , 451 Sask R 265. That is to say, an applicant for leave to appeal on a question of law must: (

a) identify a question of law; (

b) demonstrate that the proposed appeal is of sufficient merit to justify leave being granted; and (

c) persuade the Chambers judge that the proposed appeal is of sufficient importance to warrant the attention of the Court. [ 22 ] The applicant bears the onus of demonstrating that the “merit” and “importance” considerations, on balance, weigh decisively in favour of leave being granted ( Rothmans ; Poffenroth Agri Ltd. v Brown , 2020 SKCA 68 at para 45 , [2021] 2 WWR 302). [ 23 ] The bar for testing merit is not set high ( Verdient Foods Inc. v United Food and Commercial Workers, Local 1400 , 2019 SKCA 137 at para 15 ).

The primary consideration in this regard is whether the proposed appeal is “prima facie frivolous or vexatious” or “prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power”.

The merit criterion also requires the Court to consider whether the proposed appeal is apt to unduly delay the proceedings, become rendered moot, or add unduly to their cost ( Rothmans at para 6 ). [ 24 ] As to the importance criterion, Rothmans sets out the following subset of relevant considerations to guide the analysis of whether a proposed appeal is of sufficient importance to warrant determination by the Court of Appeal (at para 6): • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? 2.

The proposed grounds of appeal [ 25 ] In her Draft Notice of Appeal, Ms. Germain raises 11 grounds of appeal. She says the Commission erred in law in the following ways:

(1) By showing a bias against the appellant by their comments on the case at and the start of the hearing and then by favorably reviewing the Respondent’s evidence and disfavorably (sic) viewing the appellant’s evidence;

(2) By misdirecting themselves when they stated that the amount of income earned by the appellant indicated that the appellant was only marginally employed prior to the accident; and

(3) By misreading medical reports and misinterpreting medical evidence and ignoring other some (sic) medical reports; and

(4) By considering the engineer report of Carl Shiels when the Court of Appeal had already rejected such evidence in personal injury cases: and

(5) By considering and putting great weight on the evidence of a physiatrist from Manitoba, who had never seen the appellant and could only testify as to theory evidence not related to the appellant; and

(6) By ignoring the indisputable fact that the Respondent looked at all past medical records of the appellant and could find no prior back injury; and

(7) By stating there was no evidence of need for pain medication or the antidepressant at (sic) or help with yard work when there was ongoing doctor’s reports and receipts for medication and before them, along with the druggists’ report on effects of the medication; and

(8) By stating that the appellant had not filed income tax returns when she in fact had filed all she had; and

(9) By making many erroneous statements and thus misdirecting themselves; and

(10) By finding that the ongoing injuries suffered by the appellant were not caused by the automobile accident; alternatively, by finding that the injuries caused by the accident were resolved within 6 months and not awarding benefits for those six months; and

(11) By misinterpreting the phrase ‘“household duties” as found in the legislation at the time did not include assistance with yard work. 3. Analysis a. Do the proposed grounds of appeal raise questions of law? [ 26 ] Applying the analytical framework described above , the first requirement is that the applicant identify a question or questions of law. Several of Ms.

Germain’s proposed grounds of appeal fail to do that and, as such, cannot form the basis for granting leave to appeal. [ 27 ] In particular, proposed grounds (2), (5), (6) and (10) raise nothing more than disagreements about the weight that should have been assigned to certain evidence and the findings of fact the Commission made as a result. These are not questions of law.

[ 28 ] Proposed ground of appeal (9) is a blanket assertion that the Commission made “many erroneous statements” and thus misdirected itself, but Ms. Germain has not pointed to any specific erroneous statement or misdirection that raises a question of law. [ 29 ] Some of Ms. Germain’s proposed grounds of appeal do raise questions of law. Proposed ground (1), for instance, alleges that the Commission panel that rendered the decision was biased against her.

An allegation that a trier of fact is biased involves a question of law (see, for example: Abrametz v Law Society of Saskatchewan , 2020 SKCA 81 at paras 87–88 ). [ 30 ] Proposed ground (4) alleges that the Commission erred by considering an engineering report provided by Carl Shiels on the basis that the “Court of Appeal had already rejected such evidence in personal injury cases”.

An assertion that the Commission considered evidence that was not properly admissible also raises a question of law. [ 31 ] Reading proposed grounds (3), (7) and (8) generously and collectively, they may be taken as asserting that the Commission made findings of fact by disregarding relevant evidence. Such an assertion raises a question of law (see, for example, Mercier v Saskatchewan Government Insurance , 2020 SKCA 136 at para 25 , 71 MVR (7th) 13 [ Mercier ]). [ 32 ] Proposed ground (11) alleges that the Commission erred in its

interpretation of the meaning of the term “household duties” in the Act and Regulations . A question of statutory

interpretation is a question of law. b. Do the identified questions of law satisfy the Rothmans test? i. Bias of the Commission [ 33 ] Ms. Germain alleges that the Commission was biased against her. She asserts that bias is demonstrated by certain comments in the Decision regarding the nature of her legal practice and the fact that the Commission viewed much of SGI’s evidence more favourably than it viewed hers. [ 34 ] This proposed ground of appeal fails at the “merit” stage of the Rothmans analysis.

Although merit is generally not a high hurdle to clear, leave cannot be granted where a ground of appeal is prima facie destined to fail. I see nothing in the Commission’s reasons that even remotely hints at bias. Nor can bias be found in the fact that the Commission preferred some evidence over other evidence. It is the job of a trier of fact to weigh the evidence, which inevitably entails accepting and/or rejecting certain parts of it in the process of making the findings necessary to reach a decision.

The mere fact that a trier has accepted more of the evidence of one party than of the other does not raise the spectre of bias (see, for example: S.W.B.M. v C.S.M. , 2021 SKCA 64 at para 50 ). This ground of appeal has no chance of success and does not warrant granting leave. ii. Improper admission of the evidence of Carl Shiels [ 35 ] Ms. Germain contends that the Commission erred by admitting an engineering report authored by Carl Shiels. The basis for this argument is her understanding that this Court has, on a prior occasion, “rejected” evidence of the type provided by Mr. Shiels in personal injury cases. Ms.

Germain was not able to identify a specific case in which such a ruling was made and I am not aware of any decision that would render the type of evidence contained in Mr. Shiels’ report legally inadmissible in a hearing before the Commission. [ 36 ] In considering the merit of this proposed ground of appeal, I also observe that, by virtue of s. 196.3 of the Act , the Commission is not bound by the strict rules of evidence and has the power to receive any evidence that it considers to be relevant. Moreover, the record indicates that, at the hearing before the Commission, Ms. Germain agreed that Mr.

Shiels’ report could be entered as evidence. [ 37 ] In light of all this, there is no chance this ground of appeal can succeed. It too fails at the merit stage of the Rothmans analysis. iii. Disregarding relevant evidence [ 38 ] Under this heading, Ms. Germain’s assertions can be summarized as follows: (

a) The Commission disregarded evidence that was relevant to the question of whether she had suffered economic loss; (

b) The Commission disregarded relevant medical evidence concerning the extent of her injuries; and (

c) The Commission disregarded relevant evidence concerning her need for antidepressant and pain medication. [ 39 ] Having reviewed the record that was before the Commission, I am of the view that this proposed ground of appeal also fails to satisfy the Rothmans test. [ 40 ] Ms. Germain’s contention that the Commission disregarded evidence that was relevant to the question of whether she had suffered economic loss focuses on its observations, in paragraphs 107 and 128 of the Decision , that she filed no tax returns for any years subsequent to 2002. Ms. Germain says this evidence was filed.

The record does not support her assertion. Accordingly, I see no basis upon which the argument that the Commission disregarded evidence regarding her financial situation can succeed. [ 41 ] As to her arguments regarding the Commission’s disregard of relevant medical evidence, I do not share Ms. Germain’s view of the Decision . As I read it, the Commission’s reasons demonstrate that it carefully considered the evidence before it, weighed that evidence, and reached certain conclusions.

The Commission may not have referred to all of the evidence in its reasons but that does not, without more, compel the conclusion that relevant evidence was disregarded. Ms. Germain has also not drawn my attention to any specific evidence that she says the Commission disregarded that could reasonably be expected to have affected its bottom-line conclusion. [ 42 ] As such, I am not persuaded that consideration of the Rothmans factors weighs decisively in favour of granting leave on this ground of appeal.

iv. Erroneous

interpretation of the Regulations as they relate to the inclusion of yard work as a “personal home assistance” expense [ 43 ] Finally, Ms. Germain contends that the Commission erred by finding she was not eligible for payment of the Living Assistance Benefit in relation to yard work. [ 44 ] In October of 2004, Ms. Germain contacted SGI to ask for approval to hire someone to shovel snow in the winter and do yard work in other seasons.

By way of the November 1, 2004 decision letter, SGI denied her claim for this benefit, primarily because it determined that the injuries she suffered in the MVA did not render her unable to perform that work herself. [ 45 ] The Commission, however, dismissed Ms. Germain’s appeal on a different basis. It determined that it was without jurisdiction to award benefits for yard work expenses because, at the time of the MVA, those expenses did not fall within the ambit of the Living Assistance Benefit payable under the Regulations . Ms.

Germain says the Commission reached this conclusion by interpreting the Regulations too narrowly. [ 46 ] While this proposed ground of appeal is not entirely without merit, I am not persuaded that consideration of the “importance” criterion weighs decisively in favour of granting leave. Let me explain. [ 47 ] At the time of the MVA, the provision of the Act relating to the Living Assistance Benefit read as follows: 158

(1) Subject to the regulations, if a victim is unable because of an accident to care for himself or herself or to perform the essential activities of everyday life without assistance, the insurer may pay a benefit to reimburse the victim for expenses related to personal home assistance. [ 48 ] The expenses that qualified for reimbursement as “personal home assistance” were defined by s. 44 of the Regulations which, as of the date of the MVA, provided as follows: 44 Subject to the maximum amount set pursuant to

section 158 of the Act , where a victim incurs an expense for personal home assistance that is not covered pursuant to any other Act and provides the insurer with receipts for that expense, the insurer shall reimburse the victim for the expense in accordance with Appendix D. [ 49 ] Appendix D, as of the date of the MVA, included such tasks as personal care, meal preparation, housecleaning, laundry and purchase of supplies under the umbrella of “personal home assistance”.

It made no reference to expenses incurred for yard work that the claimant was unable to perform. [ 50 ] Yard work was not included in the relevant portion of Appendix D until The Personal Injury Benefits Amendment Regulations, 2002 , SR 70/2002 [ Amendment Regulations ], came into force on July 24, 2002. This, of course, was after the date of the MVA and after Ms. Germain’s claim arose. [ 51 ] SGI argues that the Decision cannot be impugned on this point.

It cites this Court’s decision in Mercier as authority for the proposition that benefit-conferring amendments to the Regulations do not have retroactive application. [ 52 ] Ms. Germain’s case is, however, arguably distinguishable from Mercier on the facts. In Mercier , the claimant’s entitlement to benefits had ended before the change to the amended Regulations came into force. That is not necessarily the case here. Ms. Germain was potentially still entitled to benefits on July 24, 2002, when the Regulations were amended to include yard work as an eligible expense.

Therefore, what she was seeking was retrospective application of the amendment, not retroactive application. Thus, in my view, Mercier does not categorically preclude Ms. Germain’s argument. [ 53 ] That said, the problem for Ms. Germain on this proposed ground of appeal lies in the “importance” consideration.

There are several reasons for this. [ 54 ] First, the questions raised by whether the “yard work” amendment has retrospective application, and whether the Regulations as they existed at the time of the MVA should have been read as including yard work as an eligible “personal home assistance” expense are not questions that need to be settled for the benefit of this area of practice going forward. Ms. Germain invites this Court to weigh in on the question of whether the Commission properly interpreted a provision of the Regulations that was repealed or replaced nearly 19 years ago.

She has not, however, drawn my attention to any other live cases that are still wrestling with the issue of whether expenses for yard work could properly be claimed under the “personal home assistance” provision of the Living Assistance Benefit prior to the coming into force of the Amendment Regulations. In fact, given the age of this amendment, I find it difficult to imagine that there are any such cases. This also leads me to conclude that the implications of this proposed ground of appeal are unlikely to transcend the particular circumstances of this case. [ 55 ] Moreover, even if the Commission erred in its

interpretation of whether the amendment had retrospective application, I am also not persuaded that such an error was of any particular consequence. While the Commission found that Ms. Germain had not made a full recovery by the summer of 2002 ( Decision at para 161), it also observed that there was “little other additional evidence with respect to her yard work needs throughout the past 16 years” (at para 209). In light of that, even if the amendment had been applied retrospectively, the evidentiary foundation to determine the amount of benefit payable was lacking. To put that in the language of Rothmans , Ms.

Germain has not persuaded me that determination of the question she has raised would bear heavily on the outcome of the proceedings. [ 56 ] Accordingly, I conclude that leave should not be granted on this proposed ground of appeal. IV. CONCLUSION [ 57 ] For the foregoing reasons, Ms. Germain’s application is dismissed. SGI is entitled to the costs of this application.

“Kalmakoff J.A.” Kalmakoff J.A.