Jacob Zunti Appellant (Appellant) v. Saskatchewan Government Insurance, 2023 SKCA 82

Court of Appeal for Saskatchewan Docket: CACV3235 Citation: Zunti v Saskatchewan Government Insurance , 2023 SKCA 82 Date: 2023-07-26 Between: Jacob Zunti Appellant (Appellant) And Saskatchewan Government Insurance Respondent (Respondent) Before: Schwann, McCreary and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice McCreary The Honourable Madam Justice Drennan On appeal from: 2018 SKAIA 7 , Regina Appeal heard: June 1, 2023 Counsel: Jacob Zunti, on his own behalf Lauren Wihak for the Respondent Schwann J.A. I.

INTRODUCTION [ 1 ] Jacob Zunti was involved in a motor vehicle accident [MVA] on March 13, 2012, in which he sustained a soft tissue injury to his neck and lower back. Following the accident, Mr. Zunti applied to Saskatchewan Government Insurance [SGI] for no fault benefits under

Part VIII of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ]. SGI agreed to provide Mr. Zunti with rehabilitation benefits on a without prejudice basis until such time as it could assess his medical information. [ 2 ] On September 12, 2012, SGI sent Mr. Zunti a letter denying him any further benefits because the medical documentation available to it at the time did “not support more investigation or treatment for accident-related conditions, as there is no indication of medical necessity”. When Mr. Zunti disagreed with that decision, SGI offered to resolve their differences through mediation.

According to SGI, this process led to an agreement whereby Mr. Zunti would undertake a multi-disciplinary assessment funded by SGI and, further, that it would abide by any treatment recommendations arising from that process. [ 3 ] Mr. Zunti completed an eight-week, secondary treatment program with the Life Mark Health Centre. He was discharged from that program on October 16, 2013.

The discharge report noted as follows: Client is instructed to be independent with a home exercise program for at least a four to six week duration and has been educated to increased duration of time frame for work-related activities to an average normal duration to determine if able to self manage intermittent symptomology. Intermittent crisis management if intense retro-orbital suboccipital pain onset occurs with increased duration work activities up to 4 visits in the next six months. [ 4 ] SGI sent a letter to Mr.

Zunti on November 13, 2013 [November 2013 letter], confirming that, as per their mediated arrangement, it agreed to have him attend a multi-disciplinary assessment and to abide by any treatment recommendations made by Life Mark . The letter stated, “This has occurred and SGI has reimbursed your expenses for out of pocket treatment as well. SGI has also agreed to pay the 4 crisis treatments to be direct billed from Life Mark when we receive the discharge report”. [ 5 ] SGI understood that Mr. Zunti disagreed with the Life Mark discharge recommendations.

Accordingly, as the November 2013 letter went on to say, “if you wish to continue to appeal, SGI will allow 60 days from the date of this letter”. [ 6 ] Mr. Zunti appealed the November 2013 letter to the Automobile Injury Appeal Commission [Commission] on January 9, 2014. His appeal was denied. [ 7 ] Mr.

Zunti now appeals from the Commission’s decision on the bases, inter alia , that the Commission lacked jurisdiction to hear his appeal, erred in law by placing the onus on him to prove that he was entitled to further rehabilitation benefits, and made factual errors so significant that they constituted errors of law. Mr. Zunti also brings an application to adduce fresh evidence on appeal. [ 8 ] For the reasons that follow, I would dismiss both Mr. Zunti’s fresh evidence application and his appeal. II. COMMISSION HEARING [ 9 ] The issue before the Commission was whether Mr.

Zunti was entitled to additional rehabilitation benefits beyond those capped by the recommendations contained in the Life Mark discharge report.

[ 10 ] Mr. Zunti argued that the Life Mark program should have been extended and that he should continue to receive as many additional treatments (e.g., chiropractic, massage, etc.) as necessary until such time as he was fully recovered from his MVA injuries, which, according to him, did not happen until March of 2016. To that end, Mr. Zunti sought reimbursement of in excess of $8,000 for costs he personally incurred for chiropractic, acupuncture, massage and karma treatments or services he had received from health care providers between November of 2013 to the end of 2017. [ 11 ] SGI’s position was succinct.

It asserted that Mr. Zunti’s condition and symptoms were not related to the MVA and that, in any event, s. 112 of the AAIA does not require it to provide rehabilitation benefits to the point where an insured achieves pain-free status. [ 12 ] Mr. Zunti testified on his own behalf about his journey of recovery. He told the Commission that the MVA exacerbated injuries he had sustained previously in a 1997 motor vehicle accident. He said he experienced pain in his neck and his eyes. While Mr. Zunti found the Life Mark program helpful, he said he should have received an extension of the treatment part of that program.

Mr. Zunti also testified about an injury he sustained while lifting a couch shortly before the Life Mark program ended, which he said delayed his recovery. [ 13 ] Beyond Mr. Zunti’s testimony, he filed pictures and charts entitled Rolling Thermal Scan, Static EMG Scan Amplitude and Static EMG Scan Asymmetry, along with various internet articles. The scan material was not accompanied by any written or testimonial evidence explaining its meaning or significance to his argument. More importantly, except for the Life Mark discharge report and his former chiropractor’s notes, Mr.

Zunti called no medical witnesses and filed no clinical notes, reports or medical opinions that described any treatment plan, diagnosis or opinion on causation. [ 14 ] SGI called Tanya Foster, a physiotherapist with Life Mark , as a witness. She testified about the treatment plan her team had developed for Mr. Zunti, which she characterized as “secondary treatment”.

The July 31, 2013, Life Mark report outlined the nature of the services he was to receive: PROGRAM GOALS/EXPECTED OUTCOME … Client is to continue to engage in a 5 day per week 2 hour program for a 4 week duration with a projected end date of October 16, 2013 … .

Treatment will include: 1) Manipulation 2–3 times per week initially, tapering off to be completed by end of program 8–10 treatments. 2) Mobilization of cervical spine. 3) Massage therapy. 4) Regional conditioning for cervical and lumbar spine. 5) Global conditioning. 6) Education sessions regarding hurt vs. harm, pain and soft tissue healing. 7) A job-site home visit to review multiple work stations and provided general recommendations. 8) Acupuncture for retro-orbital headaches if client is in agreement. 9) A psychology assessment on intake followed by regular sessions with psychologist through the program. 10) Mr.

Zunti requires education on healthy living and should be encouraged to integrate by increasing his weekly activity level to include a cardiovascular component at home. 11) Ergonomic practice to prevent postural stress. [ 15 ] Ms. Foster also testified about the progress reports LifeMARK had generated along the way, a job-site assessment that was done and its final discharge report. In Ms. Foster’s opinion, the goals of the treatment plan for Mr. Zunti were met, although she recognized that some of his symptoms may continue: Q Okay. In your opinion, were the goals of the program achieved? A Yes.

We will tell clients on the initial day of the secondary program that symptoms are not – there is a potential for symptoms to continue because the time frame from the initial accident to the time frame that they are engaging in a secondary program is – there’s quite a long time. So the goal of the program is for education, for self-maintenance. Hopefully we will achieve and improve biomechanical findings for that client.

Sometimes with the course of the program for some people we don’t, but they have some better understanding and awareness how they can decrease the symptoms that they experience so that they’re not on the worse end. They’re on the lower end. Q And did you understand Mr. Zunti – did you believe Mr. Zunti understood the home-care plan and the self-care plan? A Yes. Q Now, if a patient does not comply with self care and with the home exercise program, what can happen? A Well, a patient can experience an increase in their symptoms because they’re not abiding by the postural microbreaks.

They’re challenging tissues that have recovered but then are getting re-irritated. So we can have an onset of decreased function as well as an onset of increased symptoms. [ 16 ] SGI also called Dale Mireau, a chiropractic consultant, as a witness. Dr. Mireau was retained by SGI to review Mr. Zunti’s medical file, which dated back to its initial decision in 2012. Dr. Mireau testified that he accepted the findings of Mr. Zunti’s former chiropractor, Kerry Clarke, who had opined in 2012 that treatment for Mr. Zunti’s recovery was not medically necessary; instead, he said

Mr. Zunti was best suited for as-needed symptomatic relief because he did not follow the self-management exercises and advice to promote recovery. Dr. Mireau authored a second opinion on March 3, 2014. In it, he accepted the conclusion set out in the Life Mark discharge report: i.e., that Mr. Zunti had recovered from his MVA injuries and that no further treatments were warranted. Dr. Mireau’s third opinion, dated June 16, 2016, echoed his earlier conclusions. [ 17 ] As Dr. Mireau pointed out, the reasons people seek chiropractic care are varied.

Along that same theme, he described the difference between chiropractic services that are designed to address acute care needs – which he said are medically necessary – compared to maintenance care, which is discretionary: Q Okay. And can you comment on which of these are typically medically necessary or necessary. A Right. Chiropractic for maintenance, the health maintenance or to prevent trouble is, in my view, discretionary. The health care provider and the patient decide that this is how they’re going to manage this health concern.

One could consider chiropractic after an acute – it’s definitely necessary after an acute injury, if it promotes recovery and mitigates disability and there are clinical signs to treat. After a serious injury, for example, in a case where someone has had an injury to a knee or a particular fracture, say, and a person is prone – may get post-traumatic arthritis, there might be a role for chiropractic in a case like that to assist with joint stiffness and pain as a direct result of the injuries sustained in the – for example, in a car accident.

And one could consider short courses of treatment during acute episodes as medically necessary in that case with a goal to support the person’s functional ability and the ability to get on with the activities of daily living. Q So just to clarify then, maintenance care would be discretionary? A Yes. Maintenance and preventative care is discretionary. [ 18 ] Dr. Mireau believed Mr. Zunti had achieved maximum medical improvement by the end of the LifeMARK program. In the following exchange, Dr. Mireau addressed Mr.

Zunti’s suggestion that he needed further chiropractic care following completion of the program: Q Okay. Now, moving off this subject, what would your comments be regarding Mr. Zunti’s testimony that the chiropractic treatments are providing him with some relief from his symptoms? A Well, I couldn’t disagree with that because I suspect that the chiropractic treatment does provide some relief. Q Okay. Does that change your opinion of whether the treatment is medically necessary? A No. Q Why is that?

A Because it’s not promoting recovery and there’s no – the short term relief of symptoms for a chronic condition can be treated in many ways, including going to a chiropractor or using self-management. But I’m going to refer back to what the evidence shows now about the treatment of chronic soft-tissue conditions. Open-ended, practitioner-based care programs are discouraged. And I’m – that’s – I’m not giving you my opinion. I’m telling you what the literature says. Q Mhmm. All right.

And just my last question is just based on your review of the file and the information that you have, the medical information you have, as well as the other information, is it your opinion that Mr. Zunti was returned to what he reported to be his pre-injury or pre-motor vehicle accident state after the secondary treatment or close to it? A I think that Mr. Zunti was at maximum medical improvement, maximum functional improvement and maximum therapeutic benefit on October 14th, 2013. [ 19 ] Finally, Dr.

Mireau discounted the need for the various scans that had been performed by Scott Harder of Harder’s Family Wellness Centre: i.e., the rolling thermal scan, the static EMG scan amplitude and the static EMG scan asymmetry. [ 20 ] The Commission accepted SGI’s evidence, and it, specifically, accepted Dr. Mireau’s opinion to the effect that Mr. Zunti “had reached maximum medical improvement based on the Life Mark discharge report” ( T.C. v Saskatchewan Government Insurance , 2018 SKAIA 7 at para 36 [ Commission Decision ]). [ 21 ] While the Commission did not reject Mr.

Zunti’s evidence, it gave little weight to it because (

a) he had experienced an unrelated injury around the time of his discharge from the Life Mark program (from lifting a couch), and (

b) he failed to produce a medical opinion explaining how the treatments he had received between 2013 and 2017 related to the MVA. As the Commission stated, “Without medical evidence linking the treatments to the injuries sustained in the MVA, we are unable to conclude that the treatments were necessary or advisable to contribute to the rehabilitation of the Appellant or to facilitate his recovery from the MVA as provided in

section 112 of the [ AAIA ]” (at para 37). [ 22 ] The Commission also rejected Mr. Zunti’s second argument that the four crisis management treatments recommended in the Life Mark discharge report was evidence of the fact that he had not yet achieved his pre-MVA medical status and that reimbursement for the cost of the various treatments he had received between 2013 and 2017 were therefore justified as being medically necessary. The Commission gave two reasons for its rejection and determination (at para 38): (

a) the four crisis treatments were intended to assist him “following a lengthy work session” (i.e., sitting between 12–15 hours per day) and did not “trigger the renewal of a new round of treatments”; and (

b) no medical evidence was adduced by Mr. Zunti to suggest that the “Life Mark discharge report treatment recommendations were inappropriate or that an increased number of treatments were required for the injuries sustained in the MVA”. [ 23 ] For the foregoing reasons, the Commission denied Mr. Zunti’s appeal and upheld SGI’s November 13, 2013, decision. III. FRESH EVIDENCE

[24] As a preliminary matter, Mr. Zunti applies to adduce fresh evidence on appeal. It consists of an affidavit sworn by him, alongwith five exhibits appended to his affidavit. As I understand Mr. Zunti’s argument, the purpose underpinning the proposed evidence is tocast doubt on the credibility of Dr. Mireau and thereby undermine his opinion that further treatment was not medically necessary. He saysthe five exhibits provide an evidentiary foundation for that argument and ought to be considered by this Court in the context of his appeal.In brief terms, those exhibits consist of the following: (

a) Exhibit “A” provides some basic biographical information about Dr. Mireau. (

b) Exhibit “B” purportedly shows the partners behind Saskatchewan Medical Rehabilitation Clinic [SMRC], of whichDr. Mireau is said to be one. (

c) Exhibit “C” is a letter addressed to Mr. Zunti from SGI in response to an access to information request he had made under TheFreedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01, for “[f]inancial records detailing all sums paid by SGI toSMRC Rehab for rehab-related services for SGI injured insureds – January 1, 2000 to January 1, 2020”. SGI’s response shows the yearlyamounts SMRC received from SGI. He says the amount in 2020 was roughly $150,000 less than what SMRC had received in 2000 andthat its SGI earnings were consistently lower during the period 2013 to 2019, as compared to previous years. (

d) Exhibit “D” is a chart showing, according to Mr. Zunti that, in the early years of Commission hearings, the appeal resultswere evenly divided. However, he says the chart reveals that the frequency with which appellants prevailed on appeal began to tail off in2009 and that, from 2011 until 2019, the Commission rarely rendered decisions that were unfavourable to SGI. (

e) Exhibit “E” is a printout from SGI’s website. Mr. Zunti says it constitutes a warranty of rehabilitation benefits that inducedhim to remain with no fault insurance coverage instead of moving to tort coverage. [25] Mr. Zunti avers that he obtained this information after the Commission hearing because he suspected Dr. Mireau might havehad an underlying reason or motivation to give favourable evidence for SGI at the hearing. Pointing to exhibit C in particular, hespeculates that, because SMRC received fewer gross billings from SGI over the past few years, Dr.

Mireau may have been subconsciouslyinclined to tailor his evidence to support SGI’s position in a way that would somehow lead to increased business from the insurer forSMRC. [26] Pulling it all together, Mr. Zunti posits that, when the exhibits are considered collectively, they demonstrate that he did not geta fair and impartial hearing before the Commission. His argument in this regard is summed up in his May 19, 2023, affidavit, filed insupport of his fresh evidence application: 25.

Dissatisfied with the way the Appellant’s AIAC tribunal hearing had gone, the AIAC tribunal decision, and the reasons it gave forreaching its decision, including the weight it gave to articles I provided from the internet respecting whiplash injuries and occipitalneuralgia and the weight it gave to the testimony and answers in cross-examination the Respondent’s Expert Witness had given at theAIAC tribunal hearing, finding the way tribunal personnel pretended not to have familiarity with the Expert Witness at the tribunalhearing when I considered it likely that the Expert Witness had probably appeared before the tribunal panelists or the majority of them onprevious occasions curious, and dissatisfied with the factual error the tribunal decision contained concerning statements relating to theaccident I made in my application for benefits and in my testimony before the tribunal, I came to wonder about the impartiality andobjectiveness of the tribunal that heard my appeal.

In fact I had less pleasant thoughts suspecting the AIAC had become a sham merelyacting as a rubber stamp of SGI decisions. [27] Mr. Zunti has not persuaded me that his fresh evidence application should be granted. [28] First, this is clearly a new issue on appeal. Mr. Zunti never expressed a concern at the hearing about the Commission’s lack ofimpartiality or the fairness of the hearing process itself. Neither did Mr. Zunti object to the admissibility or qualifications of Dr. Mireau orprobe Dr.

Mireau about his interest in SRMC and its connection to the stream of SGI-generated revenue it had received over the years.SGI says it would be prejudiced if Mr.

Zunti is able to pursue this line of argument for a first time on appeal because accepting theevidence would deprive it of an opportunity to opine on the question of the admissibility of the proposed evidence or respondmeaningfully to his allegations of bias. [29] As a general rule, this Court does not permit new arguments to be raised for the first time on appeal: see, for instance, Silzer vSaskatchewan Government Insurance, 2021 SKCA 59 at paras 35–39 [Silzer]; Ernst v Saskatchewan Government Insurance, 2019 SKCA12 at para 8, 34 MVR (7th) 180 [Ernst]; and Farr-Mor Fertilizer Services Ltd. v Hawkeye Tanks & Equipment Inc., 2002 SKCA 44 atpara 3, 219 Sask R 148.

The theory underlying this stance rests in the desirability for finality in litigation and that the law “requireslitigants to put their best foot forward” (Barendregt v Grebliunas, 2022 SCC 22 at para 38, 469 DLR (4th) 1 [Barendregt], quotingDanyluk v Ainsworth Technologies Inc., 2001 SCC 44 at para 18, [2001] 2 SCR 460) and that they not get a “second kick at the can”(S.F.D. v M.T., 2019 NBCA 62 at para 24, 49 CCPB (2nd) 177).

Where a similar bias-type argument was raised on appeal in Ernst, thisCourt observed that it would be unfair to SGI to be required to “respond where that party might have adduced additional evidence at trial ifit had been aware of the issue” (at para 8). [30] There is a second reason to dismiss Mr. Zunti’s application: it does not satisfy the R v Palmer, (SCC), [1980] 1SCR 759 [Palmer], test for the introduction of fresh evidence on appeal.

The Palmer test was recently affirmed by the Supreme Court inBarendregt: [29] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal: Catholic Children’s Aid Societyof Metropolitan Toronto v. M.(C.), (SCC), [1994] 2 S.C.R. 165, at p. 188; United States of America v. Shulman, 2001SCC 21, [2001] 1 S.C.R. 616, at para. 43. Whether in criminal or non-criminal matters (May v. Ferndale Institution, 2005 SCC 82, [2005]3 S.C.R. 809, at para. 107), courts have typically applied the four criteria set out by this Court in Palmer when parties seek to adduceevidence on appeal: (

i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will not beapplied as strictly in a criminal case as in civil cases);

(ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial. … [31] The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice.

It ensures that theadmission of additional evidence on appeal will be rare, such that the matters in issue between the parties should “narrow rather thanexpand as [a] case proceeds up the appellate ladder”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2,[2000] 1 S.C.R. 44, at para. 10. [31] With regard to the due diligence criterion, it is clear from Mr. Zunti’s affidavit that he construed the bias argument after theCommission had rendered its decision. As Mr. Zunti deposed, the following concerns prompted him to compile the information: (

a) his dissatisfaction with the way that the Commission hearing proceeded; (

b) the Commission’s disregard for the internet articles he had filed; (

c) the testimony of Dr. Mireau; and (

d) the Commission’s bottom-line decision. [32] What seems clear from Mr. Zunti’s material is that it was not until after the hearing and the release of the Commission Decisionthat he sought to build a case to allege that the appeal process was slanted in SGI’s favour. If his fresh evidence is accepted, Mr. Zuntibelieves it will show that the Commission should have given Dr. Mireau’s evidence less weight or that it should not have been admitted atall because of his lack of independence and impartiality. Further, with the exception of exhibits C and D, all of the documents Mr.

Zuntiseeks to adduce on appeal were in existence at the time of the hearing. While the results contained in those exhibits were compiledfollowing the hearing, I am satisfied that the information contained in them existed long before the hearing; and further, by his ownadmission, Mr. Zunti had ample time to prepare for the hearing. [33] Nonetheless, the law recognizes that some flexibility should be applied to the due diligence prong of the Palmer test whereissues of procedural fairness are raised on appeal.

The majority in Barendregt spoke about the relaxation of this part of the test in this way:“Palmer does not, however, apply to evidence going to the validity of the trial process itself … nor to evidence adduced ‘as a basis forrequesting an original remedy in the Court of Appeal’, such as a stay of proceedings for an abuse of process (Shulman, [2001 SCC 21] atparas. 44–46)” (at para 30). [34] SGI concedes that, in some instances, procedural fairness concerns can arise after a hearing or after a decision is rendered orboth.

When that occurs, a reviewing court may consider the allegations as a de novo matter and make its own findings of fact: see, forinstance, Henthorne v British Columbia Ferry Services Inc., 2011 BCCA 476 at para 79, 344 DLR (4th) 292. That said, as SGI maintains,regardless of whether this argument is viewed as a new issue on appeal arising from the proposed fresh evidence and, thus, subject toPalmer, or as a de novo procedural fairness allegation, Mr. Zunti’s argument must fail based on the type and quality of the evidence that heseeks to introduce on appeal. [35] Simply put, contrary to Mr.

Zunti’s implication that the Commission was partial to Dr. Mireau because he appeared frequentlybefore it, there is no evidence that Dr. Mireau had appeared as an expert before the Commission or this set of panel members prior toMr. Zunti’s appeal hearing or, if he had, the frequency with which he had done so. Second, as I discuss below, there is no credibleevidence that Dr. Mireau’s testimony was, as suggested by Mr. Zunti, tailored so as to curry favour with SGI in the hope that it woulddirect more work to SMRC. This is little more than a baseless, unfounded allegation, which even Mr.

Zunti describes as no more than asuspicion. [36] Finally, as SGI correctly points out, a tribunal benefits from the presumption of impartiality and the threshold to establish anapprehension of bias is demanding: “the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons,applying themselves to the question and obtaining thereon the required information” (Committee for Justice and Liberty v Canada(National Energy Board), (SCC), [1978] 1 SCR 369 at 394, and quoted in Wewaykum Indian Band v Canada, 2003 SCC45 at para 60, [2003] 2 SCR 259).

Generally speaking, the law requires a party levelling an allegation of this sort to raise it at the earliestopportunity: Keita v Canada (Citizenship and Immigration), 2015 FC 1115 at para 27. [37] Setting aside the due diligence prong, neither do I find the proposed evidence passes muster on the balance of the Palmer test.Exhibits A and B are not material or relevant to the issue that was before the Commission. These exhibits simply provide somebiographical data about Dr. Mireau along with the vague suggestion that he is somehow connected to SMRC.

That alone is not compellinginformation. [38] While I accept that the information contained in exhibit C is credible, in the sense that it appears to be SGI’s response to afreedom of information request, the letter provides no detail about what type of services SMRC had provided to SGI. Further, without anexplanation for SMRC’s decline in revenue from its SGI billings, this exhibit is hardly probative. For example, in the years when revenueswere higher, there were significantly more pay periods and number of claims, which may explain the difference. [39] In any event, as mentioned above, Mr.

Zunti proposes to adduce this exhibit on appeal to support his suspicion thatDr. Mireau’s alleged favourable evidence was predicated on a subconscious motivation to increase SMRC revenues. That allegation isposited on no more than an unsubstantiated hunch. [40] Exhibit D is simply raw data about appeal outcomes and is not probative of the issues on this appeal. While on the surface of

things, it could be read to suggest that SGI has increasingly prevailed before the Commission more so than insureds, there could be any number of reasons for that result. [ 41 ] Exhibit E is a printout from an archived page on SGI’s website, which contains general information about no fault insurance. It offers nothing to advance Mr. Zunti’s arguments on appeal. While Mr. Zunti may have interpreted the website information to mean that he was assured of rehabilitation benefits, entitlement to

Part VIII benefits is governed by the provisions of the AAIA , not the content of a generic website page. To the extent Mr. Zunti feels this page holds out some form of warranty of benefits, that argument was not put to the Commission. [ 42 ] For all those reasons, Mr. Zunti’s application to adduce fresh evidence on appeal must be dismissed. IV. ISSUES ON APPEAL [ 43 ] Mr. Zunti’s appeal itemized 24 separate grounds. However, given that his right of appeal is limited to a question of law, and that he substantially narrowed his arguments at the time of the appeal hearing, I would reframe the issues as follows: (

a) Did the Commission lack jurisdiction to hear his appeal? (

b) Did the Commission err in law by incorrectly placing the onus on Mr. Zunti to prove that he was entitled to further rehabilitation benefits? (

c) Do Mr. Zunti’s allegations of factual error give rise to a question of law? V. ANALYSIS A. The legislation considered [ 44 ] I find it useful to begin with a review of the provisions of the AAIA that bear on Mr. Zunti’s appeal, beginning with the right and scope of an appeal to this Court. [ 45 ] Section 194(1) 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. [ 46 ] As this Court has repeatedly held, it lacks the jurisdiction to hear an appeal from a Commission decision on any ground other than on a question of law: Mercier v Saskatchewan Government Insurance , 2020 SKCA 136 , 71 MVR (7th) 13, and Howells v Saskatchewan Government Insurance , 2008 SKCA 163 at para 6 , 324 Sask R 36. This means that careful attention must be paid to whether the grounds on which Mr.

Zunti’s appeal is based give rise to questions of law; if not, there is no jurisdiction to proceed: Cop v Saskatchewan Government Insurance , 2019 SKCA 75 , [2019] 2 WWR 396 [ Cop ]. [ 47 ] Many of Mr. Zunti’s arguments challenge the Commission’s findings of fact, including the weight assigned to the evidence.

As weight is a question of fact, it is not, per se, appealable: see Van de Sype v Saskatchewan Government Insurance , 2020 SKCA 18 at para 112 [ Van de Sype ]. [ 48 ] While an appeal from a f inding of fact is not permitted under s. 194(1), 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. [ 49 ] Mr. Zunti’s issue with SGI relates to the termination of rehabilitation benefits, which is addressed in s. 112 of the AAIA : Rehabilitation 112

(1) In this section, “rehabilitation” includes any or all of the following measures, programs and treatments that the insurer considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen the insured’s disability caused by the accident and to facilitate the insured’s recovery from the accident: (

a) physical and acquired brain injury programs and treatment; (

b) occupational and vocational training and programs; (

c) alterations to an insured’s residence; (

d) modification or purchase of a motor vehicle for an insured;

(

e) purchase of special equipment for an insured; (

f) any additional prescribed measure, program or treatment.

(2) Subject to the regulations, the insurer may take any measure it considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen a disability resulting from bodily injury and to facilitate the insured’s recovery from the accident. [ 50 ]

Section 12 of The Personal Injury Benefit Regulations , RRS c A-35 Reg 3 , supplements s. 112 of the AAIA . It reads as follows: Rehabilitation – treatment 12

(1) Subject to subsections (2) to (5), for the purpose of

section 112 of the Act, a measure, program or treatment that meets the requirements described in subsection (2) is deemed to be: (

a) necessary or advisable to contribute to the rehabilitation of the insured; (

b) necessary or advisable to lessen the insured’s disability caused by the accident; or (

c) necessary or advisable to facilitate the insured’s recovery from the accident.

(2) A measure, program or treatment is deemed to be necessary or advisable as set out in subsection (1) if a practitioner provides the insurer with a written report that establishes to the satisfaction of the insurer that an insured exhibits objective clinical evidence that ongoing use or application of a specific measure, program or treatment is required to: (

a) lessen the insured’s disability; or (

b) facilitate the insured’s recovery.

(3) For the purposes of subsection (2), a measure, program or treatment is deemed to ‘lessen the insured’s disability’ or ‘facilitate the insured’s recovery’ if: (

a) the insured has not reached a maximum level of recovery and further measures, programs or treatments are required to improve the insured’s ability to function either physically or mentally; or (

b) the insured has reached his or her maximum medical improvement, but follow-up measures, programs or treatments are required to address a decline in the insured’s physical or mental ability to function.

(4) A measure, program or treatment described in subsection (5) is deemed not to be: (

a) necessary or advisable to contribute to the rehabilitation of the insured; (

b) necessary or advisable to lessen the insured’s disability caused by the accident; or (

c) necessary or advisable to facilitate the insured’s recovery from the accident.

(5) A measure, program or treatment is deemed not to be necessary or advisable for the purposes of subsection (4) if: (

a) its purpose or effect is to support the insured’s general well-being or maintain the insured’s optimum health; (

b) it is not established as either effective or safe in the evidenced-based literature; or (

c) its application, duration or frequency is at the discretion of the insured . (Emphasis added) [ 51 ] The insurer’s decision to grant rehabilitation benefits under s. 112 is discretionary in nature. The discretion conferred on SGI was addressed in Cass v Saskatchewan Government Insurance , 2021 SKCA 130 , 83 MVR (7th) 202 [ Cass ] as follows: [96] Further, unlike entitlement to an [income replacement] benefit, a rehabilitation benefit covered by s. 112 of the [ AAIA ] does not hinge on whether an insured is unable to continue with their employment.

The insurer, rather, is vested with considerable discretion to “take any measure it considers necessary or advisable to contribute to the rehabilitation of an insured” ( s. 112(2) ). The Regulations elaborate somewhat on how this discretion is to be exercised. Section 12(2) of the Regulations provides that a treatment is advisable if there is objective clinical evidence that the treatment is required to lessen the insured’s disability or facilitate recovery.

Treatment for those purposes is recognized where “the insured has not reached a maximum level of recovery” and “treatments are required to improve the insured’s ability to function either physically or mentally” (s. 12(3)(a)). [ 52 ] To similar effect, this Court in Van de Sype noted that the criteria guiding the insurer’s decision to fund rehabilitation benefits turns on whether the treatment is medically necessary and contributes to rehabilitation or lessens a disability: [104] At the crux of whether [a benefit] is payable is a determination of functionality and whether a person is entirely or substantially unable to perform his or her essential duties.

This often means that a person may be able to substantially function in carrying out their job duties but continue to have pain. Absence of pain and functionality are not synonymous. B. The Commission’s jurisdiction to hear and determine the appeal

[ 53 ] Mr. Zunti argues that, by failing to confine itself to his arguments about SGI’s September 12, 2012, denial letter, the Commission acted without jurisdiction. He asserts that it veered off course by improperly focusing on the events following the 2012 decision, notably the Life Mark discharge report and Dr. Mireau’s testimony, which he says were irrelevant to what happened in 2012. Mr. Zunti claims that the Commission lacked the jurisdiction to treat his appeal as if it were an appeal from SGI’s November 2013 letter. [ 54 ] Pursuant to s. 191 of the AAIA , a person may appeal a decision of the insurer made under

Part VIII of the AAIA to either the Court of King’s Bench or the Commission within 90 days after the date of the insurer’s written decision or the completion of mediation. [ 55 ] As set out above, SGI issued a denial of treatment letter on September 12, 2012, in which it gave Mr. Zunti the option of appealing its decision or proceeding to mediation. He chose the latter course of action that led to the multi-disciplinary assessment and SGI’s promise to abide by any treatment recommendations arising from the assessment process. In its subsequent letter, dated November 13, 2013, SGI informed Mr.

Zunti that it would abide by Life Mark ’s recommendations of four crisis treatments. Dissatisfied with SGI’s decision, Mr.

Zunti filed an appeal with the Commission from the November 2013 letter, in which he provided the following reasons for his appeal: I continue to suffer pain in my neck more frequently than I suffered it when I was in a relatively pain free status from 2008 until my accident, and I continue to suffer pain in my left eye – though with less frequency now than I did b4 [sic] my treatments and strengthening program at Life Mark – that I did not suffer from during the period I was in relatively pain free status from 2008 until my 03/13/2012 accident.

SGI’s obligations end when I am returned to the health I was in prior to my 03/13/2012 accident, not my completion of a Life Mark program. [ 56 ] While Mr. Zunti may wish to have had his appeal confined to the September 12, 2012, letter – undoubtably with a view to excluding the evidence from the Life Mark reports and Dr. Mireau – the record reveals that he did appeal the November 2013 letter. In any event, the issue was the same: Mr. Zunti believes he should be entitled to rehabilitation benefits until such time as he is returned to the state of health he enjoyed prior to the MVA.

Given the procedural history, the Commission did not operate from any misunderstanding about its authority to hear Mr. Zunti’s appeal. It properly cast the issue in these terms: “The issue to be determined by the Commission is whether or not the Appellant is entitled to additional rehabilitation benefits, other than as set out in the Life Mark discharge report, as a result of injuries sustained in the MVA” ( Commission Decision at para 7). [ 57 ] Finally on this point, Mr.

Zunti asserts that the mediator or mediation process, which he says denied him further treatment, effectively operated as a decision-making body. With respect, Mr. Zunti misses the point. The mediation process was an attempt to obtain a consensual resolution to his dispute with SGI over his entitlement to further rehabilitation benefits. Lest there be any misapprehension about the role of the mediator, SGI’s September 12, 2012, letter informed Mr. Zunti that the mediator was not a decision-maker: “the mediator cannot make any decision that is binding on you or SGI”.

In any event, the fact that he participated in mediation and the Life Mark program logically implies that he agreed with the mediated resolution, from which he now appears to resile. As an aside, it is unfortunate for all concerned that the mediated resolution was not documented in some way. C. The onus of proof [ 58 ] Mr. Zunti takes issue with the fact that his evidence was not given much weight by the Commission. Embedded within his argument are two propositions: (

a) the Commission improperly placed the onus on him to establish that SGI was wrong to discontinue his rehabilitation benefits; and (

b) properly interpreted, s. 112 of the AAIA entitles insureds to continue to receive rehabilitation benefits until they achieve the state of health enjoyed prior to the accident. [ 59 ] On the matter of onus, it is generally accepted that an insured bears the burden of proof with respect to entitlement to benefits, but SGI bears the burden when benefits are terminated: see Ballantyne v Saskatchewan Government Insurance , 2015 SKCA 38 at para 15 , 457 Sask R 254 . [ 60 ] The Commission did not address the question of onus. That said, I see nothing in its decision to suggest that it approached Mr.

Zunti’s appeal from the perspective that he bore the burden of proof. Instead, as I will discuss, the Commission assessed Mr. Zunti’s appeal in light of the evidence both parties had put before it. [ 61 ] The Commission began its decision by reviewing SGI’s evidence. It commented on the testimony of Ms. Foster, who had discussed the subjective and objective findings of the Life Mark assessments and the conclusions reflected in the discharge report with respect to the need for any continuing treatment. The Commission also canvassed Dr. Mireau’s three opinion memoranda and his testimony. It focussed on Dr.

Mireau’s first report, which was a synopsis of a chiropractic report that had been prepared for Mr. Zunti in 2012 by his then chiropractor, Dr. Clarke. As mentioned above, Dr. Clarke opined that Mr. Zunti had suffered a soft tissue injury but was able to work and participate in the activities of daily living. Dr. Mireau went on to comment on how Mr. Zunti did not follow his treatment program. [ 62 ] The Commission also considered Mr.

Zunti’s evidence in light of his principal argument: because he continued to experience pain after completing the Life Mark program, and had not yet completely recovered from his MVA injuries, SGI was obliged to reimburse him for the costs he incurred in the patient-directed treatments he had received between 2013 and 2017. The Commission found it telling that Mr. Zunti did not call evidence about whether the treatments he had received from health care providers, such as Dr. Harder, were medically necessary. The Commission summarized Mr.

Zunti’s evidence and argument in this way: [20] The Appellant testified he recovered from his MVA injuries by March, 2016, save and except for a possible claim he may have for a collapsed disc. The Appellant did not file any clinical reports, medical opinions, or clinical notes from [a Chiropractic Centre], which referred to a medical treatment plan or provided a diagnosis or a causation opinion. Three pages of pictures/charting were filed which referred to “rolling thermal scan segmental NCM on 6 degrees Fahrenheit” and “Static EMG Scan Amplitude on 25 uV scale” as well as

“Static EMG Scan Asymmetry on 200% Position Seated”. However no written explanation was provided in regard to how to read thedocuments. The Appellant testified the [Chiropractic Centre] treatments helped alleviate his symptoms and gave his body time to recover. [63] While the Commission did not reject Mr. Zunti’s evidence, little weight was given to it because of a lack of context andbecause it seemed to consist of Mr. Zunti’s unsupported, subjective opinion about his state of health and his argument that furthertreatments were required.

That left the Commission with only SGI’s medical evidence, which caused it to say, “There was no medicalopinion or evidence indicating the LifeMark discharge report treatment recommendations were inappropriate or that an increased numberof treatments were required for the injuries sustained in the MVA” (at para 38). [64] There is one final aspect to the onus of proof issue that further undercuts Mr. Zunti’s argument.

In Cop, Leurer J.A. made thepoint that the question of who bears the onus or burden of proof is seldom determinative in civil matters: [53] I would conclude on this issue by observing that the existence of a persuasive (legal) burden of proof is seldom determinative in civilproceedings, where a court or tribunal is required to make determinations on the basis of a balance of probabilities. The burden simplymeans that “a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard”: Sidney N. Lederman, Alan W.Bryant, Michelle K.

Fuerst, & John Sopinka, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 94. In civilproceedings, if there is evidence that allows the trier of fact to reach a determination, the burden does not come into play at all. This pointwas made by Spence J. in Arnold v Teno, (SCC), [1978] 2 SCR 287 at 298, adopting as authority the judgment of ViscountDunedin in Robins v National Trust Co., (UK JCPC), [1927] 2 DLR 97 (PC) at 100–101 [Robins]. I will expand slightlyon the quote from Robins adopted by Spence J: Onus is always on a person who asserts a proposition or fact which is not self-evident.

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

But onus as a determining factor of the wholecase can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onuswill determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus hasnothing to do with it, and need not be further considered. [65] In

summary, there was no error with how the Commission dealt with the issue of onus. [66] The second aspect of this ground of appeal concerns the Commission’s

interpretation of s. 112 of the AAIA. As noted, Mr. Zuntiadamantly maintains that he was entitled to ongoing rehabilitation benefits until he achieved his pre-MVA status of health – or, as he put itin his appeal from the November 2013 letter, “SGI’s obligations end when I am returned to the health I was in prior to my 03/13/2012accident, not my completion of a LifeMark program”. [67] A similar argument was raised but rejected in Cop, where Leurer J.A. outlined the preconditions necessary to triggerentitlement to rehabilitation benefits under s. 112 – “As I mentioned earlier, s. 112 … embedded two basic preconditions to Mr. Cop’sentitlement to income replacement benefits: (

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

b) a causalconnection between that inability and the accident” (at para 42): see also Cass at para 96 and Piche v Saskatchewan GovernmentInsurance, 2020 SKCA 53 at paras 66 and 77, leave to appeal to SCC refused, . [68] While the Commission did not deal with this argument head on, it appears to have accepted SGI’s

interpretation of s. 112 whenit held as follows (repeated here for reference): “Without medical evidence linking the treatments to the injuries sustained in the MVA, weare unable to conclude that the treatments were necessary or advisable to contribute to the rehabilitation of the Appellant or to facilitate hisrecovery from the MVA as provided in

section 112 of the [AAIA]” (Commission Decision at para 37). Mr. Zunti cited no jurisprudence tosupport a broader

interpretation of s. 112, i.e., that benefits must continue until an insured fully recovers from injuries sustained in a motorvehicle accident. [69] To conclude, the Commission considered the question of medical necessity based on the evidence of the parties. However, itfound “[t]here was no medical opinion or evidence indicating the LifeMark discharge report treatment recommendations wereinappropriate or that an increased number of treatments were required for the injuries sustained in the MVA” (at para 38). I see no legalerror with how the Commission dealt with entitlement under s. 112. D.

Allegations of error in the findings of fact [70] The issue of whether rehabilitation benefits were medically necessary for Mr. Zunti is a question of fact or, at best, one ofmixed fact and law. It does not raise a question of law. Given the limited scope of this Court’s jurisdiction under s. 194(1) of the AAIA,Mr.

Zunti can only succeed on this ground of appeal if he can demonstrate that the Commission Decision was made in the face of “noevidence or irrelevant evidence, or in disregard of relevant evidence, or upon a mischaracterization of relevant evidence, or on anunfounded or irrational inference of fact” (Cop at para 31): see also Murphy at para 5 and Cass at para 70. [71] The answer to Mr. Zunti’s argument lies in the fact that the Commission was not required to accept his testimony and that hehad adduced virtually no medical evidence to challenge or counterbalance Dr.

Mireau’s review of his case file or the LifeMark dischargereport. That state of play left the Commission with SGI’s uncontradicted evidence to the effect that further treatment for him was notmedically necessary. Simply put, while Mr. Zunti proffered his own opinion as to the state of his health and whether (in his view) furthertreatments were necessary to address his MVA injuries, the Commission was not obliged to prefer his lay opinion evidence over thatpresented by SGI.

A similar argument was raised but rejected by this Court in Van de Sype, albeit in the context of competing medicalopinions: [133] I am satisfied the Commission did not ignore or misunderstand Dr. Oberholzer’s evidence generally, or his evidence connectingMr. Van de Sype’s symptoms to the accident specifically. The Commission reviewed Dr. Oberholzer’s evidence in detail (as explainedabove) but did not accept it. It gave reasons for rejecting the evidence. The Commission found there was no MRI or X-ray evidence to

substantiate Mr. Van de Sype’s symptoms at the hearing. The Commission preferred the evidence of Dr. Alport as it was entitled to do. [72] As mentioned above, while the Commission did not reject Mr. Zunti’s testimony outright, it obviously gave it less, if any,weight. Viewed in this way, Mr. Zunti’s argument reduces to an attempt to challenge the weight assigned to his evidence by theCommission.

That was a matter for the Commission to assess and constitutes a finding of fact that cannot be appealed to this Court:“Issues relating to admissibility stand in contrast to questions as to the weight that is attached to evidence that is received. Only the formeris subject to an appeal to this Court” (emphasis in original, Cop at para 21). [73] Mr. Zunti goes on to suggest that Dr. Mireau’s evidence should have been rejected because it was fraught with factual error. Hepoints to how Dr. Mireau’s March 3, 2014, memorandum to SGI, incorrectly referred to Mr.

Zunti’s neck disability index [NDI] score asbeing 24% when it should have been 42%. The higher number identified by Mr. Zunti is found in the initial LifeMark assessment of June19, 2018, under the entry labelled “Patient self rating of disability”, where Mr. Zunti reported his perceived or subjective disability asbeing 21/50 or 42%. However, Dr. Mireau’s testimony simply echoed subsequent LifeMARK findings, which revealed a 24% disability. [74] To sum up, unless the Commission erred in its handling of the evidence in the way described in Murphy, Mr.

Zunti’s argumentmust be rejected because it is no more than an attempt to appeal findings of fact, the weight assigned to his evidence or the reasonablenessof the Commission Decision. Section 194(1) does not permit appellate review on that basis: see Silzer at para 62 and Van de Sype atpara 133. Moreover, and to conclude, there was no Murphy-type error. E. Remaining grounds of appeal [75] While Mr. Zunti raised a host of other arguments in his notice of appeal, in the main they relate to his allegation that Dr.

Mireauwas in a conflict of interest because he had a financial incentive to provide favourable evidence for SGI and that SGI’s website materialsinduced him to choose no fault insurance coverage over the tort-based option. All of this, he says, somehow revealed a bias or lack ofimpartiality on the part of the Commission. [76] These arguments have already been addressed within the context of Mr. Zunti’s fresh evidence application and will not berepeated. Suffice to say, I see no merit to those allegations. [77] Mr.

Zunti also argues that the hearing process was unfair because he was denied an adjournment to another day to conclude hiscross-examination of Dr. Mireau and prepare final argument. While the Commission did not agree to that length of adjournment, it didgive Mr. Zunti extra time to collect his thoughts and consider whether he had further questions for Dr. Mireau. Mr. Zunti appeared to becontent with that approach. All things considered, I see no breach of procedural fairness in the manner in which the Committee managedthe hearing process. [78] Finally, Mr.

Zunti urges this Court to exercise its jurisdiction reposed in s. 11 of The Court of Appeal Act, 2000, SS 2000, c C-42.1, to grant prerogative relief and to quash the Commission Decision. [79]

Section 11 of The Court of Appeal Act, 2000, does, of course, provide that “[t]he court may, in its discretion, exercise originaljurisdiction to grant relief in the nature of a prerogative writ”. However, the Court exercises that jurisdiction only in extraordinarycircumstances, examples of which are as follows: (

a) Maurice v Priel (1987), (SK CA), 46 DLR (4th) 416 (CA), aff’d (SCC), [1989] 1 SCR1023: A Law Society disciplinary hearing was convened to determine if, before being appointed, a Queen’s Bench judge had engaged inconduct unbecoming a lawyer. An application was made directly to this Court to prohibit the hearing. While the application should havebeen made in the Court of Queen’s Bench before being made to this Court, it was deemed a special case – “It is ‘in the interests of justice’within the meaning of that phrase … that this Court should hear the application in the first instance.

The application falls into the categoryof a ‘special case’ as contemplated by Geller [ (SK CA), 48 Sask R 239 (CA)]” (at 31); (

b) Royal Canadian Mounted Police v Saskatchewan (Commission of Inquiry) (1992), (SK CA), 75 CCC (3d)419 (CA), leave to appeal to SCC refused, [1993] 1 WWR lix: A commission of inquiry determined that the public interest trumpedprotecting the name of a police informant. Although an application to overturn that ruling would normally be made to the Court ofQueen’s Bench, as this Court noted, since “every member of the Queen’s Bench Court has status before the Commission, we decided toexercise our original jurisdiction” rather “than issuing a direction that the application be heard in the first instance in Queen’s BenchChambers” (at para 14); (

c) Pearlman v University of Saskatchewan (College of Medicine), 2006 SKCA 105, 273 DLR (4th) 414: The Visitor, an officerof the University, exercised his authority to grant relief to a student.

An application to overturn the Visitor’s decision was brought directlyto this Court because the Chief Justice of the Court of Queen’s Bench once held the position of the Visitor: [28] … It requested that this Court exercise its original jurisdiction in that regard because Laing J. (now Laing C.J.Q.B.) had acted asVisitor and, accordingly, it would therefore be inappropriate to ask a Queen’s Bench judge to review the decision in issue. We acceptedthe University’s submission and agreed to hear the application. and; (

d) Hartwig v Saskatchewan (Justice), 2007 SKCA 41: Among other matters, an application was made to this Court to quashportions of an inquiry report. In agreeing to accept the application, it was determined that “the Court will exercise that jurisdiction wherethe interests of justice require” (at para 7). Also see Richardson v Richardson, 2022 SKCA 133, leave to appeal to SCC refused, . [80] Mr. Zunti’s appeal does not fit within the sort of exceptional circumstances where s. 11 relief has been historically allowed.Even so, I am not inclined to grant the relief sought for the simple reason that Mr. Zunti has a right of appeal under s. 194 of the AAIA in

which the substance of his arguments have been dealt with on their merits. While the result on appeal may not be to Mr. Zunti’s liking, it would be anomalous to allow him a second chance at overturning the Commission Decision through another appellate door. [ 81 ] Mr. Zunti’s application for prerogative relief is therefore dismissed. VI. Conclusion [ 82 ] The appeal is dismissed. “Schwann J.A.” Schwann J.A. I concur. “McCreary J.A.” McCreary J.A. I concur. “Drennan J.A.” Drennan J.A.