Germain v. Saskatchewan Government Insurance, 2015 SKCA 84

• Judge: Jackson, Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 18, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 84;(2015), 465 Sask.R. 48 (CA)

Germain v. SGI (2015), 465 Sask.R. 48 (CA);

    649 W.A.C. 48

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.022

Elaine Germain (appellant) v. Saskatchewan Government Insurance (respondent)

(CACV2437; 2015 SKCA 84)

Indexed As: Germain v. Saskatchewan Government Insurance

Saskatchewan Court of Appeal

Jackson, Whitmore and Ryan-Froslie, JJ.A.

July 29, 2015.

Summary:

In 2001, Germain was injured in a motor vehicle accident. In January 2004, Saskatchewan Government Insurance (SGI) denied Germain's claim for income replacement benefits on the basis that medical evidence did not substantiate the claim. In August 2004, SGI indicated that Germain had not suffered an economic loss due to the accident. In November 2004, SGI denied Germain's claim for reimbursement of the cost of her anti-depressant (Effexor) and reimbursement for yard work (raking and shovelling). In June 2005, SGI terminated Germain's benefits. At that time, the only benefit she was receiving was reimbursement for her prescription for Flexeril. Germain's appeal to the Automobile Injury Appeal Commission was dismissed. She appealed.

The Saskatchewan Court of Appeal allowed the appeal, setting aside the Commission's decision to uphold SGI's refusal and termination of benefits. A new hearing was ordered.

Editor's Note: For the decisions related to this appellant's application for an injunction and declaratory relief, see [2007] Sask.R. Uned. 49; (2008), 326 Sask.R. 312; and (2009), 333 Sask.R. 116.

Administrative Law - Topic 624

The hearing and decision - Evidence and proof - Hearsay evidence - [See first Insurance - Topic 5068 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed, asserting, inter alia, that the Commission was biased as a result of her application to the Court of Queen's Bench for an injunction and declaratory relief to prevent publication of the Commission's decision relating to her appeals - She asserted that a reasonable apprehension of bias was evident from the "gratuitous and unkind comments" in the Commission's decision - The Saskatchewan Court of Appeal held that a reasonable apprehension of bias was not made out - Germain's application to the court related to a policy of the Commission - The Commission revised its policy to address Germain's concerns before the court rendered its decision on her application - The transcript of the hearing before the Commission showed that the panel was always courteous and fair to Germain - While some of the panel's comments in its decision might be considered unkind, they did not lead to a reasonable apprehension of bias - Objectively speaking, they did not demonstrate a lack of impartiality - See paragraphs 31 to 34.

Evidence - Topic 1530

Hearsay rule - Hearsay rule exceptions and exclusions - General - Administrative tribunals - [See first Insurance - Topic 5068 ].

Insurance - Topic 5066

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursements for medical expenses - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed - The Saskatchewan Court of Appeal allowed the appeal - The Commission had erred in law in upholding SGI's decision to terminate reimbursement for the cost of Flexeril - Because SGI was paying for the Flexeril, it bore the onus of establishing that termination of the benefit was justified under s. 185 of the Automobile Accident Insurance Act - Section 185 did not authorize the termination of benefits because SGI's medical consultants questioned whether a drug prescribed by a claimant's treating physician should be used - Further, there was no evidence that Germain's use of Flexeril, as prescribed, was inappropriate - See paragraphs 75 to 80.

Insurance - Topic 5066

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursements for medical expenses - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits, including the cost of her anti-depressant (Effexor), although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed - The Saskatchewan Court of Appeal allowed the appeal - In concluding that Germain was not depressed due to chronic pain from the accident, the Commission disregarded the medical evidence before it - The Commission's findings were made on the basis of irrelevant evidence or in disregard of the relevant evidence and had to be set aside - See paragraphs 70 to 74.

Insurance - Topic 5067.6

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Housekeeping and home maintenance - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits, including reimbursement for yard work (raking and shovelling), although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed - The Saskatchewan Court of Appeal allowed the appeal - The Commission erred in finding that because Germain could mow the lawn, she could also shovel snow and rake leaves - Engaging in one type of activity did not mean that a claimant could engage in all types of physical activity - See paragraphs 65 to 69.

Insurance - Topic 5068

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Income replacement (incl. temporary disability benefits) - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed, asserting, inter alia, that the Commission had erred by accepting and relying on hearsay evidence that consisted of an SGI adjuster's notes of a conversation that the adjuster had with one of Germain's physicians - The Saskatchewan Court of Appeal allowed the appeal - Hearsay was admissible in hearings before the Commission as long as it was relevant to an issue under consideration - The Commission had relied on the evidence to find that Germain had not followed her physician's recommendation for treatment and, on that basis, upheld the Commission's decision to refuse income replacement benefits - However, the issue of whether Germain had refused to follow a recommended treatment plan was not before the Commission - There was no evidence that SGI had ever recommended a treatment plan - The Commission erred in relying on the note for the purpose it had - See paragraphs 37 to 41.

Insurance - Topic 5068

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Income replacement (incl. temporary disability benefits) - In 2001, Germain was injured in a motor vehicle accident - In January 2004, Saskatchewan Government Insurance (SGI) denied Germain's claim for income replacement benefits on the basis that medical evidence did not substantiate the claim - In August 2004, SGI indicated that Germain had not suffered an economic loss due to the accident - In June 2005, SGI terminated Germain's benefits - At that time, the only benefit she was receiving was reimbursement for her prescription for Flexeril - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed, asserting, inter alia, that the Commission had erred by misapprehending or disregarding evidence or relying on inappropriate or irrelevant evidence - The Saskatchewan Court of Appeal allowed the appeal, setting aside the Commission's decision to uphold SGI's refusal of income replacement benefits - The Commission correctly determined that Germain had to establish entitlement to income replacement benefits and that, to do so, she had to establish that she was unable to continue her full-time employment - However, the Commission's reasons for finding that Germain had not met this burden reflected error - The Commission's determination that Germain's injury was "minor" was not supported by the evidence or findings of credibility - The Commission had misinterpreted evidence regarding Germain's degree of pain - It had failed to consider the whole of the evidence and had disregarded relevant evidence - As of December 2002, SGI's own evidence supported a finding that Germain was not working full-time due to her injuries - Despite that evidence, the Commission failed to address whether Germain would have been entitled to income replacement benefits for some period of time after the accident - This was an error - See paragraphs 42 to 64.

Insurance - Topic 5075

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Onus of proof - [See first Insurance - Topic 5066 and second Insurance - Topic 5068 ].

Insurance - Topic 5078

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Termination of - [See first Insurance - Topic 5066 ].

Insurance - Topic 5080

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Appeals or judicial review - [See Insurance - Topic 5283.1 ].

Insurance - Topic 5283.1

Automobile insurance - Compulsory government schemes - Insurance corporations, commissions and tribunals - Insurer's decisions - Appeals - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed - The Saskatchewan Court of Appeal allowed the appeal, ordering a new hearing - While the court had the power to determine the issues raised by Germain's appeal, it was unable to do so on the record before it - Those issues involved the assessment of credibility - Moreover, given the time that had passed since SGI had made its decisions, further evidence would be required - See paragraph 81.

Practice - Topic 7050

Costs - Party and party costs - Entitlement - Successful party not represented by counsel - In 2001, Germain was injured in a motor vehicle accident - Saskatchewan Government Insurance (SGI) denied Germain's claims for income replacement and other benefits although she did receive reimbursement for her prescription for Flexeril - In June 2005, SGI terminated Germain's benefits - Germain's appeal to the Automobile Injury Appeal Commission was dismissed - Germain appealed - The Saskatchewan Court of Appeal allowed the appeal and awarded Germain, who was self-represented, costs of the appeal fixed at $3,500 - Self-represented litigants were entitled to costs in appropriate cases if they were successful in their appeals - The amount awarded was less than the taxable costs ordinarily paid because SGI had to file two supplemental appeal books to ensure that all the relevant material was before the court - See paragraphs 82 and 83.

Cases Noticed:

Saskatchewan Government Insurance v. Speir (2009), 331 Sask.R. 250; 460 W.A.C. 250; 2009 SKCA 73, refd to. [para. 30].

Murphy v. Saskatchewan Government Insurance, [2008] 7 W.W.R. 401; 310 Sask.R. 149; 423 W.A.C. 149; 2008 SKCA 57, refd to. [para. 30].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 32].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 32].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 32].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2015), 471 N.R. 206; 370 B.C.A.C. 1; 635 W.A.C. 1; 2015 SCC 25, refd to. [para. 32].

Agrium Vanscoy Potash Operations v. United Steel Workers, Local 7552 et al., [2014] 8 W.W.R. 629; 442 Sask.R. 42; 616 W.A.C. 42; 2014 SKCA 79, refd to. [para. 32].

Aalbers v. Aalbers (2013), 417 Sask.R. 69; 580 W.A.C. 69; 2013 SKCA 64, refd to. [para. 32].

Hope v. Pylypow et al. (2015), 457 Sask.R. 55; 632 W.A.C. 55; 2015 SKCA 26, refd to. [para. 83].

Counsel:

Elaine Germain, on her own behalf;

Steven Haichert, for the respondent.

This appeal was heard on March 18, 2015, by Jackson, Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On July 29, 2015, Ryan-Froslie, J.A., delivered the following judgment for the court.