Sabean v. Portage LaPrairie Mutual, 2015 NSCA 53

Judge:Scanlan, Hamilton and Beveridge, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:February 04, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 53;(2015), 359 N.S.R.(2d) 392 (CA)
 
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Sabean v. Portage LaPrairie Mutual (2015), 359 N.S.R.(2d) 392 (CA);

    1133 A.P.R. 392

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.007

Portage LaPrairie Mutual Insurance Company (appellant) v. Andrew Sabean and Cathy Hallett (respondents)

(CA 428986; 2015 NSCA 53)

Indexed As: Sabean et al. v. Portage LaPrairie Mutual Insurance Co.

Nova Scotia Court of Appeal

Scanlan, Hamilton and Beveridge, JJ.A.

June 4, 2015.

Summary:

Sabean was injured in a motor vehicle accident. The driver of the other vehicle was underinsured. Sabean claimed under the excess insurance provisions of his policy with the defendant insurance company. A jury awarded Sabean damages. The parties agreed that Canada Pension Plan (CPP) disability benefits paid up to the date of trial were deductible from the award, but disagreed as to whether future CPP disability benefits should be deducted.

The Nova Scotia Supreme Court, in a decision reported at (2013), 338 N.S.R.(2d) 14; 1071 A.P.R. 14, held that future CPP disability benefits were not deductible from the award of damages. The insurer appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Damages - Topic 1746

Deductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits (incl. drugs, disability, etc.) - [See Insurance - Topic 4110.1 ].

Damages - Topic 1749

Deductions for payments or assistance by third parties - Contractually - Insurance - Future benefits - [See Insurance - Topic 4110.1 ].

Damages - Topic 1761

Deductions for payments or assistance by third parties - By statute or government - Canada Pension Plan (incl. disability benefits) - [See Insurance - Topic 4110.1 ].

Insurance - Topic 4110.1

Automobile insurance - Uninsured or underinsured motorist coverage - Deductions - Sabean claimed under the excess insurance provisions (SEF 44) of his policy with the defendant insurer after being injured in a motor vehicle accident where the other driver was underinsured - A jury awarded Sabean damages - The parties disagreed as to whether future Canada Pension Plan (CPP) disability benefits were deductible from the award - Section 4(b)(vii) of the SEF 44 stated that "The amount payable ... is excess to any amounts the eligible claimant is entitled to recover ... from ... [a]ny policy of insurance providing disability benefits ..." - The trial judge held that the CPP was not a "policy of insurance" within the meaning of s. 4(b)(vii) - Accordingly, the amount of future CPP disability benefits that Sabean was entitled to were not deductible from the award of damages - The Nova Scotia Court of Appeal allowed the insurer's appeal - There was no ambiguity in s. 4(b)(vii) considering (1) the established law before the SEF 44 was made available was that pensions payable under the CPP were "of the same nature as contracts of insurance"; (2) the clear wording to the effect that the SEF 44 was excess insurance and no one was entitled to double recovery; and (3) the unimportance of the word "policy" as opposed to "contract" in the context of s. 4(b)(vii) - Future CPP disability benefits were deductible from amounts payable by SEF 44 insurers - See paragraphs 15 to 30.

Cases Noticed:

Economical Mutual Insurance Co. v. Lapalme (2010), 366 N.B.R.(2d) 199; 942 A.P.R. 199; 2010 NBCA 87, not folld. [para. 7].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 2014 SCC 53, refd to. [para. 13].

Ryan v. Sun Life Assurance Co. of Canada (2005), 230 N.S.R.(2d) 132; 729 A.P.R. 132; 2005 NSCA 12, refd to. [para. 13].

Kolstee v. Metlin (2003), 217 N.S.R.(2d) 162; 683 A.P.R. 162; 2003 NSCA 95, refd to. [para. 14].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, refd to. [para. 20].

Canadian Pacific Railway v. Gill, [1973] S.C.R. 654, folld. [para. 22].

Gignac v. Neufeld et al. (1999), 119 O.A.C. 43 (C.A.), refd to. [para. 27].

Authors and Works Noticed:

Morse, J., SEF No. 44 Underinsured Motorist Coverage: The Aftermath of SEF 42 and the Borland, Wigle and White Cases (1986-87), 7 Advocates' Q. 185, p. 187 [para. 25].

Newcombe, John, The Standard Automobile Policy, Annotated (1986), pp. 188, 220 [para. 26].

Counsel:

Scott R. Campbell and Jennifer Taylor, for the appellant;

Derrick J. Kimball, Sharon L. Cochrane and David Faour, Articling Clerk, for the respondent, Andrew Sabean.

This appeal was heard in Halifax, N.S., on February 4, 2015, before Scanlan, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Scanlan, J.A., delivered the following reasons for judgment for the court on June 4, 2015.

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