Saskatchewan Government Insurance v. Speir, 2009 SKCA 73

• Judge: Vancise, Jackson and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 27, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKCA 73;(2009), 331 Sask.R. 250 (CA)

SGI v. Speir (2009), 331 Sask.R. 250 (CA);

    460 W.A.C. 250

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.059

Saskatchewan Government Insurance (appellant/respondent by cross-appeal) v. Susan Speir (respondent/appellant by cross-appeal)

(No. 1415; 2009 SKCA 73)

Indexed As: Saskatchewan Government Insurance v. Speir

Saskatchewan Court of Appeal

Vancise, Jackson and Wilkinson, JJ.A.

May 27, 2009.

Summary:

Speir was rendered a paraplegic in a motor vehicle accident. She sought to have Saskatchewan Government Insurance (SGI) pay the cost of an indoor swimming pool as a "rehabilitation measure" under s. 112 of the Automobile Accident Insurance Act. SGI denied the expense. Speir appealed. The Automobile Injury Appeal Commission ordered SGI to contribute $50,000 towards the cost of a pool. The Commission also ordered SGI to pay Speir's legal fees (capped at $2,500) and other expenditures incurred, but denied reimbursement for the expense of the report and testimony of a subpoenaed medical witness. SGI appealed the finding that an indoor swimming pool was a reimbursable "rehabilitation measure" under the Act. Speir cross-appealed the decision to deny reimbursement respecting the medical witness and to limit her costs to $2,500.

The Saskatchewan Court of Appeal dismissed SGI's appeal on the ground that it was moot. The court allowed Speir's cross-appeal.

Insurance - Topic 5067

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursement for services and supplies essential for treatment or rehabilitation - [See Practice - Topic 8858 ].

Insurance - Topic 5290

Automobile insurance - Compulsory government schemes - Insurance corporations, commissions and tribunals - Appeals to - Costs and disbursements - Saskatchewan Government Insurance (SGI) rejected a claimant's request for the cost of an indoor pool as a "rehabilitation measure" under s. 112 of the Automobile Accident Insurance Act - The Automobile Injury Appeal Commission allowed the claimant's appeal under s. 191(1) of the Act - The Commission limited costs payable by SGI to the claimant to $2,500 - Although s. 193(11) of the Act gave the Commission the power to award costs, the Commission held that it limited a claimant's reimbursement for reasonable expenses to $2,500 (Personal Injury Benefits Regulations, s. 96) - The Saskatchewan Court of Appeal held that s. 96 did not limit "costs" to $2,500 - Section 96 used the term "expenses", which was not a term of art like "costs" - "Cost" and "expenses" were not interchangeable in a legal context - The intention of s. 96 was to allow the Commission to award a self-represented claimant his "reasonable expenses" (i.e, expenses and disbursements) up to a maximum of $2,500 - Section 96 did not address the situation of a claimant represented by counsel - See paragraphs 13 to 36.

Insurance - Topic 5290

Automobile insurance - Compulsory government schemes - Insurance corporations, commissions and tribunals - Appeals to - Costs and disbursements - Saskatchewan Government Insurance (SGI) rejected a paraplegic claimant's request for the cost of an indoor pool as a "rehabilitation measure" under s. 112 of the Automobile Accident Insurance Act - The Automobile Injury Appeal Commission allowed the claimant's appeal under s. 191(1) of the Act - The claimant had retained a "practitioner" to file a report and testify at the appeal as to the therapeutic value of the pool for paraplegics - The "practitioner" did not examine the claimant or file a report on her physical condition - The Commission held that the claimant was not entitled to reimbursement for the $1,500 expense of the "practitioner", as s. 76 of the Personal Injury Benefits Regulation provided for reimbursement only where the practitioner examined the claimant - The Saskatchewan Court of Appeal allowed the claimant's appeal - Section 169 of the Act obligated SGI to pay for the reports of practitioners engaged by successful claimants - Section 76 of the Regulations in turn provided a tariff for the payment of the services of "practitioners" who "examine" a claimant - Where, as here, the report filed was not of the type contemplated by s. 169, neither s. 169 of the Act, nor s. 76 of the Regulations applied - The claimant was accordingly entitled to claim reimbursement for the "practitioner's" report and testimony as part of her Bill of Costs - If SGI was dissatisfied with the Bill of Costs, it could have them taxed under s. 193(12) of the Act, where it was for the Registrar to determine whether the $1,500 claimed was a "necessary disbursement properly vouched for" - See paragraphs 37 to 45.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - A paraplegic asked Saskatchewan Government Insurance (SGI) to pay the cost of an indoor swimming pool as a "rehabilitation measure" under s. 112 of the Automobile Accident Insurance Act - SGI refused - The Automobile Injury Appeal Commission ordered SGI to contribute $50,000 towards the cost of the pool - SGI appealed - Prior to the appeal being heard, SGI paid the $50,000 - SGI's position was that if it was successful on appeal, it would consider the $50,000 an ex gratia payment which it would not seek to recover - Notwithstanding the appeal was now moot, SGI asked the court to exercise its discretion to hear the appeal "because of the difficulty in finding a proper case to raise [the issues on appeal] without putting a claimant to the potential hardship associated with delayed payment and the cost of obtaining counsel" - The Saskatchewan Court of Appeal declined to exercise its discretion to hear the moot appeal - The court noted that there was no one appearing to argue the position contrary to SGI - The issues raised on appeal would require the court to reconsider its past jurisprudence in light of Dunsmuir (SCC) and apply the law to an intra-agency review - The implications extended beyond the Commission's decision in this case - It was not appropriate to hear the appeal absent effective representation on both sides of the issues - See paragraphs 9 to 12.

Cases Noticed:

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. 7].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

St. Marys Paper Inc. (Bankrupt), Re, [1996] 1 S.C.R. 3; 206 N.R. 81; 96 O.A.C. 321, refd to. [para. 11].

H.L. v. Saskatchewan Government Insurance, 2005 SKAIA 7, refd to. [para. 18].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 20].

Weston Bakeries Ltd. v. Baker Perkins Inc. (1960), 23 D.L.R.(2d) 122 (Man. C.A.), affd. [1961] S.C.R. vii; 35 W.W.R. 576, refd to. [para. 25].

Dusome v. Maxwell (1987), 62 O.R.(2d) 785 (Ont. Dist. Ct.), refd to. [para. 26].

Agricultural Credit Corp. of Saskatchewan v. Crush, [1991] 5 W.W.R. 221; 96 Sask.R. 248 (Q.B.), refd to. [para. 33].

Statutes Noticed:

Automobile Accident Insurance Act, R.S.S. 1978, c. A-35, sect. 169 [para. 39]; sect. 193(11) [para. 19]; sect. 193(12) [para. 22].

Automobile Accident Insurance Act Regulations (Sask.), Personal Injury Benefits Regulations, Reg. 3, sect. 96(1), sect. 96(2) [para. 19].

Personal Injury Benefits Regulations - see Automobile Accident Insurance Act Regulations (Sask.).

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.) (2008 Looseleaf Update), pp. 2-49 [para. 26]; 2-139, 2-140 [para. 33].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 214 to 218 [para. 28]; 326, 327 [para. 43].

Thornton, G.C., Legislative Drafting (3rd Ed. 1987), p. 359 [para. 20].

Counsel:

Robert Kennedy, Q.C., and Beth Bilson, Q.C., for the appellant (on appeal);

No one appearing for the respondent (on appeal);

Kenneth W. Noble, for the appellant (on cross-appeal);

Robert Kennedy, Q.C., for the respondent (on cross-appeal).

This appeal and cross-appeal were heard on November 14, 2008, and May 27, 2009, before Vancise, Jackson and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court was delivered orally on May 27, 2009, by Jackson, J.A., with written reasons filed on June 29, 2009.