PRACTICE AND PROCEDURE UNDER PART VIII OF THE AUTOMOBILE ACCIDENT INSURANCE ACT

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1 PRACTICE AND PROCEDURE UNDER PART VIII OF THE AUTOMOBILE ACCIDENT INSURANCE ACT Our thanks to Cyndi Ruff-MacGregor, Legal Assistant with SGI's Legal Department, for her help in the preparation of this paper. These materials were prepared by Jennifer Bailey of Saskatchewan Government Insurance, Saskatoon, Sask. and Tim Macleod of Saskatchewan Government Insurance, Regina, Sask. for the Saskatchewan \,~j legal Education Society Inc. seminar, Insurance law Update, March 1999.

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3 TABLE OF CONTENTS Description ofbenefits Claims for Economic Losses Internal Review Appeals to the Court of Queents Bench Costs ~ Case Law Re: Hearings & Appeals Other Case Law Actions Challenging Inclusion into Part VIII 7 Actions Challenging Exclusion from Part VIII Actions Challenging Calculation ofbenefits Changes to the Legislation

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5 -1- Practice and Procedure for the Personal Injury Protection Program The Personal Injury Protection Program was implemented on January 1, The provisions ofthis 'no fault' program are found in Part VIII ofthe Automobile Accident Insurance Act. As a result ofthe implementation ofthis injury benefits program, the procedure and thresholds for civil litigation for automobile related bodily injury claims in the court system has changed significantly. Description ofbenefits Under Part VITI ofthe Automobile Accident Insurance Act, an individual is entitled to personal injury benefits, regardless offault in the following amounts: Income Replacement Benefit to a maximum gross yearly employment income of$55,875 [So 138(1)] or a Replacement Worker to a maximum of$586/week [So 141(4)]; Loss ofstudies Benefits for Students depending on age and loss [so 122 and s. 124] Care Giver Benefit to care for others to a maximum of$426 per week [s. 161(3)]; Rehabilitation Benefitsto a maximum of$532,767; [so 110(3)] Death Benefits - the greater ofa minimum death benefit of$47,949 or a death benefit based on an individual's Income Replacement Benefit calculation [so 146]; Funeral expense benefit of$5,328 [so 150]; Permanent Impairment Benefits limited to $133,192 [so 157(2)] (Based on Appendix B) The list ofbenefits described above is not exhaustive ofthe benefits available, but merely an overview ofthe main categories.

6 -2 - Claims for Economic Loss A tort action is preserved by Part vm ofthe Automobile Accident Insurance Act in claims for economic loss outlined in S The tort action is preserved in the following cases: 1) Accident victims whose actual income losses are in excess ofthe limits of Income Replacement Benefits provided by the legislation; 2) Where the accident victim dies as a result ofthe accident, any actual income loss suffered by the victim's defendants in excess ofthe death benefits (50% ofthe Income Replacement Benefit) provided for in s. 146; 3) Where actual and reasonable losses in respect ofpersonal care expenses or care ofothers without remuneration exceeds the benefits payable under Division 7 ofpart VIII; It must be remembered that entitlement to claim for these excess economic losses is subject to rules ofnegligence, set off, apportionment arid liability. As well, these claimable economic losses are to be net ofamounts received from any government agency, or public or private insurance scheme except life insurance [s.l03]. In addition, Prejudgment Interest is not claimable on the economic losses. In the event a tort action for economic loss exists, a Statement ofclaim should be issued to preserve the limitation period. The limitation period continues to be governed by s. 88 ofthe Highway Traffic Act. The liability portion ofone's license plate insurance will respond, however the limits ofliability remain unchanged at $200,000. The limit of liability is entitled to be reduced by all Part II, III and Part VIII benefits paid out [s. 42(2.2)]. In the event the injuries are catastrophic in nature, the presence ofliability Extension and the Family Security Coverage should be investigated.

7 -3 - Although SOl has received Statements ofclaim regarding this issue, to date no claims have proceeded to Judgment. In some instances the Extension Liability Insurance or the Family SecuritY. Coverage has automatically paid the sums that can be quantified without requiring a Judgment. In other instances, the claims are still in their infancy and at this time can not yet be quantified. Internal Review A Saskatchewan resident who is injured as a result ofa motor vehicle accident in the U.S.A. or Canada is entitled to injury benefits. During the course ofthe injury claim the claimant will be advised ofbenefits and terminations ofbenefits in writing [so 192(1)]. If a claimant disputes a decision ofsol, they are entitled to an internal review ofthis decision [so 194]. The claimant is required to complete and forward to their adjuster an Application for Review. At this stage the claimant can choose one oftwo options for the review. The first option is a hearing completed in person or by telephone with the claimant and the Hearing Officer. The second option is to have the Hearing Officer review the file to determine whether any facts or provisions have been overlooked. The Review process is managed at SOl's Head Office Claims department in Regina. A written decision ofthe review will be provided to the claimant once the review has concluded. Appeals to the Court of Queen's Bench Ifthe claimant disagrees with the internal decision ofsol, they are then entitled to elect to mediate the file [s. 196]. Mediation isnot a mandatory step, andthis step canbe passed to go to the Court ofqueen's Bench. However, ifmediation is selected, the claimant must send notification in writing within 30 days ofthe review hearing requesting mediation. A $35.00 fee must also be enclosed. A list ofmediators will be sent to the claimant who will be instructed to choose three mediators from the list and

8 -4 - advise SGI oftheir choices. SGI will then provide this list to Mediation Services and a mediator will contact each party for appropriate dates. Ifthe claimant maintains that they are entitled to different or more injury bene:qts than allowed by the review officer or agreed to by SGI at mediation, the legislation provides for an appeal ofsgl's decision to the Court ofqueen's Bench [so 197]. A written decision resulting from the internal review process must first be rendered to have the decision appealed to the Court ofqueen's Bench. The insurer is compelled to provide a written decision [so 192]. To proceed to this step, the claimant must serve on SGI a Notice ofmotion for a Chambers date in the appropriate jurisdiction [Regulation 96]. Service will be accepted by any member ofthe Legal Department in Saskatoon or Regina, who will then obtain theme from the adjuster. Service is otherwise dealt with in s. 103 ofthe Regulations. The Appeal to Queen's Bench is made at the judicial centre closest to where.the claimant residesunless otherwise agreed [so 99 ofregulations]. Where the Regulations are silent as to procedure at the Queen's Bench Appeal the Queen's Bench Rules ofcourt apply [so 100 ofregulations]. Therefore the rules concerning exchange ofstatements as to Documents, holding ofdiscoveries etc. apply. Ifthe facts are not in dispute the parties can proceed to have the matter determined in chambers or at a hearing by Agreed Statement offacts; Briefs oflaw are exchanged. If the facts are in dispute and Discoveries are necessary a Consent Order can be entered into at the frrstchambers appearance. A draft copy ofsuch an Order is attached to this paper. Every Notice ofmotion must contain the following information as prescribed in Regulation 98: (a) the findings offact made by the insurer; (b) the facts that are admitted by the claimant; (c) The facts that are denied by the claimant;

9 -5 - (d) (e) (f) (g) any other material fact; the grounds to be argued, including a reference to any statutory provisions relied on; a list ofthe documentary evidence to be used at the hearing ofthe motion; and the relief sought. Section 198 provides that on Appeal the Court shall adopt the insurer's findings offacts unless the claimant puts them in issue. On an appeal, the Court ofqueen's Bench has the right to set aside, confirm or vary the decision ofsgi [s. 198]. In the event the Court sets aside or varies SGI's decision, the Court has the ability to award interest from the date the benefits would have been paid until the date ofthe Court's decision. This is in contrast to the rules with respect to Pre Judgment Interest in s. 103 ofthe Act. In the event ofa hearing it is important to delineate for the Court the issues requiring the Court's determination. Given the lack ofpleadings, special attention should be given to this issue prior to setting the matter for hearing. The complexity and range ofthe issues will, ofcourse, have a direct impact upon the length oftime to be set aside for the hearing. When analyzing what issues the Court will be asked to determine it is useful to bear in mind that the A.A.LA. preserves some matters for internal administrative determination. For instance, s. 112 directs the insurer to calculate the income replacement benefit in accordance with certain criteria applicable to employment situations. In the case ofself employed individuals their income is determined in accordance with the greater oftheir own income from full time selfemployment and income ofthose ofthe same class ofself employed earners as prescribed by the regulations. It will be necessary, then, for SGI to have completed its internal determination ofthe IRB before the Court will have the opportunity to review that determination.

10 -6 - Therefore, in cases where causation issues are combined with other internal issues, as in the case ofan individual whom SGI detennines is disentitled to an IRB because his or her condition is not caused by auto accident injury but by some unrelated cause, the Court will only be able to deal with the causation issue upon appeal, no internal detennination ofthe IRB having been made to the date ofthe Appeal. Ifthe Appeal is successful and the condition is found to be caused by the auto accident, the matter will be referred back to SGI to make its internal detennination as to the appropriate IRB. IfSGI then detennines that the applicable IRB is calculated in accordance with the claimants ownincome, finding that other individuals ofthe same class earned less than the claimant, the claimant may bring a second Appeal on the basis that the insurer has not properly detennined the appropriate comparable class ofself employed individual with the result that the IRB is less than it could be. In the event a claimant is successful at the Court ofqueen's Bench and Court ofappeal levels, the claimant is entitled to their costs on a solicitor and client basis from the time the Notice ofmotion was filed and forwarded. Regulation 101 limits the cost ofthe preparation ofthe Notice ofmotion to $ The balance ofthe costs are not so limited. Case Law concerning Hearings and Appeals Collis v. 8GI, [ 1998] 8.J. No. 123 The insured has the initial onus ofestablishing he or she is primafacie entitled to benefits. Thereafter the onus shifts to the insurer to show that benefits are not or are no longer payable. The burden on the insurer is not to exceed the weight ofevidence presented by the claimant but to equal it. Evidence that the insurer at one time accepted

11 -7 - the claim may weigh the balance in favour ofthe insured. (Malkin v. Crown Life Insurance Co (1989), 38 C.C.L.I. 117) Belchamber v. SGI, [1997] S.J. No. 754 Although s. 194(3)(b) empowers Queen's Bench to make any decision that the insurer is authorized to make under Part VIII, that power should only be exercised in respect of rehabilitation issues where it is established that a decision ofsol is erroneous or unreasonable. Other Case Law To date the most common application presented to the Court involves sections 101 and 102, which involve entitlement to or exclusion from the benefits under the Act. The following is a sample ofthe applications to the Court to date: ACTIONS CHALLENGING INCLUSION INTO PART VIII OF THE ACT. Daniels-Beaudry et al. v. Larson et al. (1997), 159 Sask. R. 197 (Q.B.); (1998),168 Sask. R. 22 (C.A.) Jeremy Lewis Daniels-Beaudry (hereinafter referred to as Daniels-Beaudry) was a backseat passenger in a vehicle driven by Brenda Larson on or about April 11, Damon Blackwell rear-ended the vehicle being driven by Brenda Larson, and as a result. ofthe collision Daniels-Beaudry sustained fatal injuries. At the time ofthe accident Daniels-Beaudry was in the care ofthe Government ofsaskatchewan's Social Services. The plaintiffs claimed that the child had been improperly apprehended by Social Services and wished to entertain a claim against this department. However, the Honourable Justice Kyle found that the injuries sustained by Daniels-Beaudry were directly as a result ofa motor vehicle accident, and ordered that the statement ofclaim be struck out and the action not allowed to proceed. ) The matter continued on to the Court ofappeal on March 12, 1998 before the Honourable Mr. Justices Cameron, Gerwing and Lane. The Court ofappeal upheld the Court ofqueen's Bench decision, confirming that the action clearly falls within the scope ofsection 102 ofthe Act, and that striking out the statement ofclaim and staying the action were not made in error.

12 -8 - Fink v. Ardelan. (1997), 162 Sask. R. 197 (Q.B.); [1999] S.J. No. 13, January 14, 1999 (C.A.) This matter was brought pursuant to Rule 188 ofthe Queen's Bench Rules. Richard Fink was the operator ofa 1985 Plymouth motor vehicle travelling north on Elphinstone at. Saskatchewan Drive. The Plaintiffwas driving behind a large Caterpillar Grader machine owned by the defendant Morsky Construction. At a point just north of Saskatchewan Drive, the grader stopped and unexpectedly started backing up. The Plaintiffattempted to put his vehicle in reverse to get away from the grader. Unfortunately he put his automatic transmission into the "Park" position by mistake. The grader then struck the vehicle causing minor injury to the operator. Under the Act, the grader is a "special mobile machine" and is not required to be registered under the VAA. The Plaintiffargued that because his vehicle was "not in motion" at the time ofthe accident, and since the vehicle striking his vehicle was not bound by the provisions ofthe AAIA, that he is not bound by the no-fault provisions for his injuries. The Honourable Kyle J. adopted a very literal interpretation ofthe act and decided in favour ofthe plaintiff, stating that his vehicle was in fact, not in motion, at the time ofthe accident and that the Plaintiffwas not bound by Part VIII for his bodily injuries. This decision was appealed to the Court ofappeal on January 14, The Court of Appeal overturned the decision ofthe Court ofqueen's Bench and concluded that when a vehicle is being used as a means ofconveyance, which is its primary purpose, then for all intents and purposes it is "in motion" notwithstanding that it may be momentarily stopped at any given moment. The court found that the strict application applied by the Court of Queen's Bench was too literal ofa distinction to be drawn, and that the Plaintiffwas subject to Part VIII for the injuries sustained in the accident. Schmidt v. Arcand, (24 December 1998) J.C. Regina, Q.B. No of1996 (Sask. Q.B.) The plaintiffwas injured in a motor vehicle accident after being struck by the defendant. The plaintiffalleged that the defendant Arcand had consumed alcohol in a beverage room by the defendant Citynski Hotels and that this overservice constituted negligence. The defendant denied that there was a cause ofaction, and that the application is barred by section 102 oftheaaia. The court found that the ability to litigate a file in respect to injuries sustained in an automobile accident is subject to the exceptions in s In all other cases the litigation is now absolutely prohibited. Therefore, once it is determined that an automobile caused the injuries sustained, you need not look to the chain of causality. The Honourable Justice Gerein found that the plaintiffsuffered injuries as a result ofan automobile accident, and the plaintiffwas prohibited from bringing an action pursuant to s A Notice ofappeal has been filed regarding this matter.

13 -9 - Kutcher v. Markham et ai., (30 July 1998) J.C. Yorkton, Q.B. No. 235 of 1996, 1996, (Sask. Q.B.) The plaintiffwas a passenger in her own vehicle that was exiting the parking lot ofthe West Broadway Mall after having mechanical repairs completed to the vehicle. Upon exiting the parking lot, the passenger side tire fell ofcausing the vehicle to stop suddenly, and causing injury to the Plaintiff The plaintiffsought general damages from the defendant for negligently installing the tire and wheel assembly. The Honourable Madame Justice Pritchard dismissed the claim stating that pursuant to the AAIA, the action is statute barred. Chabot v. Jones, (13 August 1998) J.C. Swift Current, Q.B. No. 93 of 1997 (Sask. Q.B.) The plaintiffwas a resident ofalberta, operating an Alberta insured vehicle in Saskatchewan when she was involved in a single vehicle accident in Saskatchewan. The plaintiffswerved to miss a horse that allegedly dashed onto the highway and caused her to take evasive action, which resulted in the collision with a guardrail. The plaintiff contends that Part VIII ofthe AAIA was not intended to cover non-residents of Saskatchewan and that she has a right to bring an action for bodily injury. The Honourable Mr. Justice Annstrong held that the plaintiffs claim relating to compensation for bodily injuries is statute barred pursuant to the provisiqns ofss. 102(a) and (c). However, the claim for automobile damage and loss ofclothing shall be entitled to proceed provided they are not covered under Part VIII benefits. ACTIONS CHALLENGING EXCLUSIONS FROM PART VIII OF THE ACT Johnson v. Saskatchewan Government Insurance, (1997), 151 Sask. R. 315 (Q.B.) On July 13, 1995 Lyle Johnson delivered a truckload ofgrain to the Saskatchewan Wheat Pool using a 1976 Ford 3-ton. After unloading the grain, the vehicle would not start. As a result Lyle Johnson poured approximately one ounce ofgasoline into the carburetor while another individual turned the key in the ignition. An explosion resulted causing Lyle Johnson serious burn injuries. The claim for injury benefits was denied to Lyle Johnson under Part VIII ofthe AAIA based on section 101(2)(a) that the injuries were caused while the vehicle was not in motion and section 101(2)(d) that the injury was caused by the victim in connection with the maintenance, repair, alteration or improvement ofthe automobile. The Plaintiffappealed to the Court ofqueen's Bench claiming that the injuries received by Lyle Johnson were "caused by an automobile". SGI asserted that the cause ofthe injury was the negligence oflyle Johnson pouring gasoline directly into an internal combustion engine. The Honourable Justice Matheson found that at the time ofthe explosion and fire, the. truck was not in motion. Therefore Lyle Johnson was not entitled to insurance benefits

14 -10 - provided by Part VIII ofthe act because the vehicle was not in motion at the time ofthe accident. This case is presently under appeal to the Court ofappeal and it is anticipated that a decision will be rendered by Spring, ACTIONS CHALLENGING CALCULATION OF BENEFITS PRESCRIBED BY PART VIII Korpess v. Saskatchewan Government Insurance, (1996), 151 Sask. R. 152 (Q.B.); (1997), 163 Sask. R. 227 (C.A.) The applicant is the surviving spouse ofroy Korpess who died in a motor vehicle accident. The basis ofthe court challenge involved the death benefit calculation based on her late husband's net income rather than on the gross income. The formula used is set out in s. 146(1) and Regulation 33. The Court found that the manner in which SOl interpreted "income replacement benefit" and the death benefit calculation was incorrect. The Honourable Mr. Justice Rothery ordered SOl to base the calculation ofthe death benefits based on the gross income rather than the net income. The matter was next appealed to tbe Court ofappeal before the Honourable Mr. Justices Sherstobitoff, Lane and Jackson JJ.A.. The Court ofappeal heard the matter on December 1, 1997 and the decision ofthe Court of Queen's Bench was set aside. When considering the facts ofthe case, the Court ofappeal found the trial judge failed to take into account two principles ofstatutory interpretation. The first being that the court should use the interpretation which produces the greatest harmony and least inconsistency; and the second being that although words used in various parts ofa statute may have different meanings in different places, they are generally presumed to have the same meaning in all instances. As a result, the Court ofappeal set aside the decision of the Court ofqueen's Bench and confirmed that SOl's initial death benefit calculation based on net income is correct. Arlitt v. Saskatchewan Government Insurance, (1998), 169 Sask. R. 113 (Q.B.) Beverley Mae Arlitt was killed ina motor vehicle accident on August 30, The plaintiffearl Arlitt appealed the calculation ofdeath benefits he was entitled to and the method ofcalculation. At the time ofthe accident the deceased operated a purebred cattle-farming business. Historically, income tax returns were filed using a "cash method", and this method resulted in a calculation of$14, ofincome for the 52 weeks preceding her death. This method does not include inventory as income. Subsequent to the death ofmrs. Arlitt a fmal tax return was prepared for self-employed business income using the accrual method ofcalculating income which included inventory as income and resulted in an income of$50, SOl disputed the calculation stating that since a historical use ofthe cash method was used, a change to the

15 -11 - accrual method would significantly inflate the level ofearnings and result in an artificially inflated IRB. They argued that s. 146(1) requires the IRB benefit be calculated as ifthe victim survived the accident, and that the deemed disposition of inventory provisions were inapplicable. The Honourable Mr. Justice Kruger agreed that "a change from the long standing practice ofcalculating income by the cash method to the accrual method was not justified". In the instance at hand the abnormal increase in the amount ofincome substantially increased the death benefit amounts. Also, there were no compelling reasons presented to the court as to why there was a departure from the established practice ofthe accounting method. As a result the court held that for the purposes ofcalculating the death benefit, SGI was entitled to use the cash method of$14, It should be noted that a Notice ofappeal has been filed with the Court ofappeal and the Appeal is pending. Changes to the Legislation In accordance with section 220 ofthe Act, the legislation is presently up for review. It is anticipated that a Review Committee will be appointed in the Spring or Fall of 1999 and the committee will determine whether the PIPP has met its original objectives of stabilization ofcosts, improved benefits to people injured in crashes and improved fairness to these individuals.

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17 Q.B. ofa.d. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE - and - CONSENT ORDER RESPONDENT BEFORE THE HONOURABLE mstice IN CHAJ\1BERS )----- ) THE DAYOF ),A.D UPON THE APPLICATION of the applicant and upon reading the Notice of Motion and supporting materials identified as items 1 through 25 itemized in the applicant's Notice ofmotion, with proofofservice thereof, all filed. AND UPON CONSENT ofthe parties hereto it is hereby ordered that: (a) A hearing pursuant to Section 198(2) ofthe Automobile Accident Insurance Act, S.S. 1994, c. A34 be held in respect to the subject matter in dispute, namely whether or not the applicant is entitled to benefits pursuant to said Act. (b) Each of the parties shall be entitled to production of documents from the other; (c). Each ofthe parties shall be entitled to conduct Examinations for Discovery;

18 2 (d) Either ofthe parties may set the matter down for hearing in accordance with the Queen's Bench Rules and any applicable Practice Directive hereunder as it may apply to the holding of a trial and the Queen's Bench Rules shall apply to any other material that arises in the action; (e) All costs of and incidental to this application will be reserved to the Judge trying the issues. ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this day of,1999. Local Registrar The applicant hereby consents to an Order being issued in the form of this draft Consent Order this day of, Per: ****************** _ Solicitors for the Applicant The respondent hereby consent to an Order being issued in the form of this draft Consent Order this day of, ****************** Per: Solicitors for the Respondent

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