Insured has burden of proof in application to reinstate accident benefits

Insurance law – Automobile insurance – Statutory Accident Benefits Schedule – Income replacement benefits – Medical and rehabilitation expenses – Practice – Appeals – Duties and liabilities of insured – Burden of proof

Cass v. Saskatchewan Government Insurance, [2021] S.J. No. 408, 2021 SKCA 130, Saskatchewan Court of Appeal, September 29, 2021, G.R. Jackson, L.M. Schwann and J.D. Kalmakoff JJ.A.

The insured suffered injuries in a motor vehicle accident. He received income replacement and rehabilitation benefits from the insurer until he returned to work. The insurer terminated the benefits on the basis that the insured was able to substantially perform the duties of employment he had at the time of the motor vehicle accident. The insured did not appeal.

Several months after his benefits were terminated the insured left his employer and applied to have his benefits restored. The application was denied. The insured appealed to the Automobile Injury Appeal Commission, which dismissed his appeal. The insured appealed to the Saskatchewan Court of Appeal.

On the appeal there were two issues. The first was whether the insured or the insurer bore the onus of proof on an application to have benefits reinstated. The Court of Appeal held the insured had the burden of proof. The second was whether the Commission had erred in overlooking evidence that the insured was unable to work. The Court of Appeal noted that its jurisdiction was limited to reviewing errors of law. As such, the question was whether this ground of the insured’s appeal raised a question of law. The Court of Appeal could find no error in law in how the Commission had dealt with the evidence. As such, the appeal was dismissed.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at [email protected].

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