Canadian Underwriter

How much does auto insurer owe an injured claimant who cannot go to school?

October 11, 2019   by Greg Meckbach

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Saskatchewan’s government-run auto insurer has won a victory of sorts before the Supreme Court of Canada arising from a disputed accident benefits claim, although the carrier lost its key argument.

Canada’s top court announced Thursday it will not hear an appeal from Linda Gardipy, who was injured Jan. 31, 2011 in a motor vehicle accident. Gardipy took issue with a cost award made by the Automobile Injury Appeal Commission that was upheld on appeal in a ruling released in April. On May 29 she filed for leave to appeal to Canada’s highest court, which was dismissed with costs.

The Court of Appeal for Saskatchewan sided with Gardipy on the key issue, which was on whether she was entitled to the loss of studies benefit for post-secondary education under no-fault accident benefits auto insurance.

In Saskatchewan auto insurance law, the loss of studies benefit is intended for claimants who are full-time students on the day of the accident and they are unable to begin or to continue their current studies because of the accident.

For secondary education, the benefit is $3,726 for each semester not completed. The same benefit for post-secondary education is $7,451. The court ruled that Gardipy was entitled to the higher amount.

At the time of the accident, Gardipy was attending Northwest Regional College in an adult education program that was considered Grade 10 upgrading. SGI argued, therefore, that she was entitled to the benefit for the secondary level and not post-secondary level education.

But the Automobile Accident Insurance Act defines post-secondary institution as any educational institution that is not administered pursuant to The Education Act. The provincial law that applies to the college and Gardipy’s program of study is the Regional Colleges Act and not the Education Act.

SGI countered that the loss of studies benefit must be based on the level of education at which the student is studying, not on the facility at which the student is studying.

Northwest Regional College has a secondary school equivalent program for adults that falls under the Education Act. But that is only open to students who are younger than 22. Gardipy was older than 22 and in a different program. Although her program was considered Grade 10 upgrading, it is not governed by the Education Act and does not necessarily teach mature adults the exact same thing that teenagers in high school would learn.

Gardipy is entitled to the higher award, the Automobile Injury Appeal Commission ruled in its decision released Sept 15, 2017 and upheld earlier this year on appeal.

The term post-secondary level is not defined in the AAIA, Justice Ralph Ottenbreit of the Court of Appeal for Saskatchewan wrote.  So the term is ambiguous and must be construed in a broad and generous manner.