An insured is entitled to pursue a tort claim for his actual loss after deducting no fault benefits
Insured entitled to maintain an action under s. 103 of the Automobile Insurance Act (Saskatchewan) against the defendants in respect to a claim for the difference between the amount the insurer contributed towards his rehabilitation and living assistance costs and his actual costs, and the difference between the income replacement benefits paid by the insurer and his actual yearly income loss.
Acton v. Britannia (Rural Municipality, No. 502),  S.J. No. 791, December 20, 2012, Saskatchewan Court of Appeal, J. Klebuc C.J.S., M.A. Gerwing and G.R. Jackson JJ.A.
The insured appealed from a decision of the Queen’s Bench in Chambers in which the judge declared that the insured was not entitled to maintain a tort action against the Rural Municipality of Britannia No. 502 and Ron Handel Farm Ltd. pursuant to s. 103(2) of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 to recover certain losses.
The insured was involved in a single vehicle rollover accident on a road maintained by the defendants. The insured suffered serious injuries and was left in a C6 spastic quadriplegic condition with a neurogenic bowel and bladder. He was unable to be gainfully employed and required rehabilitation services, living assistance and other care items. The insured was entitled to no fault benefits through Saskatchewan Government Insurance. The insured claimed those benefits but did not fully cover his actual cost for rehabilitation, living assistance and other cost of care items he reasonably required. Consequently, he commenced an action against the defendants to recover damages for the difference between the amount the insurer contributed towards his rehabilitation and living assistance costs and his actual costs as well as the difference between the income replacement benefits paid by the insurer and his actual yearly income loss.
The Court of Appeal held as follows:
(1) an insured may bring a tort action to recover damages for economic loss pursuant to s. 103(1)(a)(iii) if the benefits paid or payable by the insurer to or on behalf of the insured pursuant to Division 3 and Division 7 will never exceed the insurer’s s. 112(3) liability cap;
(2) the term “economic loss” in s. 103(1)(a)(iii) includes the gap between the actual reasonable cost of rehabilitation, living assistance and other items reasonably required, and the amount recoverable from the insurer for those items;
(3) the insured is entitled to maintain his tort action for the purpose of recovering his out-of-pocket costs to the extent that he is not entitled to recover those costs from the insurer; and
(4) the right of the insured to pursue the defendants for damages equal to his net loss of self-employment income as a farmer is not limited by the provisions of s. 103(1)(a)(i)(B).
This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.
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