Fight for justice
Wolfville firm wins precedent-setting Supreme Court of Canada appeal
A Lawrencetown man who lost his arm in a motorvehicle accident is now part of a precedent-setting Supreme Court of Canada victory that could ultimately benefit countless Canadians.
Tens of thousands of dollars were on the line for Andrew Sabean when Kimball Law’s Derrick Kimball, a personal injury lawyer, worked alongside second chair Sharon Cochrane to plead their client’s case – Sabean v. Portage La Praire Mutual Insurance Company – before seven Supreme Court of Canada judges on Oct. 5, 2016.
“At the end of the day, we’re talking about an individual, Mr. Sabean, who went through a terrible experience in his life,” said Kimball.
“He’s in an accident. He didn’t ask for it to happen. He’s going through a green light in an intersection and he’s broadsided by another vehicle, and he ends up losing his arm.”
Sabean was awarded $465,000 in damages following a jury trial in May 2013, but this initial court decision hardly marked the end of the Annapolis Valley man’s fight for justice.
“Millions of Canadians carry a standard endorsement on their auto insurance policy that protects them in the event they are injured by an underinsured driver. This “Family Protection Endorsement” provides that the victim’s own auto insurance policy must make up for any shortfall in damages not covered by other insurance policies,” a recent press release issued by Kimball Law reads.
“The question at the heart of Sabean was whether an insurance company could claw back Canada Pension Plan (CPP) benefits from a Lawrencetown man seriously injured by an underinsured driver. The insurance company argued that future CPP benefits should count as an insurance policy, and so they demanded that Mr. Sabean pay back tens of thousands of dollars worth of his trial award.”
In Sabean’s case, there was a shortfall of about $83,000 to be claimed through his own insurance policy.
Case of national importance
Kimball felt compelled to apply for a leave to appeal to the Supreme Court of Canada upon noticing that there were inconsistent interpretations regarding the wording of the endorsement that would allow Sabean to turn to his own insurer to make up for the shortfall in damages awarded.
“It was clear Nova Scotia Court of Appeal disagreed with trial judge, and decided Kimball Law’s Derrick Kimball
that the insurance company’s interpretation was correct and that CPP was deductible,” said Kimball.
“The way the policy is written this is a standard endorsement to, basically, millions of policies across the country.”
Kimball submitted an application to have the Sabean’s case reviewed by the highest court in the country knowing that the New Brunswick Court of Appeal dealt with a similar case, but there still didn’t appear to be a clear consensus on the issue that could impact motorists across the country.
“The vast majority of applications for leave to appeal to the Supreme Court of Canada are dismissed by the Supreme Court on the basis that it doesn’t fit the criteria,” said Kimball, who has argued three cases at the Supreme Court of Canada since becoming a lawyer in 1977.
“The Supreme Court of Canada is interested in resolving questions that come before courts in Canada that are of national interest and, of particular interest to them are cases where the… top court in each province disagrees.”
A precedent-setting decision
The end result of Kimball Law’s appeal in Ottawa was a unanimous 7-0 decision in favour of Sabean. The Kimball team argued that the language in the insurance policy does not clearly indicate that CPP benefits will be classified as a “policy of insurance.”
“Part of our argument was not only does the language not immediately take you to consider the Canada Pension would be a policy of insurance but, if they really wanted to deduct Canada Pension, the insurance company could have written that right into the policy the way they did Workers’ Compensation and some other things,” said Kimball, who stressed that some people might not opt to pay for the extra endorsement on their policy if this is clearly stipulated.
When the judgment was released in late January, Kimball was thrilled to learn the Supreme Court of Canada panel unanimously agreed with Kimball Law’s position.
The Wolfville-based lawyer sees this career-highlight victory as an important win for not only Sabean, but a precedent-setting case that stands to benefit many Canadians facing similar hurdles following a motor vehicle accident.
“In the past, insurance companies were taking this position, and were deducting these benefits from people,” said Kimball.
— Derrick Kimball