Precedent-Setting Supreme Court of Canada decision has been made

Published: March 2, 2017

Updated: July 24, 2018

Author: Luke Jones



A Supreme Court of Canada decision regarding an auto accident and claim could have the potential to change perceptions in Canada and is being called precedent-setting.

The case relates to a Lawrencetown man who lost his arm in a collision. Andrew Sabean was broadsided when progressing through a green light and was awarded $465,000 in damages following an initial trial in May 2013. However, Sabean’s representative, Kimball Law’s Derrick Kimball questioned whether his insurance company, Portage La Praire Mutual Insurance, could claim CPP benefits from the injured man.

“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.”

There was a shortfall of $83,000 that would be claimed through the insurance company. Kimball felt the case could be appealed through the Supreme Court of Canada as he believed the wording of the endorsement was inconsistent.

In Sabean’s case, there was a shortfall of about $83,000 to be claimed through his own insurance policy.

“It was clear Nova Scotia Court of Appeal disagreed with trial judge, and decided 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.”

The appeal went completely in favour of Kimball Law and Sabean, with the court unanimous agreeing a 7-0 decision.

“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.