Skip to content

Client Update: Future CPP disability benefits are deductible under the SEF 44 in Nova Scotia

In an important case for insurance practice in Nova Scotia, the Court of Appeal has confirmed that the value of future CPP disability benefits is deductible under the SEF 44 family protection endorsement.

Justice Scanlan wrote the unanimous reasons in Portage LaPrairie Mutual Insurance Company v Sabean, 2015 NSCA 53 [“Sabean“].

The very purpose of the SEF 44 was crucial to the result in this case. Recall that this endorsement provides additional coverage for an insured, in the case of a motor vehicle accident with an underinsured motorist. As the Court of Appeal emphasized in the earlier case of Campbell-MacIsaac v Deveaux, 2004 NSCA 87, the SEF 44 is “excess” insurance, beyond the minimum coverage mandated by the Insurance Act. It has also been called “last ditch” and “safety net” insurance.

According to Justice Scanlan in Sabean, the nature of the SEF 44 as “an excess coverage provision” is a key part of the context when interpreting the endorsement.

The particular provision at issue here was clause 4(b)(vii):

  1. The amount payable under this endorsement to any eligible claimant is excess to any amount actually recovered by the eligible claimant from any source (other than money payable on death under a policy of insurance) and is excess to any amounts the eligible claimant is entitled to recover (whether such entitlement is pursued or not) from:

    1. any policy of insurance providing disability benefits or loss of income benefits or medical expense or rehabilitation benefits;

The Court of Appeal agreed that CPP disability benefits are a “policy of insurance providing disability benefits” and therefore have to be deducted under this provision. Otherwise, the insured claimant would be “double dipping”, contrary to the purpose of the SEF 44 as excess insurance only.

With the release of Sabean, there is now a clear divide between the law in Nova Scotia and the law in New Brunswick on this issue. In Economical Mutual Insurance Co v Lapalme, 2010 NBCA 87, the New Brunswick Court of Appeal reached the opposite conclusion from the Court of Appeal in Sabean, and held that future CPP disability benefits are not to be deducted under New Brunswick’s version of the SEF 44. The NSCA expressly declined to follow Lapalme.

Congratulations to Scott Norton, Q.C., Scott Campbell, and Jennifer Taylor, all of Stewart McKelvey, who successfully represented the appellant in this case.

The foregoing is intended for general information only. If you have any questions or require further information on how this applies to your business, visit our Insurance practice group. For more on our firm, visit www.stewartmckelvey.com.

SHARE

Archive

Search Archive


Search
Generic filters

 
 

Changes to job classifications and immigration impacts

November 23, 2022

By Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…

Read More

Nova Scotia: Canada’s emerging immigration hub

November 17, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Bill C-27 – Canada’s proposed Artificial Intelligence and Data Act

November 16, 2022

Kevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…

Read More

Discovery: Atlantic Education & the Law – Issue 11

November 14, 2022

We are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…

Read More

The Winds of Change (Part 5): Atlantic Canada poised to benefit from clean energy tax credits

November 10, 2022

By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”).  The FES included a number of tax related announcements, including further…

Read More

“Constructive Taking”: Consequences for municipalities from the Supreme Court of Canada decision in Annapolis Group Inc. v. Halifax Regional Municipality

November 10, 2022

By Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…

Read More

Attract & Retain: Nova Scotia taps foreign healthcare workers to fill labour shortages

November 10, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The rise of remote work and Canadian immigration considerations

November 3, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The future of express entry: Targeted draws to meet Canada’s economic needs

November 2, 2022

By Sara Espinal Henao Since its initial launch in January 2015, Express Entry has been a pillar of Canada’s immigration system. Recently passed amendments to the Immigration and Refugee Protection Act (IRPA) promise to drive…

Read More

Filling labour gaps with foreign workers: What Canadian employers need to know

October 28, 2022

By Brittany Trafford It is no secret that employers in Atlantic Canada are struggling to fill labour gaps. In June 2019 the Atlantic Canada Opportunities Agency (ACOA) published a report[1] indicating that the overall labour…

Read More

Search Archive


Search
Generic filters

Scroll To Top