Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 5 7 F ollowing in the legal footsteps of most other jurisdictions in Canada, Nova Scotia is amending its Public Inquiries Act to protect witnesses and participants who provide testimony. Keeping current was not the impetus for the amendment, how- ever. The change was requested by the group developing the terms of reference for the much-anticipated inquiry into alleged abuse at the Nova Scotia Home for Colored Children. "We needed this amendment to allow people to par- ticipate fully," says Jennifer Llewellyn, a professor at the Schulich School of Law and facilitator of the design process for the upcoming inquiry. "It became par- ticularly important for us because of the nature of this inquiry." A restorative inquiry into the Home for Colored Children is being put in place that will bring government and community together to examine the effects of systemic and institutional abuse and racism, and to work together to build better relationships. Partici- pants have signed a statement of com- mitment to show support for the goals of the inquiry, and the inquiry will be overseen by a council that includes rep- resentatives from government, former residents, the home board, and African Nova Scotian community members. To encourage as many participants as possible to come forward, especially former residents who may have had an uneasy relationship with the judicial system, reassurance that criminal or civil proceedings cannot be launched is critical. "The threat is enough to silence people," says Llewellyn. Under the new legislation, which has now passed first reading, any state- ment or testimony given at an inquiry by a witness or participant cannot be used against them in a trial or any court proceeding, other than a prosecution for perjury. The change is important to ensure public inquiries are robust and relevant. "We want to understand what happened. We want people to come forward and speak freely," says Michelle Higgins, team lead and senior solicitor with the Nova Scotia Department of Justice. Similar legal protections are already in place in most Canadian jurisdictions including British Columbia, Saskatch- ewan, and Ontario. The provision was also recommended by the Uniform Law Conference of Canada. — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T Restorative public inquiry receives legislative change I n what has been called an "important case" for insurance practitioners, a Nova Scotia trial court's reliance on a New Brunswick Court of Appeal decision has been found to be a neighbourly misstep. At issue: whether future CPP disability benefits are deductible from Standard Endorsement Form disability benefits. Now according to a recent decision from the Nova Scotia Court of Appeal, CPP payments have been found to be insurance payments and if not deducted would result in double recovery. SEF 44 is a family protection endorsement, explains Scott Campbell, a partner with Stewart McK- elvey in Halifax who represented the insurance company in the case. "This is 'safety net' automobile insurance, which an individual can purchase from their auto insurer to protect against the possibility that they are injured by an underinsured motorist." In Portage LaPrairie Mutual Insurance Co. v. Sabean, the SEF 44 insurer successfully argued that it should be entitled to deduct the value of future CPP disability benefits that the plaintiff would receive. Justice Ted Scanlan determined that the New Brunswick appeal court's 2010 finding in Economi- cal Mutual Insurance Co. v. Lapalme, which the N.S. trial judge had relied heavily on, the relevant section had been interpreted in an "insured-friendly" way because of a perceived ambiguity in the language. Scanlan found no such ambiguity, but he did acknowledge the importance of the question before the court. "The main issue in the present case is one of importance to the appellant and other insurers," he wrote. "The issue is one that, no doubt, has impacted insurance cases and settlements since the imple- mentation of SEF 44 provisions. It is important to insureds and insurers that it be resolved." While the decision provides Nova Scotia lawyers clarity, it also creates greater uncertainty. "Given that the decision of the Nova Scotia Court of Appeal is at odds with the decision in Lapalme by the New Brunswick Court of Appeal, there is now a rift in the appellate jurisprudence on this question of law," notes Campbell. In addition, he adds, although the highest court of the province has concluded that an SEF 44 insurer is entitled to deduct the present value of future CPP disability benefits, it is not clear how this amount should be calculated. — DM N.S. APPEAL COURT REJECTS N.B. APPEAL COURT REASONING

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