Saskatchewan No Fault Scheme Catches All Out of Province Motorists

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Saskatchewan’s restrictive ‘no-fault’ auto insurance scheme strips the right of out of Province visitors from seeking tort compensation when injured through the wrongful driving of another in Saskatchewan.
In this week’s case (Ngo v. Luong) the parties were BC residents driving in Saskatchewan.  The Defendant lost control of the vehicle flipping over and causing injury to the passenger.  The Plaintiff started a lawsuit in BC Supreme Court hoping to get around Saskatchewan’s no-fault system.  Mr. Justice Ehrcke found that Saskatchewan’s laws applied and stripped the Plaintiff’s right to seek damages in tort.  In dismissing the claim the Court provided the following reasons:
[1]             Are British Columbia residents who are involved in a motor vehicle accident in Saskatchewan able to sue for damages in tort in British Columbia, or are they bound by Saskatchewan’s no-fault insurance scheme?…
[27]         The substantive rights of a person who is injured in a motor vehicle accident in Saskatchewan after 2002 and who did not make a tort election prior to the accident are those rights set out in Part VIII. That is true for anyone who did not make a prior tort election, regardless of whether that person is a Saskatchewan resident or not. The only difference is that the out-of-province claimant never had the possibility of making such an election. But once the accident has occurred and the claimant, whether from Saskatchewan or not, has not previously made a tort election, the claimant’s rights are those defined by Part VIII of the AAIA. Thus, the statute does not, as submitted by the plaintiff, set out a procedural election by which a claimant who has been injured in an accident can then select the means by which he or she enforces his or her rights. The rights are already defined by the statute at the moment the accident has occurred. Since the AAIA defines what the claimant’s rights are and not the means of their enforcement, the AAIA is substantive, not procedural law.
[28]         This categorization of the AAIA has the consequence that a British Columbia plaintiff who is injured in a Saskatchewan motor vehicle accident is in no better position bringing his or her suit in British Columbia than in Saskatchewan. The fact that this categorization eliminates a motive for forum shopping is an additional indicator that the categorization of the law as substantive is the correct categorization…
[30]         As I have found the AAIA to be substantive, rather than procedural law, and as the AAIA is therefore applicable to the plaintiff’s claim regardless of the fact that it is brought in a British Columbia court, the plaintiff’s request for a declaration that this action is not barred by the provisions of the AAIA is dismissed.
 

bc injury law, Mr. Justice Ehrcke, Ngo v. Luong, Saskatchewan

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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