[2010] S.J. No. 697

2010 SKCA 146

Saskatchewan Court of Appeall

J. Klebuc C.J.S., S.J. Cameron and R.G. Richards JJ.A.

November 18, 2010

This was an appeal of a chambers judge’s ruling trying the plaintiff’s claim against the respondent on the basis of section 40.1 of the Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”).

Section 40.1 was enacted as part of a “no fault” insurance scheme, and sought to prohibit independent actions for damages rising out of injuries sustained in motor vehicle accidents.

The plaintiff was injured in a motor vehicle accident in October of 2004. He applied for and was entitled to receive benefits under the Act. On the advice of a physician, the plaintiff underwent physiotherapy as part of his rehabilitation. The plaintiff continued with physiotherapy even after his benefits were terminated by his insurer. During the course of the physiotherapy provided by the respondent, the plaintiff suffered an injury to his arm. The plaintiff subsequently commenced an action against the respondent. The respondent successfully applied to have the action struck pursuant to section 40.1. The plaintiff appealed the ruling to the Court of Appeal.

The Court of Appeal allowed the appeal, holding that the chambers judge erroneously applied section 40.1 to the plaintiff’s action. The chambers judge found that because the injury to the plaintiff’s arm was linked to the injuries he suffered in the motor vehicle accident, section 40.1 barred an action against the respondent. The Court of Appeal ruled that section 40.1 only applies where a meaningful causal link exists between the motor vehicle accident and the injury on which the claim is based. Section 40.1 was not intended to immunize third parties from liability for negligent services provided in the treatment of injuries suffered in motor vehicle accidents.

The Court of Appeal held that the party seeking to strike a claim pursuant to section 40.1 must establish a meaningful causal link between the motor vehicle accident giving rise to the claim against them. This link will be broken if that party has acted negligently in the treatment of an injury arising out of a motor vehicle accident. In this case, the respondent failed to establish this link. Therefore the respondent could not rely on section 40.1 to strike the plaintiff’s claim.