2010 SKCA 146 Date:, 2010 SKCA 146

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 146 Date: 20101118 Between: Docket: 1791 Marian Alexander Cebryk Appellant (Plaintiff) - and - Paragon Enterprises

(1984) Ltd. carrying on business as Armstrong's Physiotherapy Clinic Respondent (Defendant) - and - Jackson Giroux Respondent (Defendant) Coram: Klebuc C.J.S., Cameron & Richards JJ.A. Counsel: James S. Ehmann, Q.C. for Marian Alexander Cebryk Shannon L. Metivier for Jackson Giroux Gordon D. McKenzie for Paragon Enterprises

(1984) Ltd.

Appeal: From: 2009 SKQB 171 Heard: December 3, 2009 Disposition: Appeal Allowed Written Reasons: November 18, 2010 By: The Honourable Chief Justice Klebuc In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Richards Klebuc C.J.S. I. Introduction [ 1 ] In this action, the appellant pled that he suffered damages by virtue of a distinct injury (“the new injury”) he suffered as a consequence of the respondents having negligently treated an earlier injury he suffered in a motor vehicle accident (“the motor vehicle injury”).

The respondents denied any negligence on their part and applied under Rules 188 and 189 of The Queen's Bench Rules for an order striking the appellant's action on the basis that the new injury arose out of or stemmed from the motor vehicle injury, and therefore, is prohibited by s. 40.1 of The Automobile Accident Insurance Act , R.S.S. 1978, c. A-35 (the " AAIA "). [ 2 ] The Chambers judge granted an order striking the action based on s. 40.1 and Hill v.

Saskatchewan Government Insurance , 2008 SKQB 426 , [2009] 2 W.W.R. 124, a decision he believed the rule of stare decisis and comity convention required him to follow. The appellant appeals from this order. [ 3 ] I would grant the appeal for the reasons hereafter given. II. Background [ 4 ] After considering the appeal record on which the written and oral submissions by the parties were based, the Court advised counsel that the Court may be unable to adjudicate the issues before it based on the limited evidence the parties had provided the Chambers judge.

Consequently, the Court gave counsel an opportunity to file an agreed statement of facts setting forth additional evidence relevant to the appeal. Counsel responded by providing the following agreed statement of facts: The parties agree that the following facts are to be assumed by this Honourable Court: 1. The Applicant, Marian Alexander Cebryk, sustained bodily injuries in a motor vehicle accident that occurred in Saskatoon, Saskatchewan on October 25, 2004. 2. Mr. Cebryk applied for and was entitled to receive bodily injury benefits (no fault) pursuant to

Part VIII of The Automobile Accident Insurance Act , R.S.S. 1978, c. A-35 (the “ Act ”). 3. On the advice of his physician, Mr. Cebryk underwent a series of physiotherapy treatments at the Respondent’s physiotherapy clinic (“Armstrong’s Physiotherapy Clinic”) for treatment of injuries sustained in the motor vehicle accident on October 25, 2004. The physiotherapy treatments occurred on the following dates: November 8, November 12, November 15, and November 18, 2004. 4. The physiotherapy treatments were provided by Jackson Giroux, an employee of Armstrong’s Physiotherapy Clinic. 5. SGI confirmed coverage, under

Part VIII, Division 3 of the Act , for the physiotherapy treatments prescribed at Armstrong’s Physiotherapy Clinic [Appeal Book, pages 30 and 31]. 6. Mr. Cebryk was advised by letter from SGI dated December 7, 2004, a copy of which is attached, that his

Part VIII benefits were being suspended. 7. Mr. Cebryk was advised by a letter from SGI dated December 23, 2004, a copy of which is attached, that his

Part VIII benefits

were being terminated pursuant to

section 183 of the Act . Mr. Cebryk denies that he failed to show up for an assessment and denies that he refused to provide income information, as alleged by the SGI letter of December 23, 2004. Mr. Cebryk therefore did not and does not agree with SGI’s decision to terminate his

Part VIII benefits. However, he did not appeal the SGI decision to terminate his benefits. 8. Mr. Cebryk paid Armstrong’s Physiotherapy Clinic for the physiotherapy treatments expecting reimbursement from SGI; however, Mr. Cebryk was not reimbursed for the cost of the physiotherapy treatments prior to termination of his

Part VIII benefits 9. It is alleged by Mr. Cebryk in the Statement of Claim that in the process of providing physiotherapy treatment on November 12, 2004 Jackson Giroux, negligently caused a muscle in Mr. Cebryk’s right arm to be torn and that such injury was caused solely by the negligence of the Respondents. Apart from the fact that Mr. Cebryk attended for physiotherapy treatment on November 12, 2004, these allegations are not admitted by the Respondents. 10.

The Appellant and Respondents submit that the agreed facts, as stated herein, warrant determination of the following question of law: whether the Appellant’s action, as set out in the Statement of Claim and described in paragraph 9, is barred by s. 40.1 of the Act ? The aforementioned agreed statement of facts essentially replaces the admissible evidence before the Chambers judge. III.

Judgment under Appeal [ 5 ] The Chambers judge gave the following reasons for striking the appellant’s action: [24] While I accept that the plaintiff's submissions are not without some merit, I am of the view that the principles of stare decisis and comity direct that I follow the reasoning and rationale of Barclay J. in Hill v. Saskatchewan Government Insurance , supra .… . . . [26] ... The decision of Barclay J. in Hill v. Saskatchewan Government Insurance , supra , is lengthy and reasoned. The judgment canvasses guiding judicial principles, particularly from superior courts, and reaches the noted conclusion.

Accordingly, I decline to depart from the rationale of Barclay J. and, in the event that the plaintiff (respondent) continues to believe that the principles embodied in such analysis are an error, the remedy for the plaintiff is to appeal to the Court of Appeal. [27] Therefore, I conclude that the plaintiff's action alleging negligence in regard to treatment undertaken due to the injury which he sustained in the motor vehicle accident is barred by s. 40.1 of The Automobile Accident Insurance Act , supra . I have concluded that it is appropriate to resolve the defendant's application pursuant to Rule 188 .

Following from this, I am of the opinion, as contemplated in Rule 189, that my decision on the foregoing issue disposes of the whole action and, accordingly, within the discretion provided in Rule 189, I order that the plaintiff's action against both defendants is dismissed. IV. Legislation [ 6 ]

Section 40.1 of the AAIA provides: 40.1 Notwithstanding any other Act or law but subject to this Part and

Part VIII: (

a) no person has any right of action respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force; and (

b) no action or proceeding lies or may be commenced in any court respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force; [ 7 ] The original objective of the AAIA was to create a compulsory universal insurance fund into which all drivers resident in Saskatchewan and all owners of motor vehicles operated within the Province would pay a premium when they obtained a driver’s licence or vehicle licence required to operate a motor vehicle in Saskatchewan. The overarching purpose of the fund was to provide: (

a) specific benefits in relation to injuries suffered in or as a consequence of a motor vehicle accident regardless of whether the insured negligently caused the accident; and (

b) insurance coverage for liability claims related to the operation or ownership of a motor vehicle. [ 8 ] Prior to 1994, the AAIA did not bar an insured, injured in a motor vehicle accident, from pursuing a common law cause of action against the negligent driver of a motor vehicle who injured him, or a third party who negligently treated an injury the insured suffered in

a motor vehicle accident. The determination of liability for an injury, or the quantum of damages to which the injured insured was entitled, often involved protracted and sometimes costly litigation. [ 9 ] In 1994, The Automobile Accident Insurance Amendment Act, 1994 , S.S. 1994, c. 34, s. 18 (“the 1994 Amendment”) significantly altered the AAIA by converting it to a comprehensive no-fault insurance scheme. This was accomplished, in part, by s. 102. It provides: 102 Notwithstanding any other Part of this Act or any other Act or law, but subject to the other provisions of this Part: (

a) no person has a right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the date this

Part comes into force; (

b) no action or proceeding lies or may be instituted in any court respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this

Part comes into force; and (

c) the right to benefits stands in lieu of all rights of action to which a person is or may be entitled to respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this

Part comes into force.

Section 102(

b) is of particular significance, for s. 40.1 (discussed later) incorporates many of its provisions. [ 10 ] During the second reading of the 1994 Amendment before the Legislative Assembly, the Minister responsible for the AAIA and Saskatchewan Government Insurance (“SGI”) stated: Mr. Speaker, this legislation exemplifies how careful study and consultation work together to meet the needs of Saskatchewan people. This Bill addresses major concerns, not only for SGI and its ability to operate a sound fiscal insurance program.

More importantly, it gives all victims assurance that they will be properly cared for when injured in an auto accident . Mr. Speaker, we found through a comprehensive study that a good number of accident victims are receiving inadequate rehabilitation and other benefits. As well, the priority in which they are receiving those benefits is backwards. This means that many victims with similar injuries can receive quite different compensation depending on who is responsible for the accident. Under this proposed Bill, those problems and concerns are addressed.

Instead of going through a lengthy, complicated legal process to assess benefits, victims are automatically compensated. . . . In closing, Mr. Speaker, we believe this legislation will solve concerns with respect to the level of benefits offered to auto accident victims, the fairness of how they are delivered, and the cost of providing those basic benefits. Those three foundations are the basis for the proposed legislation before the House.

It will ensure in the future that all accident victims receive immediate and improved compensation for their injuries without having to bear increased costs. (See: Saskatchewan, Legislative Assembly, Official Report of Debates (Hansard) , (18 April 1994), online: http://www.legassembly.sk.ca/hansard/22L4S/940418.PDF at pp. 1615-16 (Hon.

Keith Goulet). [Emphasis added.] Nowhere in his address to the Legislative Assembly did the Minister indicate that the proposed legislation was intended to extend comprehensive immunity from liability to non-motorists (defined at para. 18) if the injuries they caused were in some way connected to a motor vehicle accident in which the insured suffered a bodily injury. [ 11 ] The no-fault insurance scheme implemented in 1994 encountered considerable criticism (See: e.g.

Maurice Laprairie, Q.C. and Cristin Wagner, "Ralph Nader Speaks Out on Saskatchewan No-Fault", Law Society of Saskatchewan, Benchers' Digest, Volume 11, Issue Number 4, August 1998 ( http://www.lawsociety.sk.ca/BenchersDigest/bv11i4.htm ). The criticism led to The Automobile Accident Insurance Amendment Act, 2002 , S.S. 2002, c. 44, s. 13 (“the 2002 Amendment”), which allows an insured the choice of either no-fault coverage or tort based coverage.

Sections 40.2(1) and 41(2) thereof provide: 40.2(1) A Saskatchewan resident may provide the insurer with a tort election that sets out that the resident's intention to: (

a) elect to obtain coverage pursuant to

Part II; (

b) waive the resident's right to obtain benefits pursuant to

Part VIII; and (

c) elect to bring an action for loss or damage for bodily injury caused by a motor vehicle arising out of an accident. . . . 41(2) Notwithstanding subsection (1), an action may be brought against a

Part VIII beneficiary mentioned in subsection (1) for: (

a) property damage in excess of any insurance money paid or to be paid to the person claiming against the

Part VIII beneficiary pursuant to

section 51.1; (

b) economic loss caused by that

Part VIII beneficiary in excess of any benefits or insurance money paid or to be paid to the person claiming against that

Part VIII beneficiary pursuant to

Part II or

section 51.1; and

(

c) non-economic loss caused by that

Part VIII beneficiary in excess of any insurance money paid or to be paid to the person claimingagainst that

Part VIII beneficiary pursuant to

section 51.1, but only if: (

i) the loss is caused by a

Part VIII beneficiary operating a motor vehicle who is convicted of an offence pursuant to paragraph 253(

a) or(b), subsection 254(5) or subsection 255(2) or (3) of the Criminal Code; or (ii) the loss is caused by a

Part VIII beneficiary operating a motor vehicle who intentionally caused or attempted to cause bodily injuryto another person and, as a result of the operation of the motor vehicle, the operator is convicted of an offence pursuant to

section 235,236, 239, 249, 266, 267, 268 or 269 of the Criminal Code. [12] The 2002 Amendment also repealed s. 102 andenacted ss. 40.1 and 41(1) to enable the tort based coverage option described therein. During the second reading of the 2002 Amendment,the Minister responsible for SGI described its purpose: Mr. Speaker, it is important that we take action to improve no-fault insurance. Equally it is important that we recognize that some peoplewant a very different type of injury insurance.

During the customer feedback campaign, some people clearly indicated they want theability to sue an at-fault driver for pain and suffering when they are injured in an automobile accident. ... To that end, I am pleased to put forward a further amendment to The Automobile Accident Insurance Act that will allow allSaskatchewan residents to choose the auto injury insurance product that best meets their individual needs.

No-fault insurance will becomplemented by a new tort based product modelled on the premier option. (See: Saskatchewan, Legislative Assembly, Official Reportof Debates (Hansard), (7 June 2002), online: http://www.legassembly.sk.ca/hansard/24L3S/020607Hansard.pdf at p. 1896 (Hon. Maynard Sonntag). V. Positions of the Parties [13] The appellant maintains the order under appeal is not sustainable by virtue of the following errors: (

a) the Chambers judge held,without the benefit of adequate supporting evidence, that the cause of action pled in paras. 8-16 of the statement of claim arose out of orstemmed from bodily injuries caused by a motor vehicle accident rather than a new cause of action based on an injury caused by therespondents’ negligence; and (

b) the Chambers judge misinterpreted s. 40.1 as barring his action merely because the motor vehicleaccident was the sine qua non without which the appellant’s new injury would not have arisen. [14] The respondents maintain the Chambers judge correctly interpreted s. 40.1 of the AAIA and correctly applied the provisions ofRules 188 and 189 of The Queen's Bench Rules. They submit that s. 40.1 applies if any causal link exists between the motor vehicleinjury and the cause of action relied on by the appellant.

Moreover, the respondent Giroux takes the position that novus actusinterveniens is a common law causation principle which is either not applicable to a no-fault scheme or, in the alternative, should not beapplied lightly. VI. Standard of Review [15] Justice Cameron updated and summarized the applicable standard of review in Gallop v. Mulatz, 2008 SKCA 29, [2008] 5 W.W.R.231.

At paras. 33-34 he stated: [33] To the extent they give rise to issues of fact, in the sense they call into question the findings of fact made at trial, it is now clearthat the power of the Court of Appeal to act on its own view of what the evidence proves, as provided for by s. 14 of The Court of AppealAct, 2000, S.S. 2000, c. C-42.1, is fettered in its exercise.

Before exercising this power the Court must first be satisfied that a finding offact at trial rests on a “palpable and overriding error” by the trial judge, which is to say the Court must be satisfied the impugned findingis “clearly wrong” or “unreasonable” or “unsupported by the evidence”: H.L v. Canada (Attorney General), 2005 SCC 25 ,[2005] 1 S.C.R 401 (per Fish J. at paras. 55-56).

Only then may the Court set aside an impugned finding of fact and act on its own viewof what the evidence proves in relation to the fact in controversy. [34] To the extent the points give rise to issues of law, in the sense they call into question the trial judge’s identification of the relevantlaw, including the judge’s selection and

interpretation of the law, the power of the Court to act on its own view of the law is not fetteredin this or any other way. If, in the judgment of the Court, the trial judge’s identification of the relevant law is not “correct” the Court is tosubstitute its own view of the law for that of the trial judge and act accordingly: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2S.C.R. 235.

In general, this is also true of the application of the law to the facts as found, for this entails evaluating the facts against alegal standard, a matter that calls for a normative judgment and the drawing of conclusions in law based on the facts as found: St-Jean v.Mercier, 2002 SCC 15 , [2002] 1 S.C.R. 491; ABB Inc. v. Domtar Inc., 2007 SCC 50; Ellis-Don Ltd. v. Ontario (LabourRelations Board), 2001 SCC 4 , [2001] 1 S.C.R. 221; Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. (2002),2002 SKCA 100 , 223 Sask. R. 236 (C.A.).

[16] Where the order or judgment under appeal involves the exercise of discretion by the court below, the function of this Court islimited to reviewing whether the judge abused his or her discretion. See: Rimmer v. Adshead, 2002 SKCA 12, [2002] 4 W.W.R. 119where the applicable deference is described at para. 58. VII. Analysis [17] The following issues arise in this appeal: A. Does s. 40.1 apply if the causal link between the injury on which the appellant’s claim is based and the motor vehicle accident isremote? B.

If the answer to question “A” is “no”, what causal linkage is required between the injury on which the appellant’s claim is basedand the motor vehicle accident before s. 40.1 will apply? C.

Are the facts before the Court sufficient to support a finding that the required causal link exists between the motor vehicle accidentand the injury on which the appellant’s action is based? [18] In these reasons: “an insured” means a person or entity who selected no-fault insurance coverage under the AAIA “a non-motorist” means a person or entity who is not an insured under the AAIA and by means of negligently produced or suppliedproducts or negligent services provided during or in connection with the treatment of an injury the insured sustained in a motor vehicleaccident, caused a new injury or materially exacerbated the injury the insured sustained in a motor vehicle accident That said, I turn to the first question.

A. Does s. 40.1 apply if the causal link between the injury on which the appellant’s claim is based and the motor vehicleaccident is remote? [19] As previously noted, the appellant submits s. 40.1 is not intended to absolve non-motorists from liability for injuries caused by theirnegligence simply because those injuries, in some minor way, are connected to a motor vehicle accident.

He posits that if a non-motorist is entitled to rely on s. 40.1, the causation principle of novus actus interveniens applies where the evidence warrants itsapplication. [20] The respondents maintain that s. 40.1 bars all actions against all persons, including non-motorists, so long as the cause of actionsued on in some limited manner arose out of or stemmed from a bodily injury suffered in a motor vehicle accident.

They emphasize thatby using the phrase “[n]otwithstanding any other Act or law ... no person has any right of action,” the Legislature intended to strip theappellant of whatever right he may have had to sue them. [21] These conflicting

interpretations bring the rules for statutory

interpretation into play. Historically, the general rule of statutoryinterpretation provided that where the precise words used in a statute are plain and unambiguous they must be construed in their ordinarysense, even if the construction may lead to absurdity or manifest injustice. Conversely, if the words of a statute are open to twointerpretations, of which one is reasonable and sensible, it is to be adopted. See: Farm Credit Corporation v. Corriveau, (SK KB), [1993] 6 W.W.R. 360 (Sask.

Q.B.). [22] In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, the Supreme Court of Canada rejected the plainmeaning approach on the basis that it is incomplete and replaced it with what is often referred to as the modern principled approach tostatutory

interpretation. Justice Iacobucci, speaking for the Court in Rizzo Shoes, articulated the principled approach at paras. 20 and 21:

[20] At the heart of this conflict is an issue of statutory

interpretation. Consistent with the findings of the Court of Appeal, the plainmeaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to thoseemployers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into thisinterpretation. However, with respect, I believe this analysis is incomplete. [21] Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R.213; Royal Bank of Canada v. Sparrow Electric Corp., (SCC), [1997] 1 S.C.R. 411; Verdun v. Toronto-DominionBank, (SCC), [1996] 3 S.C.R. 550; Friesen v. Canada, (SCC), [1995] 3 S.C.R. 103. [23] The approach in Rizzo Shoes is consistent with s. 10 of The

Interpretation Act, 1995, S.S. 1995, c. I-11.2.

Section 10 states thatenactments “… shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretation thatbest ensure the attainment of its objects.” [24] Ruth Sullivan in Sullivan on the Construction of Statutes, 5th ed., (Markham, Ont.: LexisNexis Canada, 2008) at p. 576, notes themanner in which extrinsic evidence may be used as part of the modern principled approach: It is sometimes said that the courts should not look to extrinsic materials, even though the materials otherwise would be admissible,unless the legislation to be interpreted is ambiguous. Arguably, this constraint is pointless and misleading and should be abandoned. It isa vestige of the plain meaning rule.

To say that a provision is not ambiguous, that its meaning is clear or "plain", is a conclusion reached at the end of

interpretation. Itis a judgment that can appropriately be made only in light of all the available evidence of legislative meaning and intent. The issue, then,is whether the assistance afforded by extrinsic materials — as legal context, as evidence of external context, as evidence of legislativeintent, or as authoritative opinion evidence — should be included in the initial work of

interpretation. It is hard to see why it should beexcluded. [Footnote omitted.] [25] Sullivan, supra (at p. 3) further suggests the following questions be considered when interpreting whether a provision applies toparticular facts: ● what is the meaning of the legislative text? ● what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposesdid it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? ● what are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature ispresumed to respect? [26] In applying Rizzo Shoes, consideration is to be given to the long held principle that statutes are to be construed in conformity withthe common law, except where the statute clearly indicates that common law rights are to be altered or extinguished. In Bhatnager v.Canada (Minister of Employment and Immigration) (SCC), [1990] 2 S.C.R. 217 (at p. 228), Sopinka J. approved thefollowing statement by Hogg J.A. in Re Gordon MacKay & Co. and Dominion Rubber Co., (ON CA), [1946] 3 D.L.R.422 (Ont.

C.A.) at p. 425: The common law rights of the subject are not to be taken away or affected except only to such extent as may be necessary to giveeffect to the intention of Parliament when clearly expressed or when such result must follow by necessary implication, and if the rights ofpersons are encroached upon, this intention must be made manifest by the language of the statute, if not by express words then by clearimplication and beyond reasonable doubt. Similar statements were made by Rinfret J. for the Court in La Banque Canadienne Nationale v.

Carette, (SCC), [1931]S.C.R. 33 at p. 42 and by Dickson J. in R. v. Riddle, (SCC), [1980] 1 S.C.R. 380 at p. 390. [27] At common law, a patient injured due to the negligence of a physician may pursue an action in damages against the physician. See:Crits v. Sylvester, (1956), (ON CA), 1 D.L.R. (2nd) 502 (Ont. C.A.), affirmed (SCC), [1956] S.C.R.991; Toronto General Hospital v. Matthews, (SCC), [1972] S.C.R. 435; Hogan v. Bentinck West Hartley Collieries,[1949] 1 All E.R. 588 (U.K.H.L.). In Hogan, the House of Lords applied novus actus interveniens in the following manner (at p. 596):

I start from the proposition, which seems to me to be axiomatic, that if a surgeon, by lack of skill or failure in reasonable care, causesadditional injury or aggravates an existing injury and so renders himself liable in damages, the reasonable conclusion must be that hisintervention is a new cause and that the additional injury or the aggravation of the existing injury should be attributed to it and not to theoriginal accident. On the other hand, an operation prudently advised and skilfully and carefully carried out should not be treated as a newcause, whatever its consequences may be.... [28] In Mercer v.

Gray, (ON CA), [1941] 3 D.L.R. 564 (Ont. C.A.), the Court stated at p. 568: ... There may be cases where the medical or surgical treatment is so negligent as to be actionable. This would be in effect novus actusinterveniens and the plaintiff would have his remedy against the physician or surgeon.... [29] The respondents maintain that Allen M. Linden and Bruce Feldthusen in Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexisCanada, 2006) support immunity from any liability being extended to medical practitioners who negligently treat patients for injuriescaused by third parties.

They say that the AAIA fulfils that objective. I disagree. The writers go no further than to confirm that, atcommon law, the defendant will be held responsible for additional damages the plaintiff suffers, even if the treatment of the injurycaused by the defendant is unsuccessful due to an error by the physician, save where the negligence of the physician is actionable as anovus actus interveniens.

While the writers suggest it would be "rather harsh" to require an injured plaintiff to undertake a separateaction to recover his damages from a negligent physician, they do not suggest the plaintiff is or should be barred from pursuing an actiondirectly against the physician rather than incorporating his claim for medical malpractice as part of his claim for damages against thedefendant who caused the initial injury.

Moreover, where the plaintiff has no right to recover damages for pain and suffering and loss ofenjoyment of life, as is the case in this appeal, the plaintiff would be denied a remedy otherwise available at common law. That resultwould be inconsistent with the result sought by the learned writers. [30] Against this background, I turn to several factors identified in Rizzo and by Sullivan on the Construction of Statutes, supra. (

i) What is the meaning of the legislative text? [31] Decisions concerning compensation payable pursuant to a no-fault insurance scheme fall within three categories. The first involvescircumstances where the administrator of the no-fault scheme has denied coverage on the basis that an adequate causal link does not existbetween the plaintiff’s cause of action and a motor vehicle injury. See: Amos v. Insurance Corp. of British Columbia, (SCC), [1995] 3 S.C.R. 405 and Reavley v. Regina (City), 2000 SKQB 28, 190 Sask. R. 148, aff’d 2001 SKCA 49, 203 Sask.

R. 304. [32] The second category mainly involves actions against a non-motorist based on the non-motorist having negligently caused theinsured’s motor vehicle injury and related losses. See: McMillan v. Thompson (Rural Municipality), (MB CA),[1997] 3 W.W.R. 1 (Man. C.A.), where a bridge in disrepair was alleged to have caused or contributed to injuries the appellant sustainedin a motor vehicle accident; Wenzel v. Merlin Motors Inc., 2005 SKQB 506, 274 Sask.

R. 202, where it was alleged that injuriessustained in a motor vehicle accident were the result of a side airbag having failed to deploy during a motor vehicle accident; andSchmidt v. Arcand et al (1998), (SK KB), 174 Sask.

R. 307 (Q.B.) where, inter alia, the owners of a hotel bar werealleged to be liable for injuries the plaintiff suffered in a motor vehicle accident because they allowed the defendant driver to consumealcohol on their premises to the point his ability to drive a motor vehicle was impaired. [33] The third category consists of actions against a non-motorist who allegedly caused a new injury while treating the plaintiff for amotor vehicle injury and claimed immunity from liability pursuant to s. 40.1 or similar provisions reviewed in Hill, supra and Mitchell v.Rahman, 2002 MBCA 19, 209 D.L.R. (4th) 621.

Although the decision in Heredi v. Fensom, 2002 SCC 50 , [2002] 2 S.C.R.741 did not concern a no-fault insurance scheme, it is instructive to the extent it directly addresses the degree of connection requiredbetween a cause of action and the objective contemplated by a prohibitive or immunity clause.

[34] In Amos, supra, the Supreme Court considered whether an insured covered by a no-fault insurance scheme was entitled tocompensation for a gunshot injury he suffered while attempting to get away from a gang that intended to steal the vehicle he was driving. Although the claim was by an insured for coverage under the no-fault scheme, the decision is relevant to the extent the Court confirmedthat the following are to be considered in the

interpretation of legislation, including no-fault legislation: (

a) common law terms and concepts are presumed to retain their common law meaning unless the legislation provides analternative definition or is intended to modify an existing judicial

interpretation of a phrase, term or word; (

b) the no-fault character of an insurance scheme does not change the the manner in which the scheme is to be interpreted; (

c) some nexus or causal relationship, but not necessarily a direct or proximate causal relationship, is required between the injury onwhich the insured’s claim is based and the motor vehicle accident, which has not been broken by an intervening act independent of theoperation of a motor vehicle; (

d) the words “arising out of” have a broader meaning than “caused by,” but still involve a causal relationship between the injury onwhich the insured’s claim is based and the motor vehicle accident covered by a no-fault insurance scheme; and, (

e) the contra proferentem rule, pursuant to which coverage under insurance policies is to be broadly interpreted in favour of theinsured and exclusions strictly and narrowly against the insured, equally applies to no-fault insurance schemes. [35] In Heredi, supra, the Supreme Court applied a substantive approach in the

interpretation of what constitutes damages “occasionedby a motor vehicle” for the purpose of the limitation of actions provision in s. 88 of The Highway Traffic Act, S.S. 1986, c. H-3.1 (nowrepealed).

Section 88 provided: 88(1) No action may be brought against a person for the recovery of damages occasioned by a motor vehicle after: (

a) the expiration of 12 months from the time when the damages were sustained; ... Justice Iacobucci articulated the approach to be taken when interpreting the scope of such provisions at paras. 31-35: [31] In my view, it is time for this Court to depart from the sharp distinction that has, in the opinion of some courts, been created bythe effect of Heppel [ (SCC), [1968] S.C.R. 707] and Bruell [ (SCC), [1976 1 S.C.R. 9] between casesframed in contract and cases framed in tort. The legislation aims to have a reasonably wide effect and does not distinguish between thesedivergent forms of action.

It says, simply, "[n]o action may be brought against a person for the recovery of damages occasioned by amotor vehicle" after the expiry of the limitation period. [32] At the same time, I would depart from the view expressed most forcefully in Heppel that, "[i]f a motor vehicle is the occasion forthe damage, i.e., if it is the vehicle which brings it about, then the limitation period applies" (p. 710).

In so far as this has been taken tobe the core of the Heppel decision, that the presence of a motor vehicle in the chain of causation leading to damages for which the actionis brought is sufficient to invoke the limitation, I think it must be said that Heppel should no longer be considered the law. [33] To deal with this issue, we must instead recognize the difficulty of setting out ironclad rules in the

interpretation of this type ofprovision. The true intent of the legislature has often been left to the side in the debate over the phrase here in issue. The followingcomments made by the Court of Appeal in Heppel, and cited approvingly at p. 712 by the dissenting judge in this Court, remain relevant,in my opinion: The Highway Traffic Act regulates the use and operation of motor vehicles and I think that the scope of s. 147(1) consistently withits setting in the Act, is limited to cases in which damage is occasioned as the result of the use or operation of a motor car....

While I do not wish to simply substitute a new test of whether the damage has been caused by the "use or operation" of a motor vehicle, Iagree that the scope of the Highway Traffic Act must be kept in mind. The Act does not mean to regulate every aspect of contractual anddelictual liability. It means to regulate highway traffic.

While there may be instances in which a motor vehicle might be the central playerin the causation of damages while not engaged in travelling on a highway, these instances will be somewhat rare. [34] Thus, in order to determine whether an action is for "damages occasioned by a motor vehicle", and thus subject to the HighwayTraffic Act limitation period, a substantive approach ought to be taken. The nature of the facts and the nature of the action ought to beconsidered together in order to make a determination as to the fundamental nature of the action.

Are the damages sought to be recoveredin the action, in their essence, damages that were occasioned by a motor vehicle? In light of the way in which the action is framed, andthe facts giving rise to the damages claimed, is the action one that could be primarily classified as an action for damages occasioned by amotor vehicle?

If the role of the motor vehicle in the causal chain is too insignificant, as in Argue [ (SCC), [1969] S.C.R.354], or if the causal chain is itself not the most illuminative way to characterize the claim, as in Bruell or as in Clost [(1985), (ON SC), 52 O.R. (2d) 339], the action ought not be regarded as subject to the limitation.

If, on the other hand, thedominant feature of the damages is their relation to a motor vehicle accident, the limitation period ought to be applied. [35] In other words, the true intent of the statute is that "damages occasioned by a motor vehicle" requires that the presence of a motorvehicle be the dominant feature, or constitute the true nature, of the claim.

Conversely, claims, whether framed in contract or in tort,where the presence of a motor vehicle is a fact ancillary to the essence of the action, ought not be regarded as within the scope of thatphrase. [First emphasis in original; second and third emphasis added.] [36] It follows from Heredi that limitation provisions similar to those embodied in s. 40.1 are not to be interpreted as applying to an

action for damages merely because the cause of action on which it is founded, in some limited manner, is linked to or arises from a motor vehicle accident. Thus, it reasonably follows that s. 40.1 is intended to apply only where a meaningful causal link exists between the motor vehicle accident and the injury on which the insured’s claim is based. [ 37 ] In Hill , supra , the plaintiff sought to recover damages from a physiotherapist who, while treating a bodily injury the plaintiff insured suffered in a motor vehicle accident, negligently caused an additional injury.

The defendant therapist applied under Rule 173 of The Queen’s Bench Rules for an order striking the action against him on the basis that it was prohibited by s. 40.1 of the AAIA .

Although the plaintiff never conceded that a meaningful link existed between the injury on which his claim is based and the motor vehicle accident, the learned Chambers judge struck the plaintiff's action for the reasons he gave at paras. 45-50: [45] Based on a review of relevant case authorities, the term "arising out of" should be read as "taken or derived from", "originating from", "having origin in", "growing out of", "flowing from", or in short, "incident to" or "having connection with" bodily injuries caused by a motor vehicle arising out of an accident. [46] With the above

interpretation of "arising out of" in mind, it is necessary to look at the "chain of causation" to determine whether the plaintiff's injuries arose out of or stemmed from bodily injuries caused by a motor vehicle accident. [47] The plaintiff was originally injured in a motor vehicle accident on January 20, 2007. As a result of these injuries, and alleged medical negligence of the physiotherapy centres involved, the plaintiff brought this action.

Similar to the plaintiff in Kovach, supra , it appears that if the plaintiff had not been injured in the motor vehicle accident she would not have been treated by the defendants. This appears to provide a causal link connecting the motor vehicle accident related injury to the negligence alleged against the defendants. [Emphasis added.] [48] Furthermore, as discussed in Lindsay, supra , the physiotherapy was "intended to supply information as to what further could be done to improve" the injury caused by the motor vehicle accident (para. 18).

It is this link that allows us to conclude that the injuries alleged in this action "arose out of the accident". The action against the defendants is statute barred by s. 40.1 of the Act . [49] In addition, this analysis would withstand an argument by the plaintiff that the injuries were aggravated by the medical treatment provided by the defendants. In Lindsay, supra , the plaintiff was injured at work and suffered further injury when Dr. Ofiesh accidentally severed one or more of the plaintiff's nerves.

Still in this case, the action was statute barred as the injury occurred in the course of employment. [50] All in all, the plaintiff's action alleging negligence in regards to treatment undertaken due to an injury "caused by a motor vehicle arising out of an accident" is barred by s. 40.1 of The Automobile Accident Insurance Act . [ 38 ] The Chambers judge in Hill appears to have concluded that any causal link between the injury on which the insured’s claim was based and a motor vehicle accident is sufficient to invoke the s. 40.1 prohibition.

He further assumed that causation, for the purposes of the workers’ compensation legislation reviewed in Kovach v. British Columbia (Workers’ Compensation Board) , 2000 SCC 3 , [2000] 1 S.C.R. 55 and Lindsay v. Saskatchewan (Workers’ Compensation Board) , 2000 SCC 4 , [2000] 1 S.C.R. 59 also applies to no-fault motor vehicle insurance legislation notwithstanding that “causation” for the purposes of workers’ compensation legislation is markedly unique.

That uniqueness is discussed later. [ 39 ] In Mitchell , supra , the Manitoba Court of Appeal considered whether s. 72 of the Manitoba Public Insurance Corporation Act , R.S.M. 1987, c. P215, barred a claim strikingly similar to the one considered in Hill , supra . In Mitchell , the plaintiff commenced an action against several physicians wherein he alleged they were negligent in failing to correctly diagnose and treat an injury he suffered in a motor vehicle accident.

The defendants unsuccessfully attempted to obtain an order striking the plaintiff’s action on the basis that it was barred by s. 72 which states: 72. Notwithstanding the provisions of any other Act , compensation under this Part stands in lieu of all rights and remedies arising out of bodily injuries to which this Part applies and no action in that respect may be admitted before any court. [ 40 ] The Manitoba Court of Appeal concluded that

Part 2 of the Manitoba no-fault insurance scheme (which includes s. 72) did not bar the plaintiff's action for the reasons delivered by Philp J.A.: [51] The motions judge took into account "the proximity [of the alleged medical negligence] in time to the accident" (at para. 40). He reasoned that a "negligent omission can be a 'judicial cause' but it is not a physical cause in the sense of changing the natural course of events" (at para. 41). With respect, that reasoning is flawed and appears to be based on a finding of fact that was not open to the motions judge to make.

The plaintiff alleges, and it is assumed to be true or capable of proof at trial for the purpose of this rule 21.01 proceeding, that the "permanent right shoulder impairment and disability that [the plaintiff] suffers were as a result of the negligence of the defendants." The aggravation of an injury that results in a permanent impairment and disability by a separate and independent tort may well change the natural course of events whether medical mistreatment is provided shortly after an accident or weeks or months later. [52] In Amos v.

Insurance Corp. of British Columbia , Major J. observed that, "[g]enerally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage" (at para. 26). In this case, we do not know whether the use of an automobile contributed or added to the plaintiff's permanent right shoulder impairment and disability — the injury that is the subject-matter of his claim.

[53] My analysis of the application of the purpose test leads me inexorably to the conclusion that the plaintiff's claim against thedefendants for injuries resulting from alleged medical mistreatment were not "caused by ... the use of an automobile" so as to be barredfrom suit by

Part 2 of the Act. [41] The respondents maintain Mitchell, supra is distinguishable because the prohibition in s. 40.1 is far broader than the prohibitionprescribed by s. 72 of the Manitoba Public Insurance Corporation Act, and is intended to prohibit any action available at common law ifa causal link, no matter how limited, exists between the injury on which the insured’s claim is based and a motor vehicle accident.

Insupport of their argument, they rely on Kovach, Lindsay and Hill, supra. [42] While I agree the language used in s. 40.1 is broader in scope than s. 72 of the Manitoba Public Insurance Corporation Act, theterm “arising out of or stemming from” is similar to the provision reviewed in Amos, supra. Therefore, the causal link provisions outlinedin Amos are of particular relevance to the

interpretation of s. 40.1. That said, I turn to Kovach and Lindsay. [43] I am satisfied that neither the ratio in Kovach nor in Lindsay applies to s. 40.1. The purpose of workers’ compensation legislation isthreefold: first, to provide a worker injured in a workplace accident with specific benefits, without having to establish negligence by anemployer; second, to limit the liability of employers and eliminate the cost of determining culpability; and, third, to ensure funds areavailable to pay benefits to injured workers by means of employers’ contributions to the compensation fund.

Employers who do notcontribute to the workers’ compensation fund are not entitled to benefits or protection under workers’ compensation schemes. [44] In Kovach, supra, the Supreme Court confirmed that s. 10 of the Workers’ Compensation Act, R.S.B.C. 1979, c. 437 prohibited aplaintiff worker from bringing an action against the physicians who negligently treated a back injury he sustained at work because thedefendants were either employers or workers within the meaning of that legislation.

It specifically approved the reasons given by DonaldJ.A. of the British Columbia Court of Appeal, in his dissent, where he said: [34] The truly vexing aspect of this case is that a doctor secures immunity from action through participation in the scheme as anemployer or worker. We are not accustomed to such a result. But as anomalous as it may seem, the choice of including professionals inthe scheme was made by the legislature, and the structure of the scheme must not be altered to defeat the immunity.

The plaintiff mustforgo the prospect of a large tort judgment for the prompt and certain payment of compensation without having to prove fault. The trade-off may seem disadvantageous in the circumstances involving a doctor but it is highly advantageous in the vast majority of claims.[Kovach v.

British Columbia (Workers’ Compensation Board, (BC CA), [1999] 1 W.W.R. 498 (C.A.)]. [45] Section 10(1) of the British Columbia Workers Compensation legislation provides: 10(1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of careor any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied,to which a worker, dependant or member of the family of the worker is or may be entitled against the employer of the worker, or againstany employer within the scope of this Part, or against any worker, in respect of any personal injury, disablement or death arising out ofand in the course of employment and no action in respect of it lies.

This provision applies only when the action or conduct of theemployer, the employer's servant or agent, or the worker, which caused the breach of duty arose out of and in the course of employmentwithin the scope of this Part. (Emphasis added) [46] In Kovach, the majority of the Court of Appeal held the Compensation Board was not entitled to bar the plaintiff’s claim becausethe injury sued on was not the same as the injury for which compensation had been extended.

Justice Donald expressed a different viewat para. 28: [28] The Board was not bound to apply common law principles of causation, such as novus actus interveniens, in deciding the matter[of jurisdiction]. No single theory of causation can be said to be infallible or universally applicable. What works for a tort based systemmay be unsuitable for a no fault scheme. It all depends on the policy goals of the system. The Board may decide that in order toencourage workers to undergo treatment for their industrial injuries, it must cover mistakes made during treatment.

It may decide that itis unfair to deny coverage in some circumstances or inconsistent with a broadly inclusive policy of worker protection. [47] The decision in Kovach is of little assistance in the

interpretation of s. 40.1 for several reasons. First and foremost, the SupremeCourt confirmed that while the common law principles of causation apply to no-fault insurance schemes (see: Amos, supra), workers’compensation boards are not bound to apply the principles of causation. Second, as previously noted, the physicians in Kovach wereeither workers or employers, while the respondents are not insureds under the no-fault scheme or bound by its provisions. Third, there isno evidence in this case of SGI having agreed to provide benefits to the appellant for the additional injuries resulting from therespondents’ alleged negligence.

[48] In Lindsay v. Saskatchewan (Workers’ Compensation Board), (SK KB), [1998] 4 W.W.R. 436 (Sask. Q.B.),the Chambers judge held that the Workers’ Compensation Board acted within its jurisdiction when it barred the worker's action fordamages against a physician for injuries suffered as a consequence of the physician's negligent treatment of a workplace injury. However, it is of note that The Workers Compensation Act, 1979, S.S. 1979, c.

W-17.1 does not prohibit a worker, injured while atwork, from pursuing an action for damages against the tortfeasor who caused the injury, if the tortfeasor is not a worker or employercovered thereby. [49] I now return to question “A”. Based on Amos, Rizzo, Heredi and Mitchell, supra, I am satisfied that s. 40.1 only prohibits aninsured from pursuing a claim based on an injury if a meaningful causal link exists between the injury and the motor vehicle accident towhich no-fault coverage provisions of the AAIA apply. What constitutes a meaningful causal link is addressed as part of question “B”.

That said, I turn to the next factor applicable to the

interpretation of a statute. (ii) What law did the Legislature intend to adopt and what purpose did it intend to achieve by way of s. 40.1? [50] The declared and otherwise obvious intention of the 1994 Amendment was to implement a no-fault insurance scheme to provide aperson injured in a motor vehicle accident with immediate access to a broad range of benefits without regard to who was at fault, andthereby avoid costly court proceedings associated with proving causation or establishing the level of compensation to which the injuredinsured or third party is entitled.

These objectives are accomplished by the payment of compensatory benefits out of the no-faultinsurance fund to the injured insured and others entitled to benefits under the AAIA. [51] The broad immunity for non-motorists proposed by the respondents would radically limit the rights of a citizen at common law andchange the essential character of the insurance scheme embodied in the no-fault provisions of the AAIA. Non-motorists would berelieved from any liability for faulty products and negligent services they provide for treating an injury the insured suffered in a motorvehicle collision.

This would shift the burden of paying for losses caused by negligent non-motorists to the owners and drivers of motorvehicles who contribute to the AAIA insurance fund, or leave the insured without a remedy. Jeffrey O’Connell and Craig Brown aptlydescribed this issue in “Non-Motorists Defendants — No-Fault Insurance Schemes: McMillan v. Thompson” (1999) 78 Can. Bar Rev.255.

In my view, the Legislature never intended to grant non-motorists immunity in circumstances similar to those before the Court. (iii) Does the meaning ascribed to s. 40.1 give rise to reasonable results? [52] As previously mentioned, medical practitioners who skillfully treat an injured insured are not exposed to liability at common law iftheir treatment results in the insured suffering an additional injury or complication. Thus, no obvious need exists for s. 40.1 to vest themwith absolute immunity.

Furthermore, if a medical practitioner, due to a lack of skill or reasonable care, causes the insured to suffer anew injury or unwarranted complication, no obvious benefit to the no-fault insurance scheme is evident in the AAIA or the statements bythe Minister in charge thereof, which would warrant s. 40.1 granting negligent medical practitioners immunity from liability for lossesarising out of their lack of skill or failure to provide reasonable care for an insured.

While establishing the liability of the medicalpractitioner may involve the insured incurring legal costs, the decision to incur the same is reserved to the insured. Nor is there anyapparent reason why a no-fault scheme should be concerned with the costs incurred by a medical practitioner where her or his negligenceconstitutes a novus actus interveniens. [53] In

summary, the

interpretation of s. 40.1 posited by the respondents is unreasonable to the extent it absolves non-motorists ofresponsibility for their negligent acts, including medical practitioners when their negligence constitutes a novus actus interveniens. Moreover, the proposed

interpretation is inconsistent with the substantive purpose of the AAIA discussed earlier. B. If the answer to question “A” is “no”, what causal linkage is required between the injury on which the appellant’s claim isbased and the motor vehicle accident before s. 40.1 will apply? [54] As previously stated, a plaintiff is entitled to launch an action based on the cause of action known at common law unless thefundamental right to do so has been abrogated by a statutory limitation, such as the prohibition prescribed in s. 40.1 of the AAIA.

Itfollows that the party who seeks to strike an action based on the s. 40.1 prohibition—usually the defendant—bears the burden ofestablishing a causal link between the motor vehicle accident and the injury on which the plaintiff’s claim is based. While the words"respecting, arising out of or stemming from" may relieve a party relying on s. 40.1 from having to establish that the motor vehicleaccident and resulting injuries are the proximate cause on which the plaintiff's action is based, that party still must establish a meaningfulcausal link, unbroken by a novus actus interveniens.

The mere fact that the motor vehicle accident is the causa sine qua non giving riseto the bodily injury on which the plaintiff's action is based (sometimes referred to as the “but for” principle) does not meet the requisitecausal connection threshold. See Amos, supra at paras. 19-21. [55] In this case, the respondents attempted to establish a meaningful causal link between the motor vehicle accident and the appellant’sinjury claim based on the facts pled in the statement of claim and the agreed statement of facts filed with this Court. These documentsonly confirm that: (

i) the appellant suffered a bodily injury in a motor vehicle accident; (ii) the respondents treated his motor vehicle

injury; (iii) the appellant alleges he suffered the new injury solely due to the respondents’ negligence; and (iv) SGI has denied the appellant insurance benefits of an unspecified nature. For the purposes of this appeal, these facts must be presumed to be true.

Based on this very limited evidence, the Chambers judge was asked to determine whether an unbroken causal link existed between the new bodily injury and the motor vehicle accident sufficient to invoke the s. 40.1 prohibition and warrant the plaintiff's action being struck. [ 56 ] As noted earlier, the Chambers judge felt bound to apply Hill , supra , and therefore based his decision on whether a causal link, however limited, existed between the injury on which the appellant’s claim was based and the motor vehicle accident. He never considered whether a meaningful causal link existed between the two events.

In so doing, the Chambers judge erred in law by striking the appellant’s action. Thus, consideration need be given to question “C”. C. Are the facts before the Court sufficient to support a finding that the required causal link exists between the motor vehicle accident and the injury on which the appellant’s action is based? [ 57 ] The facts are those pled in the statement of claim, previously outlined, and agreed on in the agreed statement of facts. In my view, these facts are insufficient to establish a meaningful causal link.

At best, they establish that the motor vehicle accident was a causa sine qua non for the new injury suffered by the appellant. Furthermore, the appellant’s statement that his new injury was attributable solely to the respondent’s negligence must be accepted, in the absence of any material evidence to the contrary, that a meaningful causal link, if any, between the motor vehicle accident and the injury on which the claim was based, was broken by the intervening negligent conduct of the respondents.

Consequently, I am well satisfied that a meaningful causal link between the motor vehicle accident and the new injury has not been proven. [ 58 ] Moreover , the

interpretation of s. 40.1 advanced by the respondents contemplates the extinguishment of a fundamental right at common law: the right to pursue a claim before a court for damages suffered as result of another person’s negligence. It is well established that such historic rights at common law are not to be materially encroached on unless the Legislature has expressed a clear intention to do so in the statute affecting such rights, or it is clear beyond reasonable doubt that the Legislature intended to do so. See: Gordon MacKay & Co., supra.

The imprecise language of s. 40.1 falls far short of meeting either requirement. Thus, I am also satisfied that s. 40.1 does not prohibit the appellant from bringing an action based on a common law cause of action that meets the requirements of Hogan and Mercer, supra . VIII. CONCLUSION [ 59 ] I would grant the appeal on two grounds. First, the prohibition embodied in s. 40.1 is intended to apply only where a meaningful causal link exists between the motor vehicle accident and the injury on which the appellant’s claim is found, and none exists in the instant case.

Second, s. 40.1 does not extinguish the appellant’s right to bring an action to recover damages from the respondents based on their negligence being a novus actus interveniens . Thus, I would set aside the order striking the appellant’s action and give him his taxable costs for the application below and for this appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of November, A.D. 2010. ___ “Klebuc C.J.S.” ____________________ Klebuc C.J.S. I concur __ “Cameron J.A.” _____________________ Cameron J.A.

I concur __ “Richards J.A.” _____________________ Richards J.A.