ROBYN BEITEL PLAINTIFF - v. -, 2018 SKQB 328

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 328 Date: 2018 11 27 Docket: QBG 185 of 2011 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: ROBYN BEITEL PLAINTIFF - and - TARA HILKEWICH & PROFESSIONAL SPORT REHABILITATION CORPORATION DEFENDANTS Counsel: Denis I. Quon for the plaintiff Ronald L. Miller, Q.C. for Tara Hilkewich Kimberly D. Visram for Professional Sport Rehabilitation Corporation ___________________________________________________________________________ JUDGMENT ROTHERY J.

November 27, 2018 ___________________________________________________________________________ [ 1 ] The plaintiff, Robyn Beitel [Beitel], sues Tara Hilkewich [Hilkewich] for negligence and damages she has suffered resulting from some exercises she completed under Hilkewich’s direction as her personal trainer. Beitel alleges that Professional

Sport Rehabilitation Corporation [Pro Sport] is vicariously liable for Hilkewich’s actions and Beitel’s resulting injuries. [ 2 ] Counsel for all three parties provided a draft consent order to the court, and on November 27, 2017, the court ordered a trial of the two following issues: a. Is the Defendant, Professional Sport Rehabilitation Corporation, vicariously liable for the actions of the Defendant, Tara Hilkewich?; and b.

Is the Plaintiff’s claim barred by s. 5 of The Limitations Act , S.S. 2004, c L-16.1? [ 3 ] As permitted by the order, Hilkewich and Pro Sport presented evidence by affidavit and were cross-examined at the trial. Beitel gave viva voce evidence at the trial. BACKGROUND [ 4 ] Beitel testified that she first contacted Hilkewich through a mutual friend as she was looking for a personal trainer. Sometime in January of 2009, Beitel and Hilkewich met at a Starbucks café in Saskatoon.

Beitel gave Hilkewich an extensive history of the problems that she had over the years with her back, the accident she had, and the specialized chiropractic care she had been receiving over the past six months. Beitel explained to Hilkewich that she wanted to gain muscle strength to return to work, and that her chiropractor recommended that she would benefit from some personal training. [ 5 ] Beitel and Hilkewich discussed the cost of the personal training at their meeting at Starbucks.

Beitel could purchase a package of ten sessions at $50 per session, for a total of $500, payable in advance. [ 6 ] Beitel met Hilkewich in the gym of Pro Sport for her first session on January 29, 2009. Pro Sport is a fitness facility on Millar Avenue in Saskatoon. It provides a multidisciplinary rehabilitation clinic. Prior to her session with Hilkewich in the gym, Beitel signed three documents bearing Pro Sport’s logo. One was a “Gym Entrance Information Form” where Beitel completed her personal information and emergency contact.

Another was entitled “Par-Q & You”, which was a questionnaire for persons planning to become more physically active, to determine whether the person needed to consult with a doctor before commencing the physical activity. The third document was entitled “Informed Consent Agreement” which limited Pro Sport’s liability from any activity carried on at its facility. [ 7 ] Beitel’s first session of personal training on January 29, 2009 consisted of walking for 10 to 15 minutes on the treadmill.

She cannot recall any other activities she did, but she felt no discomfort either during or after the session. [ 8 ] Beitel arranged for the second session with Hilkewich, but is not certain whether it took place at the Pro Sport gym on February 3 or February 9 of 2009. The Statement of Claim alleges it was February 3, 2009. The cancelled cheque for $500 that Beitel wrote to Hilkewich for the ten sessions is dated February 3, 2009. The correspondence from Saskatchewan Health outlining its subrogated claim to her counsel refers to an injury of February 3, 2009. However, a medical report that her chiropractor, Dr.

Janice Noji, provided to the Employee Benefits Division of Saskatchewan Association of Health Organizations dated February 17, 2010, when Beitel was applying for disability income, states that Beitel “hurt her ribs severely due to work with a personal trainer Feb. 9, 2009.” [ 9 ] Beitel is not certain on which date the second session took place. Hilkewich cannot say, other than to provide evidence that she left Canada on February 10, 2009 and did not return for at least one week.

Corey Young, the director and proper officer of Pro Sport, cannot say because the sign-in sheets for that time frame no longer exist. [ 10 ] Given that Beitel could not reach Hilkewich on her cell phone the next day, I accept that the date of the second session was February 9, 2009. Hilkewich telephoned Beitel back about one and one half weeks later.

Hilkewich testified that when she was away, she was out of cell phone coverage and did not get the voice mail messages until her return to Canada. [ 11 ] Little turns on the exact date of the second session, other than both dates are outside the time period of two years prior to issuance of the Statement of Claim. [ 12 ] Beitel testified that she wanted to talk to Hilkewich because the evening after the second session, once she had gone home and relaxed, she started to have pain and spasms of the middle and upper regions of her back. [ 13 ] Beitel explained that the activities in the second session started with riding a stationary bike for 15 to 20 minutes.

Then, Hilkewich gave her a large ball with some granular particles in it. Hilkewich directed Beitel to move the ball in various directions. She was tired after the second session, but she felt no discomfort during the session. The pain commenced that same evening. [ 14 ] When Hilkewich finally telephoned Beitel upon her return to Canada, Beitel testified that she asked Hilkewich her opinion as to whether to continue the personal training.

Beitel testified that Hilkewich was remorseful that Beitel was in so much pain, but that Hilkewich’s skill set was not right to work with Beitel, and she would speak to Corey Young and Blaine Whyte from Pro Sport about it. Hilkewich said she would return the remainder of the deposit for her services. Beitel received $400 cash from the same mutual friend. PRO SPORT’S VICARIOUS LIABILITY [ 15 ] The only basis for Pro Sport’s vicarious liability of Hilkewich’s actions is if Hilkewich was an employee of Pro Sport when she provided the second session of personal training to Beitel.

Beitel’s counsel submits that the factors enunciated in 671122 Ontario Ltd. v Sagaz Industries Canada Inc. , 2001 SCC 59 , [2001] 2 SCR 983 [ Sagaz ] , lead to the conclusion that Hilkewich was an employee. At paras. 47-48 of Sagaz , Major J. stated: 47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with

MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra [[1968] 3 All ER 732].The central question is whether the person who has been engaged to perform the services is performing them as a person in business onhis own account.

In making this determination, the level of control the employer has over the worker’s activities will always be a factor.However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or herown helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by theworker, and the worker’s opportunity for profit in the performance of his or her tasks. 48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application.

Therelative weight of each will depend on the particular facts and circumstances of the case. [16] The Supreme Court of Canada also explained the policy considerations for justifying vicarious liability, andthey bear repeating here.

At para. 35 of Sagaz, Major J. stated: 35 Explained another way, the main policy concerns justifying vicarious liability are to provide a just and practical remedy for theplaintiff's harm and to encourage the deterrence of future harm (Bazley, supra, at para. 29 [ (SCC), [1999] 2 SCR 534]).Vicarious liability is fair in principle because the hazards of the business should be borne by the business itself; thus, it does not makesense to anchor liability on an employer for acts of an independent contractor, someone who was in business on his or her own account.In addition, the employer does not have the same control over an independent contractor as over an employee to reduce accidents andintentional wrongs by efficient organization and supervision.

Each of these policy justifications is relevant to the ability of the employerto control the activities of the employee, justifications which are generally deficient or missing in the case of an independent contractor.As discussed above, the policy justifications for imposing vicarious liability are relevant where the employer is able to control theactivities of the employee but may be deficient in the case of an independent contractor over whom the employer has little control.However, control is not the only factor to consider in determining if a worker is an employee or an independent contractor.

For thereasons discussed below, reliance on control alone can be misleading, and there are other relevant factors which should be considered inmaking this determination. [17] Beitel’s counsel submits that the three documents completed by Beitel the first time she arrived at the gym tohave her first session on January 29, 2009, are persuasive that Hilkewich was an employee of Pro Sport at the relevant times. However,the explanation provided by Pro Sport’s proper officer leads one to the opposite conclusion.

Corey Young explained that all persons whoattend Pro Sport’s facility must sign these documents before commencing any activity in its facility. The documents are intended toprotect Pro Sport against liability. As well, all persons attending the facility must sign the sign-in sheet once they arrive at the receptiondesk.

Those persons that were attending the gym to work with a personal trainer were required to sign in under the name of the specificpersonal trainer that the person was working with. [18] Granted, two of the factors listed in paragraph 47 of Sagaz militate against Hilkewich being an independentcontractor. That is, Hilkewich did not provide her own equipment. She did not hire her own helpers. But, she did not need to hire anyhelpers; she worked alone. [19] Oppositely, Hilkewich took all the financial risk for her enterprise. She charged her client and obtained paymentfrom her client.

Pro Sport received no remuneration from the client. It only got paid a pre-set amount for each time that Hilkewichbrought someone to the gym for a personal training session. [20] Hilkewich had no investment in Pro Sport. She held no position of management over anyone. She did not evenhave an office in the facility. Hilkewich’s only opportunity for profit was the personal training sessions which she conducted at ProSport. [21] The level of control that Pro Sport had over Hilkewich is a crucial factor. It had none. Hilkewich met her clientsat places other than Pro Sport.

Personal training could take place at Pro Sport or at the client’s home, or even outdoors. There was noobligation for Hilkewich to use Pro Sport’s gym, but if she did, she was required to pay Pro Sport a fee for each session. [22] Furthermore, there was no employment contract between Hilkewich and Pro Sport. Oppositely, they had an oralagreement allowing Hilkewich to use the gym in exchange for a fee. Hilkewich did not even have to notify Pro Sport in advance whenshe was planning to use its gym. [23] Hilkewich located her own clients; Pro Sport did not locate them.

Hilkewich made all her own appointments;clients could not arrange them through Pro Sport. Hilkewich was not even permitted by Pro Sport to take on clients on its own behalf. [24] Pro Sport did not provide instructions to Hilkewich as to how to train her clients. Hilkewich decided herselfwhat to charge clients and they paid her personally. [25] The only conclusion that can be reached on these facts is Hilkewich performed her services on her own account.Hilkewich was an independent contractor in her dealings with Beitel. That being so, Pro Sport is not vicariously liable for Hilkewich’sactions.

The Statement of Claim is hereby dismissed against Pro Sport. WHETHER BEITEL’S CLAIM IS STATUTE-BARRED [26] Beitel’s counsel concedes that the Statement of Claim was not issued until February 11, 2011, but submits that,pursuant to the discoverability principles, Beitel only had a suspicion of her injuries the evening of her second session, on February 9,2009. It was not until Beitel had the first telephone conversation with Hilkewich upon her return to Canada on, at the earliest, February17, 2009, that she discovered her injury.

Thus, counsel argues that her claim is not barred by s. 5 of The Limitations Act, SS 2004, c L-16.1 [Act]. [27] The legislative framework for finding the facts in this case is set out in s. 5 and s. 6 of the Act:

5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day onwhich the claim is discovered. 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant firstknew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of theclaim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission onwhich the claim is based took place, unless the contrary is proved. [28] As recently outlined in Jardine v Saskatoon Police Service, 2017 SKQB 217, determining when a plaintiff hasdiscovered the claim must be analyzed in accordance with the principles as stated in paras. 36-37: 36 In this case, the key legal issue is this: when does a prospective plaintiff know enough to have discovered the claim?

Theseprovisions have been described as a codification of the common law discoverability principles settled by Central Trust Co. v Rafuse, (SCC), [1986] 2 SCR 147 [Rafuse] and Kamloops (City) v Nielsen, (SCC), [1984] 2 SCR 2: see Big SkyFarm Inc. (Re), 2010 SKQB 255 at paras 44-45, 360 Sask R 76 [Big Sky]; Fehr v Sun Life Assurance Co. of Canada, 2015 ONSC 6931at para 378; and Galota v Festival Hall Developments Ltd., 2016 ONCA 585 at para 15 [Galota]. In particular, courts have held that ss.6(1)(a)-(

c) reflect the oft-cited statement of the common law rule by Le Dain J. in Rafuse, at 151: ...a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought tohave been discovered by the plaintiff by the exercise of reasonable diligence... 37 This statement was adopted, for example, in Big Sky at paras 44-45; Chatfield v Bell Mobility Inc., 2016 SKQB 364 at paras 36-37;and Lawless v Anderson, 2011 ONCA 102 at para 22 [Lawless].

As Rouleau J.A. put the matter in Lawless: 23 Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospectiveplaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim hasbeen “discovered”, and the limitation begins to run: see Soper v. Southcott (1998), (ON CA), 39 O.R. (3d) 737 (C.A.)and McSween v.

Louis (2000), (ON CA), 132 O.A.C. 304 (C.A.). [29] And, as clarified by the Saskatchewan Court of Appeal in Langenburg (Town) v Gamey, 2010 SKCA 11 at paras33-34, [2010] 8 WWR 273, the plaintiff bears the burden of proving when the cause of action was discoverable. 33 The Supreme Court of Canada in Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549 confirmed the discoverabilityprinciple applies to the

interpretation of limitation statutes, unless otherwise specifically provided. See also Fehr v. Jacob, (MB CA), [1993] 5 W.W.R. 1 (Man. C.A.). 34 It also is well established that where a plaintiff fails to serve his statement of claim on a defendant within the time specified in alimitation of actions provision and the defendant relies on the limitation period as part of its defence, the plaintiff bears the burden ofproving his cause of action was not discoverable within the limitation period by the exercise of due diligence. The nature of theplaintiff’s burden is aptly articulated in Authorson v.

Canada (Attorney General), 2007 ONCA 501, 283 D.L.R. (4th) 341 (leave toappeal to S.C.C. refused, [2007] S.C.C.A. No. 472, [2008] 1 S.C.R. v). The Court wrote at para. 137: [137] In general, those who assert a proposition have the burden of establishing it and, in the context of the discoverability principle, theplaintiff bears the burden of demonstrating that the cause of action was not discoverable: Mikisew Cree First Nation v. Canada, 2002ABCA 110 , [2002] A.J. No. 596 (QL) (C.A.) at 83.

We are not aware of any authority for the proposition that the onus isreversed where the discoverability issue arises within the framework of a fiduciary relationship. ... While it may make sense to be attunedto the level of proof that the plaintiff needs to put forward, depending on the circumstances, to meet the burden of discoverability,reversing the onus of proof is not justified.

On an issue like discoverability (what did the plaintiff know about the claim, and when, andwhat steps did the plaintiff take to pursue it) it would be at best difficult for the party who is the target of the reverse onus to establishthese factors, and at worst unlikely that the party could do so .... Also see Desormeau v. Prince Albert Holy Family Hospital, (SK CA), [1989] 5 W.W.R. 186 (Sask. C.A); UnitedEnterprises Ltd. v. City of North Battleford, 2007 SKQB 335, 301 Sask.R. 134; and Malcolm v.

Kushniruk, 2005 YKSC 51 at paras. 8-9. (emphasis added) [30] Beitel testified in examination-in-chief that she had no discomfort during the personal training session onFebruary 9, 2009, although she was tired. It was that evening, after she had gone home and her body started to relax, that she experiencedpain and a spasm of the middle and upper region of her back. The spasms continued the next day and over the following days. Beiteltelephoned Hilkewich because she wanted Hilkewich’s opinion because of the continuing spasms.

It was not until Hilkewich returned toCanada, no sooner than February 17, 2009, that Beitel had an opportunity to discuss the situation of her spasms with Hilkewich. Beiteltestified that having a personal trainer was a new experience. She was not sure if anything had gone wrong at the second session. [31] Beitel testified in chief that her telephone conversation with Hilkewich comprised of her telling Hilkewich how

she was feeling. Hilkewich responded that she felt personal training was not appropriate for Beitel and that Beitel should look at different skill sets. Beitel testified that Hilkewich said she would contact Corey Young or Blaine Whyte from Pro Sport to assess the situation and then get back to Beitel. Beitel said Hilkewich telephoned her back a couple days later.

Hilkewich arranged to return the $400 remaining in unused sessions and arranged for Beitel to see Blaine Whyte for treatment, which Beitel did. [ 32 ] On cross-examination by Pro Sport’s counsel, Beitel conceded that she had admitted in her Questioning that the pain she experienced the evening after the second session was severe, and the pain was “an 8 on a scale of 10.” The pain was located in the middle back and right upper back. She had not experienced pain in that location before.

In the past, the only pain to that extent was to the left side of her back. [ 33 ] Beitel admitted that nothing else had occurred that would have caused the pain. She knew that it was something from the training session that caused the pain. [ 34 ] Beitel admitted that she had telephoned Hilkewich to obtain her opinion on whether to continue the personal training. [ 35 ] Beitel testified that she obtained a degree in anatomy in 1995 and a degree in nursing in 1998.

On cross- examination by Hilkewich’s counsel, Beitel confirmed that since 2007, she had been on the staff of the nursing program at SIAST, teaching both nursing and anatomy. Since youth, she had back and related ailments, due to an accident as a child and manual lifting at university. She had undertaken chiropractic treatments and physiotherapy to alleviate her chronic back pain. By 2008, she had taken a leave from nursing and adjusted her hours of teaching at SIAST to take extensive chiropractic treatment in Lethbridge.

By later in 2008, her back pain had abated, but she needed to gain muscle strength to return to work. After 25 years of back pain, she now was pain free. [ 36 ] The evening of the second personal training session, Beitel started to suffer discomfort. The pain was in a different area of her back. The pain was on the severe end. It did not abate but continued at that level. Beitel admitted that, at her Questioning, she stated she had suffered an injury at her second personal training session.

However, in cross-examination, Beitel clarified that she did not know for sure that she had injured herself; she knew that she was in a lot of pain. [ 37 ] Beitel’s counsel argues that, while Beitel had a suspicion the evening of February 9, 2009 that she had suffered an injury during the second personal training session, she did not discover the injury until she had the telephone conversation with Hilkewich no earlier than February 17, 2009.

Beitel did not know that the discomfort she was feeling was not a usual or normal experience from a personal training session until she discussed it with Hilkewich in their telephone conversation. [ 38 ] There is no issue that the other conjunctive requirements of s. 6(1) of the Act have been met. That is, Beitel knew that the injury appeared to have been caused by Hilkewich’s personal training session, and a proceeding would be an appropriate means to seek to remedy it.

The only issue for the court to determine is whether Beitel has proven that she did not know that an injury had occurred until the telephone conversation with Hilkewich after her return to Canada. [ 39 ] I must conclude that Beitel has failed to prove that she did not know that the injury had occurred until she discussed her pain with Hilkewich once Hilkewich had returned to Canada. Beitel ought to have known that she had suffered an injury the evening of February 9, 2009, when she first experienced the severe pain in her back. Beitel was experienced in nursing and anatomy.

She had dealt with other back problems in the past and knew this severe pain was something different. The additional information from Hilkewich that Beitel should discontinue personal training would not have been sufficient to raise Beitel’s suspicion of being injured to a confirmation of being injured. On all the evidence, I must conclude that Beitel ought to have known the evening of February 9, 2009 that the injury had occurred. Her claim was discovered February 9, 2009. Her proceeding was commenced February 11, 2011. Beitel’s claim is barred by s. 5 of the Act .

COSTS [ 40 ] At the request of counsel, the matter of costs is reserved, to be brought back for argument upon notice to the Local Registrar. J. A.R. ROTHERY