SAMANTHA WIEBE v. HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, 2017 SKQB 368

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 368 Date: 201 7 12 11 Docket: QBG 455 of 2017 Judicial Centre: Regina BETWEEN: SAMANTHA WIEBE AND HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA PLAINTIFFS - and - INTACT INSURANCE COMPANY DEFENDANT Counsel: Ken Noble for the plaintiff Dean Stanley for the defendant JUDGMENT PRITCHARD J. December 11, 2017 [ 1 ] This action was commenced at the judicial centre of Regina. The defendant insurer immediately gave notice to the local registrar at the judicial centre for Regina that it required the matter to be transferred to the judicial centre of Saskatoon.

The transfer was requested pursuant to Rules 3-3(1) and 3-6(1) of The Queen’s Bench Rules as well as s. 22(3) of the The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 [ Act ]. The transfer request was made on the basis that Saskatoon is the closest judicial centre to where the cause of action arose. In response, the plaintiff made the within application for an order pursuant to Rule 3 - 6(4) and s. 22(9) of the Act allowing the action to remain in the judicial centre of Regina. BACKGROUND [ 2 ] The plaintiff, Samantha Wiebe, is a resident of the town of Ponoka, in the Province of Alberta.

When she was a 17 year old minor, Ms. Wiebe was injured while visiting the farm of a relative residing in Hague, Saskatchewan. On December 25, 2015 the relative was driving her vehicle in a field near the farm yard while pulling a number of children on a large inner tube that was connected to the vehicle by a rope. Unfortunately, the tube with the children riding on it struck a bale of hay. The plaintiff was severely injured and as a result of the accident is now a paraplegic. [ 3 ] The vehicle involved in the accident was registered in Saskatchewan and bore Saskatchewan license plates.

However, Saskatchewan Government Insurance [SGI] is not required to provide insurance coverage for injuries sustained in the accident by virtue of an agreement commonly referred to as the “Knock for Knock Agreement” between SGI and Her Majesty the Queen in Right of Alberta dated July 9,

Section 2.1(

a) of the Knock for Knock Agreement states: 2.1 Intended Results – This Agreement is intended to produce the following results: (

a) Where an Alberta Resident is injured in an Accident in Saskatchewan, he or she will be compensated on a no-fault basis by his or her own insurer, and will not be compensated by SGI. [ 4 ] The Appendix to the Agreement provides for “Supplemental Benefits Respecting Accidents Occurring Outside of Alberta in a No-Fault Jurisdiction” which further states:

(2) Where an insured person suffers personal injury as a result of an accident occurring in a no-fault jurisdiction, the insurer agrees to pay to the insured person the amount that would be payable under the applicable laws of the no-fault jurisdiction as if the insured person were a resident of the no-fault jurisdiction. [ 5 ] It is not disputed that at the time of the accident the plaintiff’s parents were insured persons under a policy of insurance issued by the defendant, Intact Insurance Company [Intact].

It is likewise undisputed that the plaintiff was an insured person under her parent’s insurance issued by Intact and that the accident that caused her injuries was an insured event within the terms of the Intact policy. Although Intact has acknowledged its liability to the plaintiff and has made significant payments in accordance with the applicable legislation, the plaintiff maintains that Intact has failed to fully adhere to the provisions of The Automobile Accident Insurance Act, RSS 1978, c A-35 and its regulations [ AAIA ]. The plaintiff therefore commenced this action seeking, inter alia : (

a) A declaration that the Plaintiff Wiebe is entitled to such benefits as may be payable pursuant to the provisions of The Automobile Accident Insurance Act and its Regulations. (

b) A declaration that the provisions of The Automobile Accident Insurance Act and its Regulations as to payment of benefit, as well as all other provisions of the Act and Regulations are to be adhered to by the Defendant Intact; (

c) Such orders as may be necessary to give effect to the intent of the Knock for Knock Agreement of July 9, 1997; Position of the Parties The Defendant Insurer [ 6 ] The defendant Intact says that because the plaintiff’s injuries occurred within the jurisdiction of the judicial centre of Saskatoon the action should be transferred to that judicial centre in accordance with the requirements of s. 22(1)(

a) of the Act and Rule 3- 3(1)(

a) of The Queen’s Bench Rules . The defendant further submits that the judicial centre of Regina is not appropriate because not only did the cause of action not arise in that judicial centre but the defendant neither resides nor carries on business in that judicial centre. [ 7 ] The relevant portions of s. 22 of the Act state: 22

(1) Subject to this section, all actions shall be commenced and, unless ordered otherwise, tried at the judicial centre nearest to the place where: (

a) the cause of action arose; (

b) the defendant or one of several defendants resides when the action is commenced; or (

c) the defendant or one of several defendants carries on business when the action is commenced. …

(3) Except where the parties have agreed in writing to venue, an action may be commenced at any judicial centre, but unless an action is commenced at one of the judicial centres mentioned in subsection (1), a defendant may request a transfer of the action in accordance with subsection (4) or (5).

(4) If there is only one defendant, the defendant may, at any time after entering a defence and before the action is set down for trial, file with the local registrar at the judicial centre where the action was commenced a notice requesting a transfer of the action to a judicial centre mentioned in subsection (1) that is specified in the notice. …

(9) A judge may order the transfer of any action to any judicial centre. [ 8 ] Rules 3-3 and 3-6 closely track s. 22 of the Act . The relevant portions of The Queen’s Bench Rules state: 3-3

(1) Subject to this rule, all actions must be commenced and, unless ordered otherwise, tried at the judicial centre nearest to the place where: (

a) the cause of action arose; (

b) the defendant or one of several defendants resides when the action is commenced; or (

c) the defendant or one of several defendants carries on business when the action is commenced. …

(3) Except where the parties have agreed in writing to a venue, an action may be commenced at any judicial centre, but, unless an action is commenced at one of the judicial centres mentioned in subrule (1), a defendant may request a transfer of the action in accordance with rule 3 -6. … 3-6

(1) If there is only one defendant, the defendant may, at any time after filing a statement of defence and before the action is set down for trial, file with the local registrar at the judicial centre where the action was commenced a notice requesting a transfer of the action to a judicial centre mentioned in subrule 3-3(1) that is specified in the notice.

…

(4) A judge may order the transfer of any action to any judicial centre. [ 9 ] The defendant submits that not only did the cause of action arise in the judicial centre of Saskatoon but the balance of convenience also favours that judicial centre. It says that a number of Alberta physicians practicing in the vicinity of Edmonton and Panoka will likely be required to testify and suggests that the travel time and expenses for these witnesses would be significantly reduced if the action proceeded in Saskatoon rather than Regina.

Although somewhat of less concern, the defendant also notes that this reduced travel time would similarly be more convenient to its employees based in Calgary, Alberta. Intact likewise says that the judicial centre of Saskatoon will be much more convenient for any witnesses from Bridges Health, an occupational therapy and rehabilitation consultant company operating out of Saskatoon, that it retained to assist with the administration of the plaintiff’s benefits claim. Position of the Plaintiff [ 10 ] Ms. Wiebe disputes the insurer’s positon that the within cause of action arose in the judicial centre of Saskatoon.

She acknowledges that the accident that resulted in her injuries occurred within the judicial centre of Saskatoon. Nevertheless, she maintains that the action does not relate to the accident per se and that it is only incidental to the real issue in dispute between the parties. According to the plaintiff, the real cause of action relates to the

interpretation of the Knock for Knock Agreement. [ 11 ] It is agreed by all parties that Intact is the insurer responsible for the plaintiff’s injuries and that the driver of the vehicle “at fault” in the accident was not insured by Intact but by SGI. Thus, SGI would normally be the insurer responsible for the plaintiff’s injuries. It is only because of the provisions of the Knock for Knock Agreement that liability is required to be assumed by Intact.

However, because of the Knock for Knock Agreement, Intact does not simply pay insurance proceeds in accordance with the terms of its own insurance policy but pays “the amount that would be payable under the applicable laws of the no-fault jurisdiction as if the insured person were a resident of the no-fault jurisdiction”. [ 12 ] According to the plaintiff, the essence of her action is that Intact is wrongly dealing with her injury claim only in the manner that it sees fit and only in accordance with its own procedures rather than as it is required to do under the terms of the AAIA and the Knock for Knock Agreement.

Thus, from the plaintiff’s perspective, the action is not based on the accident but relates solely to Intact’s obligations under the Knock for Knock Agreement. In other words, the action was not brought to determine Intact’s liability under its policy of insurance but to clarify how the Knock for Knock Agreement and the AAIA apply to Intact’s acknowledged liability to its insured. Therefore, the plaintiff submits neither Rule 3 -3(1)(

a) nor s. 22 (1) (

a) of the Act apply. [ 13 ] On the issue of balance of convenience, the plaintiff filed an affidavit with exhibits showing distances between Calgary and Edmonton to Saskatoon and Regina and providing samples of airline ticket prices. These exhibits show that there is only a very small difference in the travel time and costs that might be incurred by Alberta witnesses travelling from Calgary or Edmonton regardless of whether they travel to Regina or to Saskatoon. The nominal cost difference in airline tickets varies between $15.00 and $18.00. The travel time difference varies between 13-19 minutes.

ANALYSIS [ 14 ] I accept the plaintiff’s argument that the claim in this matter has only a nominal connection to the judicial centre of Saskatoon. The plaintiff’s injuries were certainly sustained within that judicial centre but the substantive issue in dispute does not relate to the accident. The real dispute between the parties is based on differing views of an insurer’s obligations under the AAIA .

In particular, the parties disagree as to whether Intact has the same obligation that SGI has under the AAIA to provide written reasons for decisions it makes regarding the plaintiff’s entitlement to benefits and whether, like SGI, it is obliged to advise and assist the plaintiff and give written notice of her entitlement to ask for mediation or to appeal its decisions. [ 15 ] Given my determination that the cause of action does not arise in the judicial centre of Saskatoon, and the fact that the defendant neither resides or carries on business in that judicial centre, there is no mandated judicial centre in which this action must be commenced.

The court is therefore left to consider which of the two proposed judicial centres is most appropriate in the circumstances. [ 16 ] Intact carries on business from offices located in the Province of Alberta. Although duly registered in this province, it has no physical office here and has no significant connection to either the judicial centre of Saskatoon or the judicial centre of Regina.

It does, however, have a nominal connection to the judicial centre of Regina as the three individuals it has appointed as powers of attorney for acceptance of service within this province reside in Regina. [ 17 ] Intact argues that the judicial centre of Saskatoon is most convenient but I am satisfied that neither judicial centre is significantly closer for travel purposes for the insurer or its Alberta witnesses.

As for Intact’s potential Saskatchewan witnesses, it is noted that the defendant initially retained the professional services of Bridges Health in Saskatoon but that relationship has since been terminated. It is therefore impossible at this stage to know whether one or more or any of Bridges Health’s employees will actually be required at trial. [ 18 ] The plaintiff and her parents reside in Alberta. The plaintiff selected the judicial centre of Regina as the appropriate place to commence this action.

She acknowledged no relevant connection to the judicial centre of Regina other than it is the location of her lawyer. [ 19 ] There is very little to endorse one judicial centre as more convenient than the other. The reality is that conducting this trial in either judicial centre will entail significant inconvenience to both parties as they are both located in Alberta. That being the case, the default positon might arguably be to decide that the scales should tilt in favour of the defendant.

This is because convenience to the defendant is a relevant factor in two of the three mandated criteria for determining where an action shall be commenced. Although there is no evidence to this effect, the historical concern for the convenience of the defendant presumably arose, at least in part, to protect defendants from unscrupulous or opportunistic plaintiffs. Saskatchewan is a vast rural province and there could be great tactical advantage to plaintiffs by selecting a judicial centre that could make it logistically and economically difficult or even impossible for

defendants to properly defend themselves. [ 20 ] Nevertheless, I find no compelling reason in this case to accede to the defendant’s preferred judicial centre. The plaintiff has stated that she selected the judicial centre of Regina as a cost saving measure to save fees and expenses associated with her lawyer travelling from Regina to Saskatoon. In my view, this is a situation where fairness to the valid economic choice of the plaintiff should tip the scales.

To some degree, the comments of Klebuc J. (as he then was) in Thomas v Peace Hills Trust Co. , 2001 SKQB 421 , 212 Sask R 20 [ Peace Hills ] have informed this assessment. [ 21 ] The procedural steps taken in Peace Hills mirror those in this action. In Peace Hills , the action was originally commenced in the judicial centre of Battleford where the plaintiffs resided. The defendant then requested that the action be transferred to the judicial centre of Saskatoon on the basis that this was where the cause of action arose and where it carried on business.

As with this case, the plaintiff in Peace Hills responded with an application under s. 22(9) of the Act directing that the action remain in the judicial centre of Battleford where it had been commenced. [ 22 ] In Peace Hills , the plaintiffs were trustees of settlement funds received by the Saulteaux First Nation. In their statement of claim, the trustees alleged they suffered a loss of some 3.5 million dollars by virtue of Peace Hills having breached the terms of the trust agreement.

Unlike the plaintiff in this case, the plaintiffs in Peace Hills acknowledged that the acts or omissions giving rise to their cause of action occurred at the offices of Peace Hills in Saskatoon. The trustees therefore conceded that the judicial centre of Saskatoon was appropriate under s. 22(1) (

a) of the Act . Nevertheless, the trustees argued that s. 22(1) (

c) also authorized the commencement of the action in the judicial centre of Battleford because the defendant Peace Hills, carried on business in that judicial centre. [ 23 ] The defendant denied that it carried on business in the judicial centre of Battleford. It argued that it only maintained business at its offices in Saskatoon, Fort Qu’Appelle and Edmonton and therefore s. 22(1) (

c) of the Act did not apply. All parties acknowledged that if s. 22(1) (

c) applied, the defendant had no right to request the change of venue. A finding that Peace Hills carried on business in the judicial centre of Battleford was therefore essential to the plaintiffs’ efforts to maintain their action in that judicial centre. If s. 22(1)(

c) did not apply, then s. 22(1)(

a) would prevail and the action would automatically be transferred as requested by the defendants to the judicial centre of Saskatoon where the cause of action arose. [ 24 ] Justice Klebuc considered the historical meaning of the phrase “carries on business” and opted for a more expansive approach to reflect the more modern reality of an “off premises” approach to transacting commerce as opposed to the “brick and mortar” model.

Thus, even though Peace Hills did not maintain an office within the judicial centre of Battleford, Justice Klebuc concluded that it was nevertheless carrying on business within that judicial centre as the trust agreement was signed there and representatives of Peace Hills would commonly travel to locales within the judicial centre to meet with the trustees regarding trust investments.

More relevant to this case is the other significant factor influencing Justice Klebuc’s decision; namely the economic impact on the plaintiff trustees and the beneficiaries of the trust if he maintained the “brick and mortar” model and allowed the action to be transferred to Saskatoon as requested by the defendant.

At para. 16 he states: 16 In my view, the "off-premises" approach to transacting commerce necessitates an expansion of what was traditionally understood as "carrying on business" in order to ensure citizens have access to this Court within reasonable proximity to where they live and customarily transact business.

When viewed from a policy perspective, a commercial institution that chooses to engage in "off-premises" commerce , is better able to absorb or distribute the cost associated with legal proceedings being tried at the judicial centre nearest to the point of contact between it and the customer than the customer .

That is to say, a motor vehicle dealer who has a physical place of business situated in the City of Estevan but employs salespersons to pursue sales of its product throughout the Province, including people living in towns and villages hundreds of kilometres distant from the Judicial Centre of Estevan and who have no social, cultural or business connection with such judicial centre, would be in a better position to absorb and disperse the cost of a trial regarding one of its products at the judicial centre where it interfaced with the plaintiff than would the plaintiff if her or his cause of action had to be tried at the Judicial Centre of Estevan. [Emphasis Added] [ 25 ] The situation of Intact is not all like that of Peace Hills but the economic realities of the choice of venue to the plaintiff trustees and to the plaintiff in this action are comparable.

This is a situation where the plaintiff insured commenced her action in the judicial centre of Regina because that is where her lawyer resides. She is concerned that her legal costs to maintain the action would be prohibitive if her lawyer is required to travel to Saskatoon for mandatory mediation, discoveries, interlocutory application and ultimately trial. Convenience to counsel is not generally accepted as a relevant factor when balancing the convenience of one judicial centre over the other but this is not simply a matter of convenience to counsel.

Moreover, this is a case where there is no valid juristic reason for the defendant to oppose the plaintiff’s choice of venue. The defendant’s cost of potential witnesses will not be significantly affected by whether the action is maintained in Regina or in Saskatoon. The defendant’s counsel also has offices in both Regina and Saskatoon and, if necessary, it is in a better position to absorb any increase for its counsel to travel from Saskatoon to Regina. The situation is very different for the plaintiff. [ 26 ] The costs of pursuing litigation are significant and will impact both parties.

If this matter settles, most if not all of the costs incurred up to settlement will likely be borne by each party with no contribution by the other. Even costs that might be awarded following a trial will not come close to indemnifying the successful litigant for the actual costs incurred. In this case, where there is no other significant reason to prefer one judicial centre over the other, I conclude that the defendant insurer “is better able to absorb or distribute the costs associated with the legal proceeding” regardless of the judicial centre selected.

I therefore exercise my discretion and decline to transfer the action to the judicial centre of Saskatoon. [ 27 ] The defendant concurrently applied for an order striking out paras. 4, 6, 9, 10 and 12 of the Affidavit of Eva Wiebe sworn July 5, 2017 and paras. 13-30 of the Affidavit of Samantha Wiebe sworn July 6, 2017 or in the alternative, an order that the paragraphs be disregarded as inadmissible. The defendant submits that the statements in the identified paragraphs are inadmissible as opinion and argument.

The plaintiff responded by saying that to the extent the material complained of was not strictly relevant, it nevertheless represented “facts” within the knowledge of the insurer that have been admitted by it and should therefore not be

controversial. [ 28 ] I find that for the most part, the content of the paragraphs in issue comply with Rule 13-30. Although some of the statements might arguably constitute opinion given the facts upon which they are based the opinions are largely self-evident. Likewise, some of the statements cited by the deponents as “fact” are derived from information provided by counsel and might arguably be seen as opinion of counsel rather than the opinion of the deponent.

Nevertheless, given the limited contravention, the application is dismissed. [ 29 ] The focus of the court and counsel at the hearing was on the application dealing with the appropriate judicial centre and not the defendant’s application to strike portions of the affidavits. The plaintiff has been successful on the main issue and shall be entitled to costs of one contested application. J. J.L. PRITCHARD