Canada: Distinction Between Substantive v. Procedural Law Determines Applicability Of No Fault Auto Insurance Scheme

In Ngo v. Luong, 2014 BCSC 516, the Supreme Court of British Columbia considered whether Saskatchewan's Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (AAIA), as amended, is properly characterized as procedural or substantive law. The distinction would govern whether a British Columbia resident, injured in a Saskatchewan car accident, could avoid application of the AAIA by suing in her own province.

The issue arose as the result of an accident involving the plaintiff passenger and the defendant driver while they were travelling through Saskatchewan in the defendant's motor vehicle. The motor vehicle was registered in British Columbia, and the parties involved were residents of British Columbia. The defendant lost control of the vehicle and it flipped over, causing the plaintiff to suffer personal injuries.

The plaintiff sued the defendant in British Columbia. The parties agreed that the British Columbia Supreme Court had jurisdiction to hear the case, that matters of procedure in that were properly governed by the law of British Columbia as the lex fori (law of the forum), and that the substantive law of Saskatchewan applied as the lex causae or loci delicti (law of the place where the wrong occurred). They disagreed about whether the AAIA was properly characterized as procedural law or substantive law. If it was found to be substantive law, then it applied to the case, even though the action was commenced in British Columbia. However, if it was found to be procedural law, then it would only apply to trials in Saskatchewan and, therefore, would have no application to the proceedings in question.

The Court reviewed the AAIA and amendments thereto, and noted that Saskatchewan adopted a comprehensive no-fault insurance scheme by way of The Automobile Insurance Amendment Act, S.S. 1994, C.34, s.18 (the "1994 Amendment"). Under the 1994 Amendment, there was no right to choose a tort claim in place of the no-fault scheme. Subsequently, after it was criticized, the AAIA was further amended by The Automobile Accident Insurance Amendment Act, S.S. 2002, c.44, s.13 (the "2002 Amendment") to give Saskatchewan residents the option to claim in tort or instead under the no-fault scheme.

The AAIA does not specifically mention out-of-province drivers, but provides for a tort election by Saskatchewan drivers only. Further, even for Saskatchewan residents, a tort election is only effective if it is made before there has been an accident, and only if the driver is a Saskatchewan resident at the time of the accident.

A tort election was not made by the plaintiff, nor would it have been available to her as a non-resident.

In deciding the issue, the Court considered the authorities with respect to the distinction between substantive and procedural law. This distinction was described in Castel & Walker, Introduction to Conflict of Laws, 6th Ed. (Toronto: Butterworth's, 2005) at p. 6-1:

"Procedure" has been described as the "mode of proceeding by which a legal right is enforced as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to administer, the machinery as distinguished from the product." In other words, procedure pertains to the methods of presenting to a court the operative facts upon which legal relations depend. It is primarily concerned with the machinery for enforcing a right by action in the courts and it has been held to include, inter alia, the form of the action, the parties to the action, the determination of the proper court, the rules of practice and pleadings, questions of evidence and the execution of foreign or domestic judgments.

The plaintiff conceded that the AAIA following the 1994 Amendment, but prior to the 2002 Amendment was substantive law. However, the plaintiff argued that following the 2002 Amendment, the AAIA should be characterized as procedural, such that it does not apply to persons who bring their claim in a British Columbia court. In particular, the plaintiff argued that the 2002 Amendment "changed the nature of the law, transforming it from a substantive law that eliminated a cause of action into a procedural law that governs how certain rights are enforced following a motor vehicle accident".

In finding that the AAIA was and continues to be substantive law, the Court disagreed with the plaintiff's submission that the fact that Saskatchewan residents are now able to make an election prior to the occurrence of an accident changed the characterization of the law. The Court held that at the time an accident occurs, the rights of the claimant are already defined. The AAIA does not set out a procedural election by which the claimant can select the means by which he or she enforces his or her rights. The AAIA defines a claimant's rights and not the means of their enforcement, and thus, it is correctly characterized as substantive law.

The Court noted that this characterization makes things such that a British Columbia plaintiff who is injured in Saskatchewan is in no better position bringing his or her suit in British Columbia than in Saskatchewan. This elimination of a motive for forum shopping was held to further support the characterization of the AAIA as substantive law.

Having found the AAIA to be substantive law applicable to the plaintiff's claim despite the fact that it was brought in a British Columbia Court, the plaintiff's request under Rule 9-4 for a declaration that the action was not barred by the provisions of the AAIA was dismissed.

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