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Judge says Burnaby woman can't sue for Sask. accident

A Burnaby woman can't sue her husband for injuries from a single-car accident because they were in Saskatchewan when it happened, a B.C. Supreme Court judge has ruled.

Burnaby residents Lien Anh Ngo and her husband, Thien Luong, were travelling in Saskatchewan on July 26, 2009 in Luong's B.C.-registered vehicle. Luong lost control of the vehicle and it flipped over, injuring Ngo, said Justice William Ehrcke's judgment last week.

She filed a civil suit in B.C. on March 29, 2011 seeking damages for her injuries which she claimed were due to "his negligent driving."

She sought damages including those for pain and suffering, "loss of enjoyment of life," past and future wage loss, and costs of future care.

In response, Luong's lawyer claimed Ngo had no right to sue because Saskatchewan has a no-fault insurance system.

That province brought in the system in 1994. People injured there in motor vehicle accidents get immediate access to benefits and compensation no matter who was at fault. The intention is to avoid costly court cases to determine fault or how much the injured person is compensated.

At first, there was no option to sue, but in 2002, Ehrcke explained, the law was changed to allow a person to choose legal action as a remedy instead of the no-fault coverage. But that choice must be made before there has been an accident, and is only available to Saskatchewan residents.

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

The argument in the case was whether Saskatchewan's Automobile Accident Insurance Act (AAIA) is a procedural law or a substantive one.

Ehrcke decided it's the latter, making it applicable even in B.C.

The law defines the rights of people injured in motor vehicle accidents in Saskatchewan. "It is not concerned merely with the procedure or mechanism for enforcing those rights."

Anyone who did not opt up front for legal action as a remedy is covered by the no-fault insurance system, he said. "The only difference is that the out-of-province claimant never had the possibility of making such an election."

Ehrcke dismissed the plaintiff's request for a declaration that the legal action is not barred by the AAIA.

With the AAIA as a substantive law, it means a British Columbia resident injured in a Saskatchewan motor vehicle accident is no better off filing their lawsuit in B.C. than in Saskatchewan.

The fact categorizing it as substantive law "eliminates the motive for forum shopping" is an additional indicator it's the correct decision, Ehrcke said.

wchow@burnabynewsleader.com

twitter.com/WandaChow

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