Nystrom v Tarnava
(1996) 44 Alta LR (3d) 355 (QB)

YANOSIK J.:-- This matter comes before me as an appeal from an order made by the Master in Chambers on March 6, 1996.

On November 27, 1995 the defendant, Tarnava, applied by notice of motion for an order:

(a) for summary judgment dismissing the claim of the plaintiff, Nystrom, pursuant to Rule 159 of the Alberta Rules of Court, or in the alternative

(b) striking out Nystrom's Statement of Claim pursuant to Rule 129 of the Alberta Rules of Court.

On March 6, 1996 Tarnava's application was heard and the Master in Chambers made the following Order:

"It is hereby ordered that:

1.Summary judgment be and hereby is granted and the Statement of Claim filed in this action be and hereby is struck out.

2.Table Party and Party costs are hereby ordered in favour of the Defendant to be calculated pursuant to Column 3 of Schedule C of the Alberta Rules of Court."

Nystrom appeals that Order.

Nystrom's action against Tarnava is an action in tort for general and special damages, including damages for loss of income from her employment, arising cut of a motor vehicle accident which occurred in Saskatchewan on August 5, 1991. Before and at the time of the accident, and throughout the period thereafter, both Nystrom and Tarnava resided in Lethbridge. On August 5, 1991, Nystrom was operating her motor vehicle at or near Swift Current, Saskatchewan, when it was struck from behind by a motor vehicle owned and operated by Tarnava. Nystrom alleges she was injured in the collision, required medical care and treatment for her injuries, sustained special damages as a result of her injuries, and suffered loss of income from her employment. All of the medical care and treatment she received was provided in Alberta, and some of her claims in those respects are subrogated to Alberta Health Care.

The Statement of Claim by which Nystrom brought this action against Tarnava was caused to be issued by her solicitors on June 11, 1993, which is about 22 months after the accident.

On October 14, 1994, a Statement of Defence was filed by Tarnava through her solicitors in which everything alleged by Nystrom concerning the accident, her injuries, and her claims for damages is denied. Tarnava also specifically pleads that the law governing Nystrom's action is the law of the Province of Saskatchewan; that Nystrom's action for the recovery of damages occasioned by a motor vehicle that occurred in Saskatchewan is barred by section 88 of The Highway Traffic Act, R.S.S. 1978, c H-3.1 after the expiration of 12 months from the time the damages were sustained; and alternatively, that Nystrom is barred from bringing her action in Alberta because no cause of action existed in Saskatchewan when the Statement of Claim was issued.

Rule 159, under which Tarnava applies for summary judgment, states, and I quote only the relevant parts:

"159(2) A defendant may, after delivering a statement of defence, on the ground that there is no merit to a claim... apply to the court for judgment on an affidavit sworn by him or some other person who can swear positively to the facts, stating that there is no merit to the ...claim and that the deponent knows of no facts that would substantiate the claim ...

(3) On hearing the motion, if the court is satisfied that there is no genuine issue for trial with respect to any claim, the court may give summary judgment against the plaintiff ..."

Rule 129, under which Tarnava applies to strike the Statement of Claim, states, and again I quote only the relevant parts:

"129(1) The court may at any stage of the proceedings order to be struck out or amended any pleading in the action, on the ground that

(a) it discloses no cause of action ...

(2) No evidence shall be admissible on an application under clause (a) of subrule (1)."

In support of her application for summary judgment, Tarnava only filed her own sworn affidavit. Her affidavit makes no reference to her application, in the alternative, to strike Nystrom's Statement of Claim, and I have concluded that is because her application to strike is made pursuant to Rule 129(1)(a) where no evidence is admissible. Nystrom filed her affidavit in response, but it does no more then set out the nature of her action against Tarnava, and of her claims for damages. The two affidavits constitute the evidence before me.

In her affidavit, Tarnava says that she was advised by her solicitors and does verily believe that Nystrom's action for the recovery of damages arising from a motor vehicle accident in Saskatchewan is barred by the law of Saskatchewan where more than 12 months have passed from the date of the accident to the date of the commencement of the action, and that in her belief there is no merit to Nystrom's claim against her. Tarnava appends to her affidavit as an exhibit what she says she believes is a true copy of the relevant provision from the Highway Traffic Act, R.S.S. 1978, c. H-3.1 which limits an action for damages occasioned by a motor vehicle. I refer specifically to paragraphs 5 and 6 of the affidavit which state:

5. I am advised by my solicitors, Milner Fenerty, and do verily believe, that actions arising from motor vehicle accidents in the Province of Saskatchewan are barred by the law of Saskatchewan where more than 12 months has passed from the time of the collision. A true copy of the relevant provisions from the Highway Traffic Act, R.S.S. 1978, c. H-3.1 is appended as Exhibit "C" to this my Affidavit.

6. It is my belief that there is no merit to the claim against me and know of no facts which would substantiate the claim."

Exhibit C is a photocopy of a single page entitled "Highway Traffic Act R.S.S. 1978, c. H-3.1" containing several numbered paragraphs including the following:

"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."

The photocopy is not authenticated by any Government of Saskatchewan authority or department or otherwise. Tarnava, in effect, states that she has been advised and does very believe there is no merit to Nystrom's claim by reason of the provision appearing in the exhibit, and, therefore, no genuine issue for trial.

I have already said that Nystrom's affidavit attests to the motor vehicle accident occurring in Swift Current, Saskatchewan on March 5, 1991 and sets out the nature of her action and her claims for damages. She also states that it was her expectation that the law of Alberta would apply to her rights and entitlements in any lawsuit arising out of the accident.

It is apparent from the Order granted by the Master on March 6, 1996 that in granting the Order the Master blended Rule 159 and Rule 129. In doing so the Master misstated the result, and that was wrong. Had he been justified on the evidence filed in support of the application for summary judgment under Rule 159(2) the Master could have allowed that application and under Rule 159(3) dismissed Nystrom's claim on the grounds that there was no merit to the claim and no genuine issue for trial. Alternatively, on the application under Rule 129(1)(a) to strike Nystrom's Statement of Claim had he been justified upon looking at the Statement of Claim alone that it disclosed no cause of action, the Master could have struck the Statement of Claim on that ground. The Master could not have granted both summary judgment and an Order striking Nystrom's Statement of Claim. Applications under Rule 159 and 129 are very different, and indeed mutually exclusive.

On an appeal from a decision of a Master in Chambers this Court must consider the matter as though it were before the Court for the first time.

I shall deal firstly with Tarnava's application to strike Nystrom's Statement of Claim pursuant to Rule 129(1)(a). No evidence is admissible on such an application, and in making a determination the Court looks only at the pleading or pleadings asked to be struck. Looking at the Statement of Claim, it cannot be said that it discloses no cause of action. Nystrom's claim is based on a tort alleged to have been committed by Tarnava, and the claim is not barred by Alberta's Limitation of Actions Act, R.S.A. 1980 Chap. L-15 or by any other Alberta statute, law or procedural rule. Neither party argues that this Court does not have jurisdiction to hear the action commenced by Nystrom. The jurisdiction of the Court is clearly established and not in issue. Nystrom has the right to sue Tarnava in this province, the province in which Tarnava resides. No procedural wrong or issue has been raised. Alberta's Rules of Court apply, and Tarnava has pleaded as a defence to the action the limitation of action provision in Saskatchewan's Highway Traffic Act. Overall it cannot be said that the Statement of Claim discloses no cause of action. Tarnava's application to strike the Statement of Claim pursuant to Rule 129(1)(a) must be and is hereby dismissed.

With respect to Tarnava's application for summary judgment pursuant to Rule 159(2), Tarnava alleges there is no merit to Nystrom's claim because the law of Saskatchewan applies to her action and her claim is barred by section 88 of the Highway Traffic Act, R.S.S. 1978 c. H-3.1. Tarnava is entitled to an order for summary judgment dismissing Nystrom's claim if I am satisfied that the substantive law of Saskatchewan applies to this action in Alberta; that a limitation of action provision in a provincial statute is substantive law, and not procedural; and that the limitation of action provision alleged and pleaded by Tarnava, namely section 88 of Saskatchewan's Highway Traffic Act, R.S.S. c. H-3.1, has been proved or can be otherwise judicially noticed or recognized to have been in force and effect when Nystrom commenced her action against Tarnava and constitutes a bar to Nystrom's action.

A motor vehicle accident in Saskatchewan between two residents of Alberta one of whom subsequently sues the other in Alberta is categorized as an interprovincial tort claim.

It has now been authoritatively determined by the Supreme Court of Canada that the substantive law to be applied to the determination of interprovincial tort claims is the law of the place where the tort took place or the activity occurred, the lex loci delicti: Tolofson v. Jensen; Lucas v. Gagnon (1994) 120 D.L.R. (4th) 289. Tolofson and Lucas were appeals from the B.C. Court of Appeal and the Ontario Court of Appeal in two actions arising out of motor vehicle accidents that had occurred in Saskatchewan and Quebec respectively. In Tolofson and Lucas (supra) a majority of the Court, 5 of the 7 justices, held that for the purposes of clarity and certainty in the law the lex loci delicti rule, otherwise referred to as the law of the place rule, was a strict and absolute rule of law. LaForest J., who delivered the judgment of the Court on that point, concurred in by four of the others, went into the history of the rule. In his judgment, LaForest J. stated that the rule had been generally, but not absolutely, applied in the past; and stated that exceptions to the rule had been made where the consequences of applying the rule created an injustice or impractical result, led to unfair and unjust results, was not in accord with public policy, or was not within the reasonable expectations of the litigants where the litigants were residents of the forum, to name several of the exceptions referred to. Although the judgment acknowledged that some of those exceptions were not without merit or weight, it stated there was a need for certainty and clarity in the law, and a strict and absolute rule has the advantage of certainty, ease of application and predictability, and ordinarily meets normal expectations. The majority of the Court held that the lex loci delicti rule (law of the place rule) must be applied throughout Canada strictly and absolutely, without exception. The other two justices of the Court held that in general, the question of which province's law should govern the litigation should be determined by the lex loci delicti rule, but that the rule should be a strict or absolute rule admitting of no exceptions.

In Tolofson v. Jensen (supra) the Court also determined, and this time unanimously, that statutory limitation enactments, and in particular section 88 of the Saskatchewan Highway Traffic Act R.S.S. 1978 c. H-3.1, which both counsel on that case agreed was the law of Saskatchewan in December 1987 when Tolofson sued Jensen in British Columbia for a tort committed in Saskatchewan, are to be considered or characterized as substantive law, not procedural. Clearly then, whatever the case may have been before Tolofson, the categorization of statutory limitation periods as substantive law is now recognized as law.

I am satisfied that the substantive law of Saskatchewan, where the motor vehicle accident between Nystrom and Tarnava occurred, governs this action in Alberta, and that a limitation of action provision in a Saskatchewan statute is substantive law and not procedural. The issue that remains to be determined on this application is whether or not the substantive law of Saskatchewan, and in particular the alleged limitation of action provision in Saskatchewan's Highway Traffic Act has been proved on Tarnava's affidavit, or whether the statute can be judicially noticed or recognized. Counsel for Nystrom does not admit that the aforesaid statute and limitation provision was in force and effect at any time material to Nystrom's action against Tarnava and constitutes a bar to Nystrom's action.

Counsel for Tarnava submits that Saskatchewan's Highway Traffic Act, R.S.S. 1978, c. H-3.1 and the limitation of action provision section 88 has been proved on Tarnava's affidavit and constitutes a bar to Nystrom's action. It is further submitted that if the Saskatchewan statute has not been proved on Tarnava's affidavit that the statute can be judicially noticed under section 33 of the Alberta Evidence Act, R.S.A. 1980, Chap. A-21, and that under section 12 of the Judicature Act, R.S.A. 1980, Chap. J-1, the Court may take judicial cognizance of the law of Saskatchewan. Counsel for Nystrom argues that Tarnava's affidavit does not prove the Saskatchewan statute, that the Court cannot take judicial notice of the statute under the Alberta Evidence Act, and that the Court should not take cognizance of the law of Saskatchewan under the Judicature Act.

Dealing with Tarnava's affidavit, I find that there is no proof positive of the Saskatchewan statute in her affidavit, or of the law of Saskatchewan applicable to Nystrom's action. Tarnava's deposition relating to the Saskatchewan statute is based solely on advice from her Alberta solicitors and her belief in that advice. She does not and cannot swear positively to the statute law of Saskatchewan, and exhibiting the photocopy of a page which Tarnava says is a true copy of a page in the statute adds nothing. The page is not authenticated or verified by any Saskatchewan Government authority or legislative head or otherwise in any formal manner. Tarnava's affidavit contains no proof whatsoever of the alleged Saskatchewan statute and the limitation of provision contained therein which it is stated is a bar to Nystrom's action.

With respect to section 33 of the Alberta Evidence Act (supra), that section only obligates the Court to take judicial notice of the statutes of Alberta and of Canada. Section 33 states, and I quote only in part:

"33. Notwithstanding anything in this Act, every Act or regulation of Alberta or of Canada ... shall be judicially noticed."

Statutes of other provinces do not come within the section.

Under section 12 of the Judicature Act (supra) the Court may take judicial cognizance of the law of any province in the same manner as of any law of Alberta. Section 12 states:

"12. When in a proceeding in the Court the law of any province is in question, evidence of that law may be given, but in the absence of or in addition to that evidence the Court may take judicial cognizance of that law in the came manner as of any law of Alberta."

The section uses the permissive "may" rather than the obligatory "shall". By the wording of the section, the Court has a judicial discretion to take cognizance of the law of another province where that law has not been otherwise proven. The question is whether this Court should take judicial cognizance of the law of Saskatchewan when that law could have easily been proven, and where the consequences of applying that law may result in the dismissal of Nystrom's action.

In Royal Bank of Canada v. Neher (1985) 64 A.R. 22 Master Funduk refused to take judicial notice of the law of British Columbia, statutory and otherwise, under section 12 on an application by the plaintiff for summary judgment. He stated that the laws of foreign jurisdictions are questions of fact, and matters of expert evidence which should be properly proven. He said he felt uncomfortable with merely taking judicial cognizance of the B.C. law, and any disquiet must be resolved in favour of the defendant.

Nystrom's claims for damages as set out in her Statement of Claim are substantial. She claims general damages of $100,000.00 plus such special damages and loss of income that she can establish at trial, together with interest, and some of her special damage claims are subrogated to Alberta Health Care. The Saskatchewan statute was not produced in Court, and the law of Saskatchewan applicable to this case was not cited or referred to.

In the circumstances of this case I am not prepared to take judicial cognizance of the law of Saskatchewan in force and effect on June 11, 1993 when Nystrom caused her Statement of Claim against Tarnava to be issued out of this Court. Without any proof of that law I am being asked to take judicial cognizance of that law and give summary judgment dismissing Nystrom's claim. That is a severe and drastic consequence. That law could have been easily proven, and should have been proven to my satisfaction, particularly when it is alleged that by that law Nystrom's action is barred and her claim should be dismissed.

There being no proof before me of the substantive law of Saskatchewan barring Nystrom's action against Tarnava, Tarnava's application for a summary judgment dismissing Nystrom's action is dismissed.

The Masters Order granted on March 6, 1996 is hereby set aside. Nystrom is entitled to costs against Tarnava on the application before the Master, and on the appeal before me. Nystrom's costs are to be taxed under Column 3 of Schedule C of the Alberta Rules of Court.