Alberta Bound?: BCCA declines Jursidiction

From an insurance law standpoint, the recent British Columbia Court of Appeal decision of Dembroski v. Rhainds 2011 BCCA 185 breaks little new ground and is simply a template application of well-settled conflict of law (jurisdiction) principles. However, the decision is of some interest to insurance lawyers since it touches upon British Columbia’s fairly new and untested Health Care Costs Recovery Act, S.B.C. 2008, c. 27 (the “Act”).

In Dembroski, the plaintiff/appellant was injured in a motor vehicle accident near Grande Cache, Alberta.  The Plaintiff was in Alberta for a short time only, and otherwise was a resident of B.C.  The defendant vehicle was Alberta owned and insured, but driven by a Quebec resident.  The plaintiff commenced an action out of the British Columbia Supreme Court Registry in Vancouver.   The defendants/respondents brought an application to dismiss the action on the basis that the B.C. Court did not have jurisdiction.  This application was granted and the plaintiff subsequently appealed.

The plaintiff argued that because she was advancing a claim under the Act on behalf of the Province of British Columbia, jurisdiction here could be sustained under s. 10(l) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28.  The Court of Appeal found that the health care claim was not one that could be described, within the terminology of s. 10(l), as being brought by the “government” of British Columbia. The Court further rejected the argument that because damages continued to be suffered by the plaintiff in British Columbia, the courts here should have jurisdiction.

The implication for insurers and personal injury litigants is that a plaintiff’s inclusion of the mandatory health care claim will not be a compelling factor in a jurisdictional dispute. A consequential issue that remains open is whether extra-provincial courts will apply the Act. Many provinces have a similar statutory scheme, but there are arguments for and against extra-provincial application of the statute. Until this issue is settled, insurers may have further reason to argue against the British Columbia Court’s assuming jurisdiction when faced with the potential of a large health care claim.

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