Digest: Beitel v Hilkewich, 2018 SKQB 328

Date:November 27, 2018

Reported as: 2018 SKQB 328

Docket Number: QB18318 , QBG 185/11 JCS

Court: Court of Queen's Bench

Date: 2018-11-27

Judges:

  • Rothery

Subjects:

  • Tort � Vicarious Liability
  • Civil Procedure � Limitation Period

Digest: The plaintiff brought an action against the defendant T.H. for negligence and damages she suffered resulting from exercises given to her by the latter, in her capacity as the plaintiff�s personal trainer. The plaintiff also alleged that the defendant, Professional Sport Rehabilitation (Pro Sport), was vicariously liable for T.H.�s actions and the plaintiff�s injuries. The plaintiff�s two training sessions were held at Pro Sport�s facility. The plaintiff�s academic background and occupation was in anatomy and nursing. She suffered from chronic back pain and in order to return to work, her chiropractor recommended that she should receive help from a personal trainer. The plaintiff selected T.H. and the parties met for her first session in late January 2009. The plaintiff was unsure whether the second session occurred on February 3 or 9, 2009 but following it she began to suffer extreme back pain. She tried to contact T.H. to ask her opinion whether she should continue the personal training. T.H. was on holidays and upon her return on February 17, she called the plaintiff. T.H. expressed remorse that the plaintiff was in pain and said that her skill set was not right for the plaintiff and she would return the remainder of the funds she had charged the plaintiff. The plaintiff�s statement of claim was issued on February 11, 2011. Counsel for all of the parties provided a draft consent order to the court and it ordered a trial of two issues: 1) was Pro Sport vicariously liable for the actions of T.H.: and 2) was the plaintiff�s claim barred by s. 5 of The Limitations Act?
HELD: The plaintiff�s claim was dismissed. The court found with respect to each issue that: 1) Pro Sports was not vicariously liable for T.H.�s actions as she was an independent contractor. There was no employment contract between them and
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