BC Health Care Costs Recovery Act Gets Its First Judicial Consideration
As of April 1, 2009 the BC Health Care Costs Recovery Act came into force. This legislation applies to almost all non-ICBC personal injury claims in this Province. (click here for some background on this act).
The first judgement that I’m aware of dealing with this legislation was released today by the BC Supreme Court.
In today’s case (MacEachern v. Rennie), the Plaintiff was seriously injured when her head came in contact with a tractor trailer driven by the defendant Rennie. The Plaintiff’s personal injury trial started in March, 2009 (before the Health Care Costs Recovery Act came into force) and proceeded well beyond April 1 (when the Act came into force). On April 21, well into the trial, the Plaintiff’s lawyer brought a motion to amend the claim to include $699,195 in hospitalization costs paid by the BC Government.
Mr. Justice Ehrcke concluded that it would be prejudicial to permit the Plaintiff to amend her claim to include these significant costs so late in the trial. In dismissing the motion he reasoned as follows:
 Counsel for the plaintiff and counsel for the intervenor submit that it might not be necessary for the defendants to call evidence if the claim were limited to a claim for hospital costs. The suggestion is that these costs are calculated on a simple per diem basis, and there would be no realistic basis on which the defendants could contest hospital costs.
 I cannot accept that submission. During argument on this motion, counsel for the defendants advised that they still have not seen a copy of the Minister’s certificate. Since counsel have not seen what would actually be in the certificate, it is speculative to hypothesize that the defendants would have no factual basis to challenge it. The salient point is that in law, the defendants are at liberty to lead evidence to challenge the facts asserted in a s. 16(1) certificate. Their opportunity to lead such evidence has been irreparably compromised by the fact that the application to amend the statement of claim, to add the claim for past health care costs was brought so late in the trial.
 Because of the prejudice that the proposed amendments would cause to the defendants, and in light of the fact that the plaintiff would not enjoy any personal benefit from the addition of a claim for past health care costs, the application for leave to amend the statement of claim is dismissed.
As the first precedent dealing with this Act today’s case is worth reviewing for all BC personal injury lawyers. Mr. Justice Erhcke goes through the Act in detail and analyzes the Act’s application to personal injury claims filed, but not resolved, prior to the Act coming into force.