Single Minister’s Certificate Sufficient Under the Health Care Costs Recovery Act

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the needed form and contents of a Minster’s certificate to recover health care costs in a Plaintiff’s tort action.

In this week’s case (Woo v. Creme De La Crumb Bakeshop & Catering Ltd).the plaintiff fell from a ladder while working at premises leased by the defendant, resulting in “catastrophic injuries”.  At trial the Plaintiff’s damages were assessed at $340,000 but then reduced by 50%  to reflect an equal apportionment of liability between the plaintiff and the defendant.

The Plaintiff also sought to recovery Ministry expenses pursuant to the Health Care Costs Recovery Act but the Defendant objected arguing that the Minister’s certificate presented to the court was deficient suggesting that the legislation requires separate certificates to address the types of health care costs being claimed and their costs.  In rejecting this argument and finding a single certificate is sufficient under the legislation Mr. Justice Skolrood provided the following reasons:

[18]         I do not agree that s. 16 of the HCCRA requires two separate certificates. While ss. 16(1) and (2) again deal with two different types of information, the sections do not specify that separate certificates are necessary. Contrary to the submission of the defendant, Ehrcke J. in MacEachern did not find that two certificates are required. Rather, as he noted at para. 25, s. 16 “sets out two different kinds of certificate evidence” (emphasis added). The requirement is one of substance rather than form. In my view, s. 16 does not prohibit the Minister or his/her designate from including both types of evidence in a single certificate.

[19]         It follows that I do not accept the defendant’s submission that the Minister’s Certificate is non-compliant with s. 16 of the HCCRA. The authorities they cite for the consequences of non-compliance, largely drawn from the criminal law context, therefore have no application.

[20]         The defendant also objects to the Minister’s Certificate on the basis that it does not contain the information or facts required by ss. 16(1) and (2). In considering this objection, it is useful to note again what the two sections require:

a)    Section 16(1) deals with health care services received, or likely to be received in the future, by a beneficiary as a result of a wrongful act. The certificate creates a rebuttable presumption that the listed services are attributable to the wrongful act (MacEachern para. 27):

b)    Section 16(2) deals with the costs of the past and future health care services attributable to the wrongful act and the certificate constitutes conclusive, irrebuttable, proof of those costs (MacEachern at para. 27).

[21]         The two different types of information are dealt with separately in s. 16 for good reason. With respect to the health care services addressed in s. 16(1), it is conceivable that a defendant might take issue with whether a specific service is in fact attributable to the wrongful act in issue, or is the result of a separate and unrelated cause. Such disputes regularly arise in the context of special damages claims and claims for cost of future care in personal injury actions. For this reason, the presumption created by a certificate issued pursuant to s. 16(1) may be rebutted by evidence to the contrary.

[22]         Information concerning the costs of health care services, which is addressed in s. 16(2), is of a different nature. As can be seen in the appendix attached to the Minister’s Certificate, costs are attributed to each specific health care service provided by an identified health care practitioner. While there is no evidence on this point, it can fairly be assumed that these costs are set pursuant to established tariffs and there is little room for debate about the accuracy of the costs. For this reason, a certificate issued pursuant to s. 16(2) is deemed to be conclusive proof of the costs.

[23]         Returning to the Minister’s Certificate here, I agree with the defendant that the language used does not track directly with the wording of ss. 16(1) and (2). It is not clear why that is as it would be relatively straight forward to simply provide the information in the manner contemplated by ss. 16(1) and (2) and in the language used therein.

[24]         That said, I am satisfied that the somewhat unartfully drafted Minister’s Certificate nonetheless conveys the information required by ss. 16(1) and (2). As noted, the first paragraph of the Minister’ s Certificate, after the preamble, certifies that Appendix “A” to the certificate sets out the “health care services claim” for the plaintiff for “personal injuries suffered as a result of the negligence or wrongful act or omission of a wrongdoer on or about 2015/02/17” (emphasis removed).

[25]         Again, “health care services claim” is defined to mean “a claim for the recovery of the past and future costs of health care services attributable to [the specified] personal injury”. The definitions of “past cost of health care services” and “future cost of health care services” make it clear that the specified costs are the costs of the health care services attributable to the personal injury. Further, Appendix “A” to the Minister’s Certificate, which sets out the various health care services and the associated costs, clearly identifies the plaintiff as the beneficiary as well as the date of the subject personal injury. In my view, it is clear to anyone reading the Minister’s Certificate that it identifies the health care services received by the plaintiff in respect of the personal injuries that were the subject of this litigation and the costs of those services, i.e. the information required by ss. 16(1) and (2).

[26]         The defendant seeks to distinguish between a “claim” for recovery of health care costs, which is what it says is set out in the Minister’s Certificate, and a certification that the health care services were received by the plaintiff, which is what is required under s. 16(1). The defendant submits that the former is in the nature of a pleading whereas the latter is a material statement of fact.

[27]         In the context of the HCCRA and the Minister’s Certificate, this is a distinction without a difference. Under the HCCRA, the only claim that may be advanced, either by the beneficiary (ss. 2 and 3) or by the government (ss. 7 and 8), is for recovery of the costs of health care services received by the beneficiary that are attributable to a wrongful act. The intent of a certificate issued under s. 16 is to identify both the relevant services and the associated costs. By listing the health care services and the costs in the appendix to the certificate, the Minister or his/her designate is stating the necessary material facts. Again, as I noted in para. 25 above, this should be clear to anyone reading the Minister’s Certificate.

[28]         I find that the Minister’s Certificate complies with s. 16 of the HCCRA and is therefore admissible.

 

Health Care Costs Recovery Act, Mr. Justice Skolrood, Woo v. Creme De La Crumb Bakeshop & Catering Ltd

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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