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Tag: BC personal injury lawyers

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:

[30] 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.

[31] 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.

[32] 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.

More on ICBC Claims Lawyers and ICBC's 'Strategic Alliance Agreement"

Is your ICBC Claims Lawyer also in partnership with ICBC?  Depending on who your lawyer is the answer could be yes. It is very important for any injured person looking to hire a lawyer for their ICBC Injury Claim to ask whether their lawyer has signed ICBC’s SAA.  (for background see my previous article Does your Lawyer act fo ICBC, ask you may be surprised by the answer).
Today the BC Court of Appel released reasons for judgement (Tepei v. ICBC) confirming that lawyers (or law firms) that have signed ICBC’s Strategic Alliance Agreement are in a ‘partnership’ type relationship with ICBC.
In upholding a previous judgement ruling that an arbitrator who signed ICBC’s SAA agreement gave rise to a ‘reasonable apprehension of bias’ in presiding over an ICBC Injury Claim the Court of Appeal said the following about ICBC’s SAA and ICBC’s relationship with lawyers who signed it:

[1]                KIRKPATRICK J.A.: This is an appeal from an order removing an arbitrator and vacating his rulings founded on a reasonable apprehension of bias.  The chambers judge found that the Strategic Alliance Agreement entered into by ICBC and lawyers it retains provided comprehensive terms which emphasized the firm’s commitment to ICBC as “partners” in its enterprise rather than simply as counsel acting from time to time on individual cases.

[2]                For substantially the reasons given by the chambers judge (2007 BCSC 1694, [2008] 3 W.W.R. 664, 78 B.C.L.R. (4th) 95), I would dismiss the appeal.  In my opinion, a reasonable and right minded person would expect the arbitrator to disclose the fact that his firm was a signatory to the Strategic Alliance Agreement and that the arbitrator was the principal contact between his firm and ICBC.  Similarly, the fact that the arbitrator’s firm had signed a Strategic Alliance Agreement would give rise to a reasonable apprehension of bias.

[3]                I am also not persuaded that the chambers judge erred in finding that the respondents’ failure to comply with the rules of B.C. International Commercial Arbitration Centre (Domestic Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre) (“BCICAC”) did not preclude them from claiming relief under s. 18 of   Arbitration Act, R.S.B.C. 1996, c. 55.  Section 18 of the Act permits a party, at any time, to apply to the Supreme Court for removal of an arbitrator who commits “arbitral error”, which would include a reasonable apprehension of bias.  The Act provides remedies wider in scope than a challenge to impartiality and independence under s. 15 of the BCICAC rules, including vacating the arbitrator’s rulings and awards.

[4]                It is obvious that arbitral error is central to the jurisdiction of the arbitrator.  The jurisdiction of the Supreme Court cannot in these circumstances be trumped by the rules of the BCICAC.