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:
Reasons for judgment were published this week by the BC Supreme Court concluding that a trial court’s findings of liability are binding in subsequent Health Care Costs recovery prosecutions undertaken by the Province.
In the recent case (British Columbia v. Tekavec) the Defendant owned an apartment building. A guest fell from the balcony and sued for damages. The Defendant was found liable and ordered to pay damages. Prior to trial the Province initiated collateral proceedings under the HCCRA. They did not participate in the tort trial. After trial they continue the HCCRA prosecution against the Defendant. The Defendant brought an application to strike the Claim. Mr. Justice Bracken held that the action can continue and further that Defendant cannot re litigate the issue of liability as it was fully canvassed in the tort trial. In reaching this conclusion the Court provided the following reasons:  While the Province could have joined in the original action to fully advance its claim, it chose not to. Perhaps that decision resulted from the conclusion in Gosselin that the Act did not apply to the injuries Mr. Jack suffered before the Act came into force so the Province concluded it could not take an active role in the original action and had to proceed with an independent action.  Whatever the reason, it seems clear that the court in the original action thoroughly canvassed the issues the defendant has raised in its Response to Civil Claim filed in this action. I accept that the Province was sufficiently privy to the original action to engage the doctrine of issue estoppel. The Province had a right to participate with the plaintiff and had a participatory interest in the outcome. If the court had determined that the defendant was not negligent that outcome would have bound the Province for the purposes of this proceeding.  The defendant referred to MacIver v. The Queen, 2005 TCC 250, as support for its submission; however, that case is distinguishable on its facts and was not a case where conclusions were reached after a full trial on the very issues the defendant wishes to raise again in this action. It is not appropriate to allow the same issues to be canvassed again in this action.  The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal. I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.
Further to my previous posts addressing the implied undertaking of confidentiality, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing whether the undertaking for documents produced in a tort action should be set aside for a subsequent prosecution under the Health Care Costs Recovery Act.
In this week’s case (British Columbia v. Tekavec) the Defendant was found liable for damages after an individual fell from a balcony in a building owned by him. He was ordered to pay over $322,000 in damages. The BC Government then sued the Defendant seeking recovery of their Health Care Costs.
In the course of the lawsuit the Government requested production of certain documents which were created in the initial litigation such as examination for discovery transcripts. The Defendant refused to provide these arguing they were subject to the implied undertaking of confidentiality. The Court held that in these circumstances it was appropriate to order production. In doing so Mr. Justice Williams provided the following reasons: 11] It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced. The undertaking is essentially perpetual: it survives the resolution of the litigation in which the discovery was made. The restriction can be modified only by court order or with the consent of the party with whom the material originates.  The principle is authoritatively articulated in Juman v. Doucette, 2008 SCC 8, and the underlying rationale is discussed there at some length. For the purpose of the present discussion, there is no point to delving into that.  Where a court order is sought to relieve against the implied undertaking, the applicant will have the onus of satisfying the court on a balance of probabilities that the interest to be advanced through the sought-after disclosure is greater than the values that underpin the rationale for the implied undertaking. Central to the analysis will be a careful consideration of any prejudice that will be caused to the party who initially provided the material at issue. Of course, it goes without saying that the material must be relevant to the issues in the action in which the disclosure is sought… 29] In the matter at hand, it is my conclusion that the circumstances warrant an order overriding the protection of the implied undertaking. The basis for so deciding is that, while the applicant HMTQ was not a party to the original action, the principal issue in the present action is compellingly similar to the issue there: was Mr. Tekavec responsible for the injuries that were sustained by Mr. Jack? I note as well the following: Mr. Jack has apparently indicated that he has no objection to the materials being disclosed to the applicant. There would be no prejudice to Mr. Jack if the materials were to be disclosed. Finally, the same questions and topics that were canvassed with Mr. Tekavec in the examination for discovery at issue could be quite properly raised in his examination for discovery in the present action. In effect, disclosure of the materials represents a proper means of proceeding more efficiently.
(Please Note: I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)
As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.
Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.
In today’s cases (Fong v. Deglan andGosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases. Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date. Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.
Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed. The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009. Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:
 My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force. The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.
 I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.
 I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced. It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so. In these circumstances I consider the amendment to be useless and unfair to the defendants.
 In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:
• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.
 In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.
 Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs. However I do not consider it to be appropriate for the Court to impose moral obligations on defendants. The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services. I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.
 The application to amend is therefore dismissed.
Further to my previous posts on the BC Health Care Costs Recovery Act (click here for background information) I recently received clarification from the Ministry of Health Services about their position regarding the HCCRA’s applicability to ICBC Injury Claims where the Defendant is insured with ICBC but in breach of their policy.
After settling a recent claim ICBC’s lawyer and I requested clarification as to whether the Act applied.
I contacted Barbara Carmichael, a lawyer with the Legal Services Branch of the Ministry Attorney General. Ms. Carmichael explained that the Governments position is that the HCCRA does not apply to these claims because Defendants in breach of insurance have an effective policy in place at the time “the injury is caused” thereby triggering the exception set out in 24(3)(a) of the Act.
Ms. Carmichael further explained that in cases where a Plaintiff is injured by an unidentified motorist or by an uninsured motorist (as opposed to a breached motorist) the Ministry takes the position that the HCCRA does apply. (Click here to read my previous post discussing the HCCRA and Breach of Insurance situations where I conclude that it appears the Act applies but question whether any money needs to be paid under the HCCRA given the statutory deductions under s. 106 of the Insurance (Vehicle) Regulation). It will be a welcome development if the BC Supreme Court gets a chance to address this issue and clarify the application of the law in uninsured and unidentified motorist situations.
I hope the above information is of value to other BC injury lawyers or people prosecuting their own claim where the Defendant is alleged to be in breach of their policy of insurance with ICBC.
Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act. It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.
A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance. In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs. (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).
Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.
Section 24 of the Health Care Costs Recovery Act holds in part that:
(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….
(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to
(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,
So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer”does not have “coverage under the plan“. If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced. Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.
Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.
If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.
For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”
It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘. So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation. Clear as mud folks?
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.
Very important legislation is coming into force in April 1, 2009 that applies to many BC Personal Injury Claims. The new legislation is the Health Care Costs Recovery Act (and the Health Care Costs Recovery Regulation) and all BC Personal Injury Lawyers and people advancing their own BC Personal Injury Claims need to be familiar with this new law.
In a nutshell this act applies to all BC Injury Claims except for claims where the defendant is insured with ICBC, litigation under the Tobacco Damages and Health Care Costs Recovery Act and WCB Claims. If you are advancing an applicable BC Personal Injury Claim after April 1 and are covered by MSP you must advance a claim for the cost of past and future health care services.
Section 3 of the act requires that people with applicable claims, whether or not they have a lawyer, must “include a health care services claim in that legal proceeding”
Section 4 requires Notice to the Government after you start your lawsuit in BC Supreme Court. This applies whether or not you have a lawyer for your BC Personal Injury Claim. Spcifically this section states that the government must be notified of applicable claims “within 21 days after commencing a legal proceeding referred to in section 3(1), written notice of the legal proceeding must be given to the government“.
Section 5 of the act is perhaps the most important which stats that “a legal proceeding referred to in section 3(1) must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court.”
This Act requires people with applicable BC Personal Injury Claims to advance a claim on behalf of the Government for recovery of their past and future health care costs and to not settle a claim without the governments permission first.
In addition to the above the Act has some unique sections requiring co-operation with the government and giving the government significant power to intervene in current lawsuits. This law will change the way BC Personal Injury Claims are prosecuted and advanced by lawyers and non-lawyers and it is vital that people become quickly familiar with this new law.
One of the biggest concerns I have as a BC Personal Injury Lawyer is that this Act will create a lot of red tape in the settlement of BC personal injury claims. I have developed a pro-active practice of notifying the government of applicable claims even before the legislation requires to minimize the red tape that will now be involved with claim settlement. If you are advancing an applicable claim, with or without a lawyer, I suggest you do the same because the Governments involvement in the settlement process will undoubtedly add delay to the settlement of many BC personal injury claims.
If you have an active BC Personal Injury Claim that is not settled by April 1, 2009 or if you advance a Claim after April 1, 2009 you need to comply with this new law. If you have a lawyer you should make sure that your Injury Claim Lawyer is familiar with this new law as it may apply to your claim. Lastly, if you are advancing your own Injury Claim and have questions about how this will effect your claim seek legal advice promptly because this act imposes significant obligations that must be complied with.
If you would like further information or require assistance, please get in touch.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.