HMTQ v. Translink Date:, 2012 BCPC 304

Citation: HMTQ v. Translink Date: 20120621 2012 BCPC 0304 File No: 1029231 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA CLAIMANT AND: BRITISH COLUMBIA RAPID TRANSIT COMPANY LTD., GREATER VANCOUVER TRANSPORTATION AUTHORITY, doing business as TRANSLINK, JOHN DOE 1 & JOHN DOE 2 DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.O'C. WINGHAM Counsel for the Claimant: Mr. E. Ross Counsel for the Defendants British Columbia Rapid Transit Company Ltd. and Greater Vancouver Transit Authority, dba Translink: Mr. T. Gopel and Ms. C. O’Neill

Place of Hearing: Vancouver , B.C. Date of Hearing: March 27, 2012 Date of Judgment: June 21, 2012 INTRODUCTION [ 1 ] The Claimant, Her Majesty the Queen in Right of the Province of British Columbia ("the Province") claims the sum of $25,000 which it says are the costs of past and future healthcare services which have been or will be paid by it on behalf of Debra Brack who sued the Defendants in the Supreme Court of British Columbia for injuries she claimed she suffered as a result of a fall on property owned and operated by the corporate Defendants. The Province’s claim is brought under

section 13 of the Health Care Cost Recovery Act (the “Act”) [ 2 ] The Defendants say that

section 13 of the Health Care Cost Recovery Act does not apply because Ms. Brack’s action in the Supreme Court was commenced prior to the Act coming into force and that the Act should not be construed to apply retroactively to actions brought before it came into force. They say that the Province’s claim should be dismissed.

FACTUAL BACKGROUND [ 3 ] The factual background to this claim is not contested. [ 4 ] On February 16, 2007 Debra Brack commenced an action against the Defendants in the Supreme Court of British Columbia claiming damages for injuries she alleged that she suffered as a result of a fall on July 18, 2007 at the Burrard Street Skytrain station in Vancouver, British Columbia. In that action she alleged that she had slipped and fallen on a wet

section of an escalator on premises owned or occupied by the corporate Defendants and that she suffered injuries as a result. [ 5 ] On April 1, 2009 the Health Care Cost Recovery Act came into force. On August 12, 2009 counsel for Deborah Brack provided notice of a legal proceeding to the Province under the provisions of that Act.

On that same date counsel for the Province responded to counsel for Deborah Brack advising that notice of the legal proceedings was not required as the action had been started before April 1, 2009 but that notice of any settlement must be provided to the Province at least 21 days before any such settlement is entered into. [ 6 ] On February 5, 2010 the Province commenced this action in which it claimed the costs of past and future health care relating to any injuries which Deborah Brack may have suffered as a result of the slip and fall she took at the Burrard Street Skytrain station on February 16, 2007. [ 7 ] In December, 2010 the Defendants and Deborah Brack settled the Supreme Court Action.

On January 6, 2011 counsel for Deborah Brack advised the Province that the Supreme Court Action had been settled. On January 13, 2011 a consent dismissal order was entered into in the Supreme Court action. ISSUES [ 8 ] The Province submits that because the Defendants did not provide notice to the Province of the proposed settlement before it was entered into the Province has a right to recover from the Defendants the total amount of past and future costs of healthcare services relating to Deborah Brack's injuries. The Province relies on

section 13, and in particular, subsections 13 (1) (

a) and (

b) and subsections 13 (5) (

a) and (

b) of the Health Care Cost Recovery Act . [ 9 ] The Defendants submit that the Health Care Cost Recovery Act does not apply to claims which were commenced before the coming into force of that Act and, therefore, the Defendants had no obligation to provide notice to the Province of the settlement of Debra Brack's claim and that the government has no right to recover from the Defendants under section 13 (5) of the Health Care Cost Recovery Act . [ 10 ] The Province submits that section 24 (1) of the Act provides that the Act applies to any personal injury suffered whether before or after that subsection comes into force. It submits that because

section 13 is not specifically referenced in subsection 24

(2) section 13 must have been intended by the legislature to apply retrospectively. LEGISLATIVE FRAMEWORK [ 11 ] The relevant provisions of the Health Care Cost Recovery Act are as follows:

Definitions 1 In this Act:

"beneficiary" has the same meaning as in the Medicare Protection Act ; "wrongdoer" means (

a) a person whose negligent or wrongful Act or omission causes or contributes to a beneficiary's personal injury or death, and (

b) a person who is responsible at law for the Acts or omissions of a person referred to in paragraph (a), but does not include the beneficiary. Settlement of claims 13

(1) A claim against a person alleged to be the wrongdoer for damages arising from or related to a beneficiary's personal injury or death must not be settled unless (

a) the person who would be liable to make payments under the proposed settlement gives to the minister notice of the proposed terms of settlement, in the prescribed form and in accordance with the regulations, if any, under section 25 (2) (d) [regulations] , and (

b) the minister consents in writing to the proposed settlement.

(2) If the proposed settlement referred to in subsection (1) (

a) is a settlement requiring approval of the court under the Class Proceedings Act, the person referred to in subsection (1) (

a) must (

a) give the minister the notice under that provision, and (

b) receive the minister's written consent under subsection (1) (

b) before filing with the court any application for the approval of the court under that Act.

(3) Before consenting under subsection (1) (b), the minister may request the person referred to in subsection (1) (

a) to provide the minister with any records or information that the minister considers necessary to evaluate the proposed settlement as it relates to the government's recovery of past and future costs of health care services in respect of the beneficiary.

(4) A person receiving a request by the minister under subsection (3) must comply with that request in the manner and before the date specified in the request.

(5) If the person referred to in subsection (1) (

a) does not give notice in accordance with that provision, (

a) the government has the right to recover from that person the total amount of the past and future costs of health care services relating to the beneficiary's injury, (

b) the total amount of the past and future costs of health care services referred to in paragraph (

a) may be recovered as a debt due from that person to the government, and (

c) section 17 [joint and several liability] does not apply.

(6) The person liable to make payments required under the proposed settlement must submit to the minister, within the time period provided under subsection (7), the full amount of the settlement that is, in the proposed terms of settlement referred to in subsection (1) (a), designated as being attributable to the cost of the applicable health care services.

(7) The time period referred to in subsection (6) is the 60-day period following the date of the minister's consent under subsection (1) (

b) or such longer period as may be approved by the minister on request of the person who is liable to make payments required under the settlement.

(8) Any release given in relation to a claim referred to in subsection (1) is void unless (

a) the person to whose benefit the release is given gives to the minister, in accordance with the regulations, if any, under section 25 (2) (d) [regulations] , written notice of the proposed terms of the release, and (

b) the minister consents in writing to the release.

(9) This

section applies whether or not a legal proceeding has been commenced in relation to the health care services claim. Application of this Act 24

(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.

(2) The requirements of sections 3 [obligation to claim] , 4 [requirement to notify government of claim] and 5 [final disposition of claim or legal proceeding] do not apply in relation to legal proceedings commenced before 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 , (

b) personal injury or death arising out of a tobacco related wrong as defined in the Tobacco Damages and Health Care Costs Recovery Act , or (

c) personal injury or death arising out of and in the course of the beneficiary's employment if compensation is paid or payable by the Workers' Compensation Board out of the accident fund continued under the Workers Compensation Act .

(4) In subsection (3) (c): "compensation" includes a health care benefit provided under the Workers Compensation Act ; "personal injury" includes occupational disease as defined in the Workers Compensation Act . CASE LAW [ 12 ] In Gosselin v. Sheppard , [2010] BCJ No. 2491 (BCSC) Sewell, J. considered an application by the plaintiff to amend her pleadings to add a claim under

section 2 of the Health Care Cost Recovery Act .

Section 2 of that Act permits a beneficiary to advance a claim on his or her own for the recovery of healthcare costs. In that case the limitation date for the government to bring its own application for recovery of health care costs under

section 8 of the Act had expired. [ 13 ] In Gosselin the injury complained of had occurred on June 7, 2005 and the action in the Supreme Court for damages as a result of that injury had been commenced on March 1, 2007, over two years before the coming into force of the Health Care Cost Recovery Act . The case considered whether the Act applied retroactively to the beneficiary's right under

section 2 to bring an action to recover healthcare costs.

There was no such right existing before the Act came into force so the result would be that a new right would be created retroactively. [ 14 ] The Defendants in the Gosselin case argued that the Health Care Cost Recovery Act did not apply to actions which had been commenced prior to the coming into force of the Act. [ 15 ] The Court considered a similar argument by the government as made in this case in relation to the meaning of sections 24 (1) and (2) and determined that section 24 (1) is not clearly and unambiguously intended to apply to actions commenced before the Act came into force. [ 16 ] The Attorney General for British Columbia, who obtained intervener status in that action, argued, as the Province does in this case, that section 24(1) of the Act makes it clear, subject to subsection (2), that the Act applies to actions commenced before the coming into force of the Act.

It submitted that subsection (2) exhaustively sets out all of the exclusions to the applicability of the Act to personal injuries which occur before the Act came into force and that because

section 2 of the Act was not excluded by section 24 (2) the Act must have been intended to apply retrospectively to that section. [ 17 ] Sewell, J. concluded that the Act was not clearly and unambiguously intended to apply to actions commenced before that Act came into force. At paragraphs 33 through 37 he stated: 31 The Attorney General submits that s. 24(2) of the Act exhaustively sets out all exclusions to the applicability of the Act to personal injuries which occurred before the Act came into force. Therefore any provision of the Act not expressly excluded from the provisions of s. 24(1) must be taken to be retrospective.

Section 2 of the Act is not so excluded and must therefore have been intended to apply retrospectively. 32 If the Attorney General's submissions are correct s. 2 applies retrospectively to permit an amendment to add a claim for the cost of health care services in any existing Action regardless of when the personal injuries were suffered. 33 However, as noted above, s. 24(1) deals with the application of the Act in relation to personal injuries suffered by a beneficiary whereas s. 24(2) deals with the applicability of the Act to legal proceedings.

Section 24(2) excludes the application of the Act from legal proceedings commenced prior to the Act coming into force in virtually every respect. In particular such actions are not subject to the obligation to include a health care services claim, the requirement to notify the government of the existence of the claim, the requirement to notify the government of the final disposition of the claim, the obligation of the Court not to dispose of a claim without being satisfied that the government has been given written notice of the application and the right of the government to intervene in the legal proceedings.

In addition, s. 20 would appear to have no application to a legal proceeding by a beneficiary which is not subject to s. 3 of the Act . 34 It is difficult to discern any reason why the legislature would have intended to permit a beneficiary to amend her action to add a claim under s. 2 but exclude that claim from the balance of the provisions of the Act dealing with the conduct of claims for the cost of health care services. It is also to be noted that s. 2(1), which permits a beneficiary to recover the cost of health care services from a wrongdoer, is made expressly subject to ss. 6, 20 and 23 of the Act .

However s. 6 by its express terms applies only in relation to a legal proceeding referred to in s. 3(1). This is also the case with respect to s. 20(2) and s. 20(3) which deal only with judgments awarded in a legal proceeding referred to s. 3(1), or claims proceeded with directly by the government. 35 It seems to me that if the argument of the Attorney General is accepted the exposure of a defendant to a health care services claim will be entirely in the hands of a plaintiff and who has no obligation to make such claim and who cannot obtain any benefit from the advancement of such claim.

This seems to be an anomalous result. 36 Not only is this result anomalous but it seems to me that it may well be very substantial. In this case, the costs exceed $200,000. The threat of amending pleadings to bring such a claim may well pressure a defendant to enter into a settlement agreement in respect of

amounts that that defendant may not be justly obligated to pay. At the very least, the

interpretation urged by the Attorney General willresult in some defendants being exposed to claims for health care services costs and other defendants not being exposed to those costs,dependant entirely on the whim of individual plaintiffs. 37 My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced beforethe Act came into force.

The presumption against retrospectivity set out in the cases referred to above together with the internalindications in the Act itself lead me to conclude that s. 2 of the Act has no application to Actions commenced prior to the Act cominginto force. [18] Concurrently with his decision in Gosselin, Sewell, J. decided Fong v. Deglan, 2010 BCCA 450 , [2010] BCJ No.2015 (BCSC). At paragraphs 3 and 4 he stated: 3 In my view the issues raised in this application are identical to those raised in New Westminster Registry Action No. S104306.

Forthe reasons which I set out in that application I order that this application be dismissed. 4 In this case the defendants raised an additional ground for opposing the amendment based on the pendency of the trial date. As Ihave decided that the Act has no application to Actions commenced prior to its effective date I do not find it necessary to deal with thatadditional ground. [19] The decision in Gosselin was referred to and followed in Jack v. Tekavec, [2010] BCJ No. 2491.

At paragraph 106 of thatdecision Savage, J. stated "in this case the matter was not pleaded and at this stage the Defendant is self-represented. The Action wascommenced in 2007. Following Gosselin I find that the Health Care Cost Recovery Act does not apply to this action, as this action wascommenced prior to that Act coming into force." ANALYSIS [20] In both the Gosselin and the Fong cases the Court considered an application by the plaintiffs to amend their statements of claimto add a claim pursuant to section 2 (1) of the Act.

The question before the Court was whether the Health Care Costs Recovery Actoperated retrospectively to allow a plaintiff to bring such a claim where the government could no longer bring the claim on its own giventhe limitation provisions of

section 8 of the Act. Similarly, in the Jack case the plaintiff filed a claim under the Health Care CostsRecovery Act after the oral hearing and argument had been made. [21] As noted in Gosselin, at para. [33], s. 24(1) of the Act deals with the application of the Act to personal injuries, while s. 24(2)deals with the application of the Act to legal proceedings. [22] In considering the application of sections 24 (1) and (2) and

section 13 of the Act I must consider the principle that legislaturesdo not intend to produce absurd consequences in the drafting of legislation. In Rizzo v. Rizzo Shoes Ltd. (SCC), [1998]1 S.C.R. 27 (SCC), Iacobucci, J. stated, at para. [27]: 27 In my opinion, the consequences or effects which result from the Court of Appeal's

interpretation of ss. 40 and 40a of the ESA areincompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a wellestablished principle of statutory

interpretation that the legislature does not intend to produce absurd consequences. According to Côté,supra, an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable orinequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (atpp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to

interpretations which defeat the purposeof a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). [23] At issue in this case is whether the provisions of

section 13 of the Act apply retrospectively even though an action had beenstarted prior to the Act coming into force. [24]

Section 13 of the Act is not limited to settlements of claims where an Action has been commenced. Section 13 (9) of the Actprovides: 13

(9) This

section applies whether or not a legal proceeding has been commenced in relation to the healthcare services claim. [25] There may be cases where a beneficiary within the meaning of the Act settles a claim for personal injury without an Actionbeing commenced. If that occurs after the Act came into force the operation of section 24 (1) and

section 13 would require notice of thesettlement to be provided. The Act, in my view, is clear that it applies to any injury suffered by a beneficiary whether before or after theAct comes into force (section 24 (1)). [26] Similarly, a settlement may occur even though an Action has been commenced. In such a case, while the provisions of the Actdealing with the need to make a claim for healthcare costs (section 3), notice of the proceeding (section 4) and notice of the finaldisposition of the legal proceeding may not apply, the minister’s right to notice of the proposed settlement under

section 13 of the Act isunaffected.

[27] To conclude otherwise would, in my view, be illogical and would be inconsistent with the object of the statute, that being therecovery of costs paid by the government to a beneficiary under the Act where those costs are incurred as a result of the wrongdoing of athird-party.

The result would be that if a beneficiary commenced an action before the coming into effect of the statute the minister wouldnot be entitled to notice of any proposed settlement while if the beneficiary entered into negotiations without litigation having beencommenced and entered into a proposed settlement the minister would be entitled to notice of the proposed settlement and, failing suchnotice, would be entitled to bring an action against the person liable to pay under the proposed settlement. [28] I conclude that the mere fact that litigation was commenced prior to the coming into force of the Act does not disentitle tominister to notice under

section 13 of a proposed settlement. ABROGATION OF COMMON LAW RIGHTS [29] The Defendants also submit that the provisions of

section 13 of the Act directly affect the common law right of parties to enterinto a private contract or settle a private dispute. The Defendants submit that in order to do so the legislature would have to express itsintentions in that regard with "irresistible clearness" [Rawluk v. Rawluk (SCC), [1990] 1 SCR 70 (SCC); GoodyearTire & Rubber Co. of Canada Ltd. et al v. T. Eaton Co. Ltd. et al (SCC), [1956] SCR 610(SCC)]. [30] In my view the wording of section 24 (1) and

section 13 make it irresistibly clear that the legislature intended to require noticeof a proposed settlement of a personal injury claim to be provided to the minister whether or not a legal proceeding has been commencedin relation to that claim and whether the claim arose before or after the coming into effect of the Act.

CONCLUSION [31] I conclude that the Defendants and Deborah Brack entered into a settlement of a personal injury claim within the meaning of theHealth Care Costs Recovery Act and that the Defendants failed to provide notice of the proposed settlement to the Province undersection 13 (1) of that Act. Consequently, I conclude that the Province has a right, under section 13(5) of the Act to recover from theDefendants the total amount of past and future costs of healthcare services relating to Ms.

Brack's injury. [32] The issue as to the quantum of those costs remains to be argued and I direct the parties to attend with the judicial case managerto fix a date to argue the issue of quantum of costs. ___________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia