2013 QCCQ 10359, 2013 QCCQ 10359

Medical Logistics Management Inc. (Airevac international Inc.) c. CanAssistance 2013 QCCQ 10359 COURT OF QUEBEC Division Pratique CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL N°: 500-22-204109-139 DATE : September 3, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ medical logistics management inc. doing business as airevac international inc. Plaintiff vs.

CANASSISTANCE and LEANNE DRECUN Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Defendant Canassistance (" Canassistance ") submits a Motion to Dismiss Plaintiff's Action on the ground that Plaintiff has no interest (article 165(3) of Code of Civil Procedure (" C.C.P.

"), and that there is no lien de droit between Canassistance and Plaintiff even if the facts alleged are true (article 165(4) C.C.P.). [ 2 ] The Amended Motion to Introduce Legal Proceedings alleges, inter alia , that in March 2013, Plaintiff provided air ambulance services in Costa Rica, to Defendant Leanne Drecun (" Mrs. Drecun "). She presented Plaintiff with a document (P-3) entitled " Travel Insurance/Assurance voyage ", with the logos and names: Blue Cross Croix Bleue, Blue Cross Blue Shield, CanAssistance, and indicating a contract number. [ 3 ] Prior to her transportation, Mrs.

Drecun executed a " Consent to transport and care " (P-2), containing the following: " STATEMENT OF FINANCIAL RESPONSIBILITY I understand that there is no commitment of financial assistance from any third party, including but not limited to insurance companies. Medicare, Medicaid, employers, health care service plans, or workers compensation carriers.

I further understand and signify by my signature that I will be responsible for payment of any provided services not covered by the applicable third party, including those charges deemed "not medically reasonable and necessary" by medicare or any other insurance carrier. I promise to pay all interest, penalties, service charges and reasonable attorney/court fees incurred in collection of the account to the maximum allowed by the law.

AUTHORIZATION TO PAY INSURANCE BENEFITS I authorize payment directly to Medical Logistics Management Inc. and all physicians for fees, which relate to this period of emergency care, transportation and hospitalization." [ 4 ] She also signed an " Air Ambulance Billing Authorization and Privacy Acknowledgement Form - AirEvac International " (P-2) stipulating: "FINANCIAL AGREEMENT and ASSIGNMENT of BENEFITS for DIRECT PAYMENT: I request and authorize that payment of Medicare, Medicaid and any other Insurance benefits be made on my behalf to AirEvac International for any services provided to me by AirEvac International now or in the future.

I understand that I am financially responsible for all charges for services rendered to me by AirEvac International, including any balance remaining after payment of possible insurance benefits. I agree to remit to AirEvac International any payments that I receive directly from insurance or any source whatsoever for the services provided to me and I assign all rights to such payments to AirEvac International. I authorize AirEvac International to appeal payments denial or other adverse decisions on my behalf without further authorization.

I authorize and direct any holder of medical information or documentation about me to release such information to AirEvac International and its billing agents, and/or the Centers for Medicare or Medicaid Services and its carriers and agents, and/or any other payers or insurers as may be necessary to determine these or other benefits payable for any services provided to me by AirEvac International, now or the future.

A copy of this form is as valid as the original." [ 5 ] Plaintiff, who operates under the name " Air Evac " and " Air Evac International " (P-0.1), completed and forwarded to Defendant Canassistance a " Health insurance claim form " (P-4.1) for $56,760. [ 6 ] On June 4, 2013, Canassistance issued a cheque to the order of Plaintiff, for the amount of $0.00 USD, that was attached to a

document (P-5) bearing the logo and name CanAssistance; indicating that Mrs. Drecun was the "Claimant/Insured" and "Policyholder"; comprising a

section "Calculation of benefits" with columns entitled "submitted", "excluded" and "deductible"; and stipulating the following remark: "01 Under this policy, benefits will be paid for reasonable and customary expenses incurred following an emergency resulting from an accident or sudden illness which occurs on a trip during the period of coverage. following the analysis of invoice no: dre030613 , taking into account the type of service, transport and distance, these charges are not considered reasonable and customary. we reviewed pass ( sic) invoices for the same type of service and distance which the rates varied between $7000 & $9000 usd and conclude that airevac international dba medical logistics management is charging us nine (9) times what we have paid in the pass ( sic) for the same services. thus, we can not agree to pay the requested amount, should you modify pricing to reasonable and customary charges for this type of transport, we will gladly reopen the case." [ 7 ] At this early stage of the proceedings, the Court must be cautious prior to dismissing an action. [ 8 ] Plaintiff claims that its interest resides in the contractual relationship that was established when Mrs.

Drecun requested Plaintiff's services. According to Plaintiff, it can invoke the rules of delegation, under articles 1667 to 1670 of Civil Code of Quebec (" C.C.Q. "), to obtain payment not only from Mrs. Drecun, but also directly from Canassistance. [ 9 ] In Les Obligations [1] , Mes Pierre-Gabriel Jobin and Nathalie Vézina write (citation omitted): "La délégation est une institution fort importante en matière de commerce, puisqu'elle sert à expliquer le fonctionnement de différents mécanismes de paiement, notamment la lettre de crédit et, jusqu'à un certain point, le chèque et la lettre de change 2 .

Elle peut survenir de façon ponctuelle entre des personnes qui ne sont pas antérieurement liées entre elles par des rapports juridiques… La plupart du temps toutefois, elle se produit dans le cadre de relations préexistantes entre le délégant et le délégué, par exemple lorsque le délégué s'engage, moyennant contrepartie du déléguant, à fournir un financement qui facilitera les relations d'affaires de ce dernier avec le créancier- délégataire 4 ." [ 10 ] The facts and the documents presently alleged are sufficient to allow Plaintiff to proceed to trial in order to obtain the factual clarifications that may be required by the Court prior to definitively deciding the validity of Plaintiff's legal argument. [ 11 ] Plaintiff also invokes

article 2501 C.C.Q. to justify its recourse. Considering that this judgment will not be final with respect to the legal issues raised by Canassistance to obtain the dismissal of the action, the Court deems more appropriate to refrain from commenting on the applicability of

Article 2501 C.C.Q. at this stage. [ 12 ] Canassistance also asks the Court to dismiss the action on the ground that it is not and cannot be Mrs. Drecun's insurance company, although Canassistance's attorney concedes that Canassistance Inc. is a subsidiary of an insurance company, namely " Canassurance Compagnie d'Assurance ". [ 13 ] The Statement from the " Registre des entreprises " (P-4) reveals that amongst the other names used in Quebec, Canassistance Inc. uses the trademarks Blue Cross, Canassistance, Croix Bleue.

Those are names mentioned on the Certificate (P-3), where there is no indication confirming the role and/or involvement of " Canassurance Compagnie d'Assurance ". [ 14 ] The Defendant that was assigned is " Canassistance ", having a place of business at 550 Sherbrooke West, which also happens to be the address, indicated at the register (P-4) for its shareholder, Canassurance Compagnie d'Assurance. [ 15 ] As far as Plaintiff is concerned, nothing has yet been alleged or presented to establish that Canassistance, which issued a cheque to Plaintiff, has no legal obligation towards Plaintiff as a result of the documents (P-2). [ 16 ] The legal relationship between Canassistance and Canassurance Compagnie d'Assurance and Mrs.

Drecun may reveal that there is a need to amend the name of the corporate Defendant or even to add a Defendant, but at this stage, considering

article 292 C.C.P. and that Plaintiff's action is far from being statute barred, it would not be in the interest of justice or in conformity with

Article 4.2 C.C.P. to dismiss Plaintiff's action for this reason. [ 17 ] Even if no formal appearance has yet been filed for Mrs. Drecun, Plaintiff's attorney mentioned to the Court that an attorney from outside Quebec has contacted him. The Court expects Plaintiff's attorney to transmit this judgment to the attorney in question and hopes that Mrs. Drecun will realize the importance of obtaining adequate legal representation in this province. [ 18 ] FOR THESE REASONS, THE COURT: [ 19 ] DISMISSES Canassurance's Motion to Dismiss Plaintiff's Action; [ 20 ] The whole, with costs to follow suit. __________________________________ Martine l. TREMBLAY, J.C.Q. Me Felipe Morales

COLBY, MONET, DEMERS, DELAGE & CREVIER Procurer of Plaintiff Me Élizabeth Laroche HEENAN BLAIKIE Procurer of Defendants Date of hearing: August 26, 2013