Keizer v. Slauenwhite, 2012 NSCA 20

Source: Court of Appeal of Nova Scotia

Date: 2012-02-23

Jurisdiction: Nova Scotia

Docket: CA 343612

Citation: 2012 NSCA 20

Opinion

NOVA SCOTIA COURT OF APPEAL Citation: Keizer v. Slauenwhite, 2012 NSCA 20 Date: 20120223 Docket: CA 343612 Registry: Halifax Between: Erna Keizer Appellant v. Jean Slauenwhite Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: September 14, 2011 Subject: Statutory

Interpretation of

Section 18 of the Health Services and Insurance Act (“ HSIA ”), 1989, R.S.N.S., c. 197.

Summary: The judge of first instance was asked to interpret the HSIA to determine if the Province had a subrogated right to claim for recovery of its costs for nursing home care that arise from injuries suffered in a motor vehicle accident, against a person insured by a policy of third-party liability insurance. The judge found the Province had such a right of subrogation. Issue: Did the judge err? Result: Majority (Hamilton, J.A., Saunders, J.A.) Appeal dismissed. The judge correctly interpreted s. 18 of the HSIA .

He considered the meaning of s. 18(10) in the entire context of s. 18, harmoniously with the scheme of the statute, the object of the statute and the intention of the Legislature, as he was required to do. After taking into account the legislative history of s. 18, he correctly determined that the Legislature intended to give the Province the ability to claim its costs for the same type of health services from all tortfeasors, regardless of whether their third party liability insurers were governed by the levy provided for in s. 18(11). Dissent (Oland, J.A.) Appeal allowed.

The judge erred in his application of the principles of statutory

interpretation. A careful review of the legislative history of s. 18 and the purpose of the HSIA , together with the precise and unequivocal wording of s. 18(10) and the consequences of the

judge’s

interpretation show that the Legislature did not intend that the Province have a subrogated right to claim against a person insured by a policy of third-party liability insurance for recovery of nursing home costs caused by injuries from a motor vehicle accident. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 30 pages. NOVA SCOTIA COURT OF APPEAL Citation: Keizer v. Slauenwhite, 2012 NSCA 20 Date: 20120223 Docket: CA 343612 Registry: Halifax Between: Erna Keizer Appellant v. Jean Slauenwhite Respondent Judges: Saunders, Oland and Hamilton, JJ.A.

Appeal Heard: September 14, 2011, in Halifax, Nova Scotia Held: Appeal dismissed with costs payable to the respondent in the amount of $1,500 plus disbursements as agreed or taxed, per reasons for judgment of Hamilton, J.A.; Saunders, J.A. concurring; Oland, J.A. dissenting Counsel: Scott C. Norton, Q.C., Scott R. Campbell and Leah N.

Grimmer, for the appellant Darlene Wilcott, for the respondent Reasons for judgment : [ 1 ] The question to be answered in this appeal, is whether the Nova Scotia Department of Health (“Province”) has a subrogated right to claim against a person insured by a policy of third-party liability insurance, for recovery of its costs for nursing home care that arise from injuries suffered in a motor vehicle accident. The answer depends on the

interpretation of s. 18 of the Health Services and Insurance Act (“ HSIA ”), 1989 R.S.N.S., c. 197. Ms. Keizer appeals the order of Justice Gregory M. Warner which held the Province has such a right pursuant to s. 18(3) of the HSIA . I would dismiss the appeal largely for the same reasons given by the judge in his decision, now reported at 2010 NSSC 453 . [ 2 ] In his reasons the judge set out the agreed facts: [4] Until December 15, 2004, Jean Slauenwhite, then aged 81, lived alone and independently in an apartment at Musquodoboit Harbour.

That evening, Erna Keizer, then 78, drove her vehicle off the road into a rock cliff. Slauenwhite, a passenger, suffered injuries, including permanent loss of her eye sight. Slauenwhite's injuries prevented her from returning to her apartment. After a lengthy hospital stay, she moved into a retirement residence and assisted living facility. Under its nursing home subsidy program, the Province pays part of Ms. Slauenwhite’s daily nursing home care rate. [5] The defendant admitted liability for the accident and the plaintiff’s injuries.

The parties settled the plaintiff’s personal injury claim, except for the Province’s subsidy of the plaintiff’s nursing home costs. [ 3 ] He carefully explained the complicated legislative history of s. 18. In 1973, at the time the Medical Care Insurance Act and the Hospital Insurance Act were consolidated into the HSIA , the predecessor of s. 18 (s. 13) gave the Province a subrogated right to claim from all tortfeasors, including those involved in motor vehicle accidents, its costs of certain health services provided to injured persons.

By 1989 the types of health services the Province could claim under s. 18 were expanded, again for all tortfeasors. [ 4 ] In 1992 s. 18 was amended, concurrently with amendments to s.107 of the Insurance Act , 1989 R.S.N.S., c. 231.

The amendments to s. 18 now provided that the Province would recover by an annual levy on motor vehicle insurers (s. 18(11)), its costs for health services that arose from a motor vehicle accident where the tortfeasor was insured by a policy of third-party liability insurance (“insured motor vehicle accident”), but would continue to claim by subrogation (s. 18(3)) its costs for the same type of health services that did not arise as a consequence of an insured motor vehicle accident. These 1992 amendments were accomplished by adding ss. 18(10 to 20).

Section 18(10), read in isolation, appears, as the judge found, to except health services costs arising from insured motor vehicle accidents from s.

Section 18(11 to 20) provide the means by which the Province will recover 100% of its costs for the health services covered by the levy that arise from insured motor vehicle accidents. [ 5 ] In 2002 there were further amendments to s. 18 which expanded the type of health services the Province could claim to include, among others, nursing home care. This expansion was accomplished by amending s. 18(1) and adding s.18(21).

Section 18 was also amended in 2002 by repealing s. 18(9) and substituting ss. 18(5A to 5E) for s. 18(5). Section 18(9) had benefitted the liability insurer to the detriment of the Province when a tortfeasor’s insurance was insufficient to satisfy the injured party’s claim, by providing that payment of the policy limits would constitute a full release to the insurer, and the Province could not share in any of the proceeds to cover its costs of providing health services. Section 18(5) had provided that no release or settlement of a claim by an injured party was binding without the Province’s consent. While ss. 18(5A to 5E) contain many provisions, the relevant provision to the

interpretation before us is the requirement that, unless the Province otherwise agrees, any settlement by an injured party must provide that the injured party and the Province will share the settlement amount pro rata in proportion to their respective losses. There is no longer a priority given to the injured party or liability insurer.

[ 6 ] The judge referred to the current provisions of s. 18. They are as follows: 18

(1) Where, as a result of the negligence or wrongful act or omission of another, a person suffers personal injuries for which the person received insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment, home-care services, care for a person in a home for special care or child-care facility to which the Province has made payment, insured professional services under this Act, or any other care, services or benefits designated by regulation, including the future costs of any such care, services or benefits, the person (

a) has the same right to recover the sum paid for the care, services or benefits against the person who was negligent or was responsible for the wrongful act or omission as the person would have had if that person had been required to pay for the care, services or benefits; and (

(2) Where, under subsection (1), a person recovers a sum in respect of insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services received by him under this Act, he shall forthwith pay the sum recovered to the Minister.

(3) Her Majesty in right of the Province shall be subrogated to the rights of a person under this

Section to recover any sum paid by the Minister for insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services provided to that person, and an action may be maintained by Her Majesty, either in Her own name or in the name of that person, for the recovery of such sum.

(4) It shall not be a defence to an action brought by Her Majesty in right of the Province under subsection (3) that a claim for damages has been adjudicated upon unless the claim included a claim for the sum paid for insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment and insured professional services and it shall not be a defence to an action for damages for personal injuries brought by a person who has received insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services that an action taken by Her Majesty under subsection (3) has been adjudicated upon.

(5) No release or settlement of a claim or judgment based upon a cause of action for damages for personal injuries in a case where the injured person has received insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services under this Act shall be binding upon Her Majesty unless the Minister or a person designated by him has approved the release or settlement in writing. (5A) Subject to subsection (5C), where, as a result of a claim pursuant to this Section, (

a) the claim is settled or a judgment is obtained; and (

b) insufficient funds are available to provide complete recovery to the injured person for the injured person's losses and injuries and to pay the costs of the care, services and benefits referred to in subsection (1), the injured person and Her Majesty in right of the Province shall share pro rata in proportion to their respective losses in any recovery in accordance with the terms and conditions prescribed by regulation. (5B) No person acting on their own behalf or on behalf of another person, shall, without the approval in writing pursuant to subsection

(5C) of the Minister, make a settlement of a claim based upon a cause of action for damages for personal injuries in a case where the injured person has received care, services or benefits referred to in subsection (1) unless at the same time the person makes a settlement to recover the same pro rata proportion in respect of the cost of the care, services and benefits referred to in subsection (1) as the injured person is to recover in respect of the person's losses and injuries. (5C) Where a person who makes a claim pursuant to subsection (1) has obtained an offer for a settlement whereby the same pro rata proportion of the cost of the care, services and benefits referred to in subsection (1) would be recovered as the injured person would recover in respect of the person's losses and injuries but, in the opinion of the Minister or a person designated by the Minister, the offer would not provide sufficient recovery in respect of the care, services and benefits referred to in subsection (1), the Minister or a person designated by the Minister may approve, in writing, a release or settlement whereby the person making a claim pursuant to subsection (1) makes a settlement of a claim in respect of the person's injuries or losses without making a settlement in respect of the cost of the care, services and benefits referred to in subsection (1), but the written approval is not binding on Her Majesty in right of the Province in relation to a claim made pursuant to subsection (5) in respect of the cost of the care, services and benefits referred to in subsection (1). (5D) Every liability insurer carrying on business in the Province shall provide the Minister, when requested to do so, information relating to (

a) a claim made against an insured person by a person who received any of the care, services or benefits referred to in subsection (1); or (

b) the terms and conditions of any settlement entered into by an insured person and a person who received any of the care, services or benefits referred to in subsection (1). (5E) Notwithstanding any other provision of this Act, the Minister may, in accordance with the regulations, authorize the payment of a fee to a barrister and solicitor who makes a claim on behalf of an injured person and recovers a sum in respect of the cost of care, services or benefits referred to in subsection (1) that are received by the injured person.

(6) Where a person whose act or omission resulted in personal injuries to another is insured by a liability insurer, the liability insurer shall pay to the Minister any amount referable to a claim for recovery of the cost of insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment and insured professional services that would otherwise be paid to the insured person and payment of that amount to the Minister discharges the liability of the insurer to pay that amount to the insured person or to any person claiming under or on behalf of the insured person.

(7) For the purposes of this Section, the sum paid for insured hospital services that are received by an injured person shall be an amount equal to the charges of the hospital in which the services were provided, at rates approved by the Minister, that the insured person would have been required to pay if he was not entitled to receive the services as insured hospital services under this Act.

(8) In an action under this

Section a certificate of a person designated by the Minister as to the sum paid for insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services received by an injured person is admissible in evidence and is prima facie proof of that sum. (9) repealed 2002, c. 5, s. 24 .

(10) This

(11) The Minister may impose a levy to be paid by each motor vehicle insurer with respect to each vehicle insured by that insurer for the purpose of recovering insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services pursuant to this Act incurred by third parties as a result of personal injury in motor vehicle accidents.

(12) Within sixty days after the coming into force of subsections (10) to (20), the Minister shall estimate the levy applicable to the end of the calendar year and so inform the Superintendent of Insurance.

(13) Within ninety days of the coming into force of subsections (10) to (20), the Superintendent of Insurance shall notify the insurers of the estimate and the insurers shall remit payment forthwith.

(14) Commencing no later than the fifteenth day of January, 1993, and by the fifteenth day of January of each subsequent year, the Superintendent of Insurance shall give notice to the insurers of the estimate and the insurers shall remit to the Superintendent the amount estimated in equal quarterly payments commencing on the thirty-first day of March, 1993, such quarterly payments to be payable within sixty days following the end of each quarter.

(15) Upon receipt of the funds payable by insurers pursuant to subsections (10) to (20), the Superintendent of Insurance shall credit the amount to the recovery account identified by the Minister.

(16) The Minister shall annually re-evaluate the accuracy of the levy estimate in the following year.

(17) The Minister shall advise the Superintendent of Insurance of the adjustments and the Superintendent shall give notice to the insurers of the adjustments.

(18) Where the adjusted amount is greater than the estimate, the insurers shall remit payment forthwith.

(19) Where the adjusted amount is less than the estimate, the insurers account shall be credited with the surplus.

(20) No interest is payable on the surplus or deficit resulting after the calculation of the adjusted amount.

(21) For greater certainty, in subsections (2) to (8) "insured hospital services" includes any care, services or benefits for which costs have been or may in the future be paid by the Minister in relation to negligence or a wrongful act or omission including, without limiting the generality of the foregoing, ambulance services to which the Province has made payment, home-care services, care for a person in a home for special care or child-care facility to which the Province has made payment and any services prescribed in the regulations as insured hospital services for the purpose of this subsection. R.

S., c. 197, s. 18; 1992, c. 20, s. 12; 2002, c. 5, s. 24 . [ 7 ] He correctly outlined the general principles of statutory

interpretation: [15] The opening words in Sullivan on the Construction of Statutes , by Ruth Sullivan, Fifth Edition (Markham: LexisNexis, 2008) describe the principle as: Introduction . More than thirty years ago, in the first edition of the Construction of Statutes , Elmer Driedger described an approach to the

interpretation of statutes which he called the modern principle: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament.

The modern principle has been cited and relied on in innumerable decisions of Canadian courts, and in Re Rizzo & Rizzo Shoes Ltd. itwas declared to be the preferred approach of the Supreme Court of Canada. It has even been applied to

interpretation of Quebec’s CivilCode. [16] Sullivan continues at Page 3: The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme andobjects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support asingle

interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases,the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. Ifthe modern principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases. Relation of modern principle to rules of statutory

interpretation. Under the modern principle, an interpreter who wants to determinewhether a provision applies to particular facts must address the following questions: · what is the meaning of the legislative text? · what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposesdid it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? · what are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature ispresumed to respect? In answering these questions, interpreters are guided by the so-called “rules” of statutory

interpretation. They describe the evidencerelied on and the techniques used by courts to arrive at a legally sound result. The rules associated with textual analysis, such as impliedexclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governingthe use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent. Strict and liberalconstruction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of the outcomes againstaccepted legal norms.

At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an

interpretation that isappropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with thelegislative text; (

b) its efficacy, that is, its promotion of legislative intent; and (

c) its acceptability, that is, the outcome complies withaccepted legal norms; it is reasonable and just. [17] The plaintiff (Province) refers the Court to Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27;Bishop-Beckwith Marsh Body v. Wolfville (1996), 1996 NSCA 126 , 135 D.L.R. (4th) 456 (N.S.C.A.) at ¶¶ 13 and 14; MacNuttv. Nova Scotia, 2009 NSSC 70 at ¶ 16, and s.9(5) of the

Interpretation Act of Nova Scotia, which reads: Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (

a) the occasion and necessity for the enactment; (

b) the circumstances existing at the time it was passed; (

c) the mischief to be remedied;

(

d) the object to be attained; (

e) the former law, including other enactments upon the same or similar subjects; (

f) the consequences of a particular

interpretation; and (

g) the history of legislation on the subject. [ 8 ] Before addressing the three questions posed by Sullivan , the judge agreed with the appellant that s. 18(10) was important to the

interpretation before him. He agreed that when it was read in isolation, it suggested that nursing home care costs that arose from insured motor vehicle accidents were excepted from the Province’s right of subrogation. However, he went on to indicate that s. 18(10) had to be read in the context of the whole of s. 18, including its legislative history and purpose, and not in isolation.

Looking at the whole of s. 18 and its legislative history, the judge determined that the legislative intent/purpose was for the Province to recover its costs for the same health services from all tortfeasors, whether or not these services arose as a result of an insured motor vehicle accident.

In reaching his conclusion, he took into account the provisions of s. 18 from 1973 to the 2002 amendments and his finding that ss. 18(10) and (11), both introduced in 1992, were interrelated, to the effect that the levy detailed in ss. 18(11 to 20) was only intended to provide a different method by which the Province could recover from motor vehicle tortfeasors and their liability insurers the actual costs of certain health services.

It was his opinion, and one that I share, that the Legislature would not have intended to create different classes of tortfeasors, or separate the type of health services costs that could be recovered from one, but not the other. [ 9 ] The judge then considered the three questions posed by Sullivan : Question #1 What is the meaning of the legislative text? [54] It is not argued that before the 1992 amendments, the words of s. 18, read in their grammatical and ordinary sense and in their entire context, clearly gave the Province the right to recover from any tortfeasor insured health-related service costs. ·

Section 18 also set out what insured services were recoverable and the scheme for recovery of those costs - on an accident-by-accident basis, from the injured person who recovered from a tortfeasor, or by subrogation from the tortfeasor or her/his insurer. · Subsection 18(1) set out the Province’s right to recover the cost of certain insured services. · Subsection 18(2) set out the obligation of an injured person who recovered a sum for the insured services to pay them to the Province. · Subsection 18(3) gave the Province the right to subrogate for those services in the name of the injured person. · Subsection 18(4) precluded certain defences to the Province’s subrogated action. · Subsection 18(5) provided that no settlement or judgment for personal injuries, for which the injured person received insured services, was binding on the Province without its written approval. · Subsection 18(6) extended the responsibility of a tortfeasor to the Province for recovery of the cost of insured services from the

tortfeasor and her/his liability insurer. · Subsection 18(7) described the cost of insured services as the amount, at rates approved by the Province, that the injured person would have been required to pay if she/he had not been an insured person under HSIA . · Subsection 18(8) provided for admissibility of a certificate as prima facie proof of the cost of insured services in 18(7). · Subsection 18(9) discharged a liability insurer from liability to the Province to the extent that the full amount/limit of its policy was insufficient to satisfy the injured person’s claim, other than for the Province’s claim for insured services. [55] Subsequent to 1992, specifically in 2002, HSIA was amended to expand the scope of insured health-related services for which the Province’s right of subrogation applies. ... [56] The parties agreed that the definition of ‘insured services’ for which tortfeasors and their liability insurers are liable was expanded to include nursing home costs.

Because the 2002 amendments do not reference subsections 18(10 to 20), the defendant submitted that the Province has neither a right under the subrogation scheme, nor any right under the levy scheme, to recover these costs. For this, the defendant relies upon an

interpretation of subsection 18(10) by reference only to the grammatical and ordinary sense of the words of 18(10). [57] I agree that, without context, the words of 18(10) read in their ordinary sense, preclude a right of subrogation for nursing home costs against tortfeasors and their liability insurers for injuries resulting from motor vehicle accidents. I do not agree that the analysis of the first Sullivan question ends there. [58]

Interpretation involves consideration of the words in the context of the enactment as a whole and their factual matrix or setting. Words cannot be interpreted in a vacuum or without knowledge of the genesis (occasion, circumstances and mischief) and purpose of the legislation. [59] I disagree with the defendant’s approach that if the words of 18(10) in their grammatical and ordinary sense mean one thing, then the interpretative process ends. Question #2 What did the legislature intend? When the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve?

What specific intentions (if any) did it have regarding facts such as these? [60] As noted, subsection 9(5) of the

Interpretation Act deems every enactment to be remedial and directs that it is interpreted to ensure attainment of its object by considering a non exhaustive list of seven factors: · the occasion and necessity for the enactment, · the circumstances existing at the time it was passed, · the mischief to be remedied, · the object to be obtained,

· the former law, · the consequences of a particular

interpretation, and, · the history of the legislation on the subject. [61] These factors relate to all three Sullivan questions. Except for the consequences of a particular

interpretation, all are directly relevant to the second Sullivan question. [62] In my view, it is obvious that the 1992 amendments provide for a different method or scheme by which the Province was entitled to recover from tortfeasors and their liability insurers for insured services provided to persons injured in motor vehicle accidents. It is plain that rather than recover these insured health-related costs on an accident-by-accident basis, the costs would be recovered by way of a levy on motor vehicle insurers (all motor vehicle owners in the Province are obligated to be insured).

The recovery would still be equal to the actual total cost of the insured services, but would be prorated amongst insurers based on their share of the total number of insured motor vehicles. [63] The reason for the change is not expressly stated in the legislation nor was extrinsic evidence tendered that would identify the reason. It is not necessary to determine the reason for the amendment from expressly stated goals or extrinsic evidence. It is enough to find, on the basis of the purpose and scheme of the Act and of

section 18, that the 1992 amendments read as a whole and in the context of s. 18 and the Act can reasonably be interpreted as intending to do no more than change the method by which the Province recovered its cost of insured services in the case of motor vehicle accidents. [64] While both parties to this motion focussed on the 1992 amendments, and the defendants’ submissions focussed on the argument that 18(10) and 18(11) are not interrelated, in my view a key interpretative issue in this case arises from the 2002 amendments.

Again, the circumstances, mischief and purpose of the 2002 amendments are not expressly set out in the enactment, and no extrinsic evidence was tendered. [65] The key change to s. 18 by the 2002 amendments was the expansion of the kinds of insured health-related services for which the Province can recover. The changes were to subsections 18(1) and 18(21). Subsection 18(21) expressly applies only to subsections 18(2) to (8). Nursing home costs were included in the expanded list of insured health-related services.

The 2002 amendments do not expressly address subsection 18(10) to (20). [66] An important interpretative question is whether the expanded list of insured health-related services for which recovery from tortfeasors was authorized, was intended to apply to tortfeasors in motor vehicle accidents, or only to all tortfeasors other than those in motor vehicle accidents. [67] In my view, the answer is clear.

Before the 2002 amendments, the circumstances and legislation provided that the Province was entitled to recover for the same insured health-related services from tortfeasors in motor vehicle accidents as from all other tortfeasors. The only difference between the two classes of tortfeasors was the method of recovery of those costs. [68] I do not interpret the 2002 amendments as intending to give tortfeasors in respect of motor vehicle accidents a free ride with respect to nursing home costs that is not available to all other tortfeasors.

There is no evidence of a new factual matrix or circumstance, or a change in the mischief to be remedied, or object to be obtained, that can be inferred from any reading of the 2002 amendments. Question #3 What are the consequences of the defendant’s proposed

interpretation? Are they consistent with accepted legal norms? [69] HSIA is a remedial or public welfare enactment, not a penal, punitive or taxation-like statute. It is not one of the kinds of legislation that historically was construed in favour of the person to whom the legislation was directed.

[70] As Elmer Driedger stated, and the Supreme Court of Canada has often repeated, there is now but one principle of

interpretation. [71] The consequences of the defendant's

interpretation would be to create two classes of tortfeasors. There is no equitable basis or logical reason why tortfeasors in motor vehicle accidents should be treated any differently from all other tortfeasors in respect of liability for (as opposed to the method of recovery of) insured health-related services. F.3 Plausibility, Efficacy, and Acceptability [72] Answering the three questions does not end the analysis. I am obligated to adopt an

interpretation that can be justified in terms of its plausibility, efficacy and acceptability. [73] Plausibility . Departure from the ordinary meaning of a legislative text is permissible so long as the

interpretation adopted is one the words can reasonably bear (Sullivan text, c. 6, page 163). The constraint is that the

interpretation must be plausible. The difficult distinction, according to Sullivan, is between paraphrasing (permissible) and amending (not permissible). [74] Courts are required to carry out an analysis to determine legislative intent or purpose, but the result does not necessarily control the decision. Determining the purpose is important, but it will not justify adopting an implausible

interpretation. [75] Subsection 18(10) cannot be read in isolation from the subsections creating the levy or the existing subsections that impose on tortfeasors and liability insurers responsibility for certain health costs. There is nothing in the legislative text from which a Court can appropriately interpret an intention to exempt motor vehicle tortfeasors and their liability insurers from responsibility for health costs for which all other tortfeasors and liability insurers are responsible. [76] It is plausible to adopt an

interpretation that recognizes the 1992 amendments as simply a change in the method or scheme by which motor vehicle tortfeasors and their insurers would pay actual health-related costs, as opposed to an intention to alter what costs they would be liable for. Subsection 18(10) to (20) are thus related and can be read as a whole.

Furthermore, it is plausible that the 2002 amendments, which expanded the kinds of recoverable insured services recoverable under the subrogation scheme, but not through the levy, were intended to mean that the new kinds of recoverable services are recoverable from motor vehicle tortfeasors under the subrogation procedure. [77] It seems unfair and unreasonable, and therefore implausible that motor vehicle tortfeasors and insurers would get a free ride. [78] Efficacy is described as the promotion of the legislative intent.

interpretation must be appropriate in the sense of complying with accepted legal norms. The defendant raised the interpretative maxim of implied exclusion or “ expressio unius .” The force of the implication of an implied exclusion depends upon the strength and legitimacy of an expectation that if the legislature intended to include liability on motor vehicle insurers, it would have expressly done so. The 1992 amendments did not deal with what insured costs motor vehicle liability insurers were liable for, but only how they would discharge their liability.

There was (and is) no basis for an expectation that motor vehicle tortfeasors and insurers would be exempt from liability for insured health-related costs that all other tortfeasors and insurers are liable.

[81] A second maxim advanced by the defendant is that legislation that takes away rights of its subjects should be strictly construed.In light of s. 9(5) of the

Interpretation Act, that maxim has little or no relevance in these circumstances. This is social welfare legislation,not penal, punitive or taxation-like legislation. [82] To interpret s. 18 in a manner consistent with the imposition of the levy scheme for motor vehicle accidents in 1992 and theexpansion of insured services in 2002, or in a manner that does not exempt motor vehicle tortfeasors and their liability insurance fromliability to the Province for nursing home costs, does not involve application of a strained

interpretation to cure a drafting error ormistake. It is simply reading the words of 18(10) in the context of

Section 18 as a whole and harmoniously with the clear scheme andobject of the enactment, and the legislative intention. [10] Thus the judge was satisfied the correct

interpretation of s. 18 gave the Province a subrogated right under s. 18(3) to claimrecovery of its costs for nursing home care that arise from injuries suffered in a motor vehicle accident against a person insured by apolicy of third-party liability insurance. [11] While no Hansard excerpts relating to the legislation were in evidence before the judge, excerpts relating to the 1992amendments to s. 18 were before this Court. I agree with the parties that we are entitled to take these into account in deciding this appeal.The excerpts reveal that (

a) the levy introduced in 1992 was the product of then ongoing negotiations between the Province and theInsurance Bureau of Canada. This may explain the use of the permissive word “may” in s. 18(11), “The Minister may impose a levy...”,(

b) the Province was following New Brunswick’s lead in implementing a levy and (

c) the levy was aimed at the Province recovering100% of its costs for the health services arising from insured motor vehicle accidents that it had been entitled to recover by subrogationat the time of the 1992 amendments. [12] I agree with the parties that the standard of review is correctness; Housen v. Nikolaison, 2002 SCC 33, ¶ 8. [13] Ms. Keizer argues the judge (1) incorrectly applied the principles of statutory

interpretation and (2) exceeded his jurisdictionby amending rather than interpreting the law. [14] In saying the judge misapplied the principles of statutory

interpretation, Ms. Keizer’s main argument is that the judge erred bygiving too little effect to s. 18(10) and by placing too much reliance on the intention/purpose he “improperly” inferred – that theLegislature intended the Province be entitled to recover its costs for the same health services from all tortfeasors.

She said the clearwords of s. 18(10) should play the dominant role in deciding whether the Province could recover its costs of nursing home care arisingfrom motor vehicle accidents from third party liability insurers, and that caution must be exercised when inferring an intention to theLegislature in the absence of extrinsic evidence of intention. [15] I agree, as did the judge, that reading s. 18(10) alone, supports the appellant’s position, that the Province’s subrogation rightsunder s. 18(3) do not apply where its health services costs were incurred as a result of personal injury that arose from an insured motorvehicle accident.

But we are not to read s. 18(10) in isolation. The importance of this principle is highlighted by reading othersubsections of s. 18. [16] For instance, s. 18(3) provides:

(3) Her Majesty in right of the Province shall be subrogated to the rights of a person under this

Section to recover any sum paid by theMinister for insured hospital services [which by virtue of s. 18(21) includes nursing home care]... provided to that person, and an actionmay be maintained by Her Majesty, either in Her own name or in the name of that person, for the recovery of such sum. [17] Reading this subsection alone indicates the Province has the subrogated right it claims. Reading s. 18(6) in isolation suggeststhe same thing. [18] The modern approach to statutory

interpretation requires that the disputed

section of a statute be interpreted in its entire context,not in isolation. Its context includes a review of its legislative evolution and history; Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, at ¶ 31; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, ¶43-52 and Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005SCC 70, ¶ 28. Its meaning is to be interpreted harmoniously with the scheme of the statute, the object of the statute and the intention of

the Legislature. In my view that is precisely what the judge did in his carefully considered reasons. [ 19 ] The issue here is whether the Province can claim by subrogation its costs for nursing home care provided to a person injured in an insured motor vehicle accident. Recovery by the Province of its costs for health services, both with respect to insured motor vehicle accidents (s. 18(11)) and otherwise (s. 18(3)), is governed by s. 18.

Therefore, it is s. 18 and its legislative history that is relevant to determining the intention of the Legislature and the answer to the question before us. [ 20 ] The evolution of s. 18 is set out in paragraph 5 above. It indicates that from 1973 to 1992 the cost for the same health services could be claimed by the Province from all tortfeasors, whether involved in insured motor vehicle accidents or not.

In 1992 ss. 18(10 to 20) were added to provide for an annual levy to allow the province to accomplish what New Brunswick had already achieved, recovery of 100% of its health services costs arising from insured motor vehicle accidents. Hansard confirms the levy was no more than a different and better means for the Province to recover its costs for the same health services incurred as a result of insured motor vehicle accidents that it could claim by subrogation under s. 18(3).

A reasonable inference from this history, which highlights the interrelationship between the exception provided in s. 18(10) and the levy in s. 18(11), is that the exception provided for in s. 18(10) is limited to the health services covered by the levy which in this case does not include nursing home care costs. [ 21 ] There is nothing in the 2002 amendments to suggest that the legislative intention to allow the Province to recover its costs for the same health services from all tortfeasors changed when nursing home care was added as a recoverable health service.

In fact, the amendments suggest the Legislature was expanding the Province’s ability to recover its health services costs.

This is confirmed by the expansion of the type of health service costs the Province could claim under s. 18(3) – “home-care services, care for a person in a home for special care or child-care facility”, which includes nursing home care costs, and by the repeal of s. 18(9) and the addition of ss. 18(5A to 5E), giving the Province the right to recover more, not less, of its costs for health services from tortfeasors. [ 22 ] I am not persuaded that the judge erred by “improperly” inferring the intention of the Legislature.

The intention of the Legislature can be inferred without extrinsic evidence; Municipal Enterprises Ltd. v. Nova Scotia (Attorney General) , 2003 NSCA 10 , at ¶ 51 , 59-66 (per Glube C.J.N.S., Chipman J.A. concurring) and at ¶ 99-105 (per Bateman J.A. concurring); Sullivan on the Construction of Statutes , 5th ed. (Markham, ON: LexisNexis, 2008) at 275-281. Based on my reading of the whole of s. 18 and considering it in light of its evolution since 1973, satisfies me that the judge’s disposition and the reasoning that lead to it, is correct.

In my respectful opinion, the Legislature intended to provide the Province with the right to claim its costs for the same type of health services from all tortfeasors. [ 23 ] I recognize that it is not apparent why in 2002 the Legislature reverted to having the Province attempt to recover its nursing home care costs by subrogation rather than through the levy, given that the levy was apparently a superior and more cost effective means of collection.

We know from the Hansard excerpts that the implementation of the levy in 1992 involved negotiations with the Insurance Board of Canada, but we cannot speculate as to whether a failure to reach an agreement with the Bureau in 2002 as to additional health services being added to the levy caused the Legislature to revert to subrogation for services not covered by the levy. There is nothing in the legislation itself or in Hansard to suggest an answer. [ 24 ] Ms. Keizer’s second argument, that the judge erred by filling a gap in the legislation, something that is to be left to the Legislature, also fails.

She suggests that by finding that the appellant’s motor vehicle insurer was liable to reimburse the Province for its costs in providing nursing care, notwithstanding the levy regime, the judge effectively redrafted the legislation by creating a further exception that does not appear in s. 18(10). For the reasons I stated previously, I respectfully disagree.

Having found that the judge properly interpreted s. 18 as it is written, I am satisfied the judge did not err by filling a gap in the legislation, as there was none to be filled. [ 25 ] Accepting, as I do, that the judge correctly determined that the Province has a subrogated right to claim recovery of its costs for nursing home care that arise from injuries suffered in a motor vehicle accident, against a person insured by a policy of third-party liability insurance, I would dismiss the appeal and order the appellant to pay costs to the respondent in the amount of $1,500 plus disbursements as agreed or taxed.

Hamilton, J.A.

Concurred in: Saunders, J.A. Dissenting reasons for judgment : (Oland, J.A.) [ 26 ] I have read the decision of my learned colleague, Justice Hamilton. With respect, while I agree with several aspects of her analysis, I cannot agree with the result. For the reasons which I will develop, I would allow the appeal. [ 27 ] In her decision, Justice Hamilton set out the issue: does the Province have a subrogated right to claim against a person insured by a policy of third-party liability insurance for recovery of its costs for nursing home care that arise from injuries suffered in a motor vehicle accident. I agree that the answer depends on the

interpretation of the HSIA and the standard of review is correctness. [ 28 ] I also agree that, in his reasons, Justice Gregory M. Warner correctly outlined the general principles of statutory

interpretation.

However, it is my view that in applying those principles, he fell into error and reached a decision which is not correct in law. [ 29 ] I begin my analysis with a review of the relevant legislative history. [ 30 ] When the HSIA was enacted in 1973, (S.N.S. 1973, c. 8, s.13) the Province was subrogated to the rights of a person who suffered personal injury as a result of negligence of another person, for which the injured person received insured hospital and medical services: 13(1) Where, as a result of the wrongful act or omission of another, a person suffers personal injuries, for which he receives insured hospital services or insured medical services under this Act, he shall have the same right to recover the sum paid for those services against the person guilty of the wrongful act or omission as he would have had if he, himself, had been required to pay for the services.

(2) Where, under subsection (1), a person recovers a sum in respect of insured hospital services or insured medical services received by him under this Act, he shall forthwith pay the sum recovered to the Commission.

(3) Her Majesty the Queen in the right of the Province shall be subrogated to the rights of a person under this

Section to recover any sum paid by the Commission for insured hospital services or insured medical services provided to that person, and an action may be maintained by Her Majesty, either in Her own name or in the name of that person, for the recovery of such sum. [ 31 ] In the 1989 revisions to the HSIA , s. 13 became s. 18. The Province’s recovery by way of subrogation continued pursuant to s. 18(3). It is noteworthy that not all costs or services were eligible. Only certain services, namely insured hospital and medical services, qualified for recovery in this manner. [ 32 ] In 1992, the Legislature amended s. 18 to add ss. 18(10) to (20). These included:

18(10) This

Section applies except where personal injury has occurred as the result of a motor vehicle accident in which the person whose act or omission resulted in the personal injury is insured by a policy of third-party liability insurance on or after the date this subsection comes into force. 18(11) The Minister may impose a levy to be paid by each motor vehicle insurer with respect to each vehicle insured by that insurer for the purpose of recovering insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services pursuant to this Act incurred by third parties as a result of personal injury in motor vehicle accidents. [Emphasis added] These provisions allowed the Province to implement an automobile insurance levy to recover certain specified services incurred as a result of motor vehicle accidents.

At the same time, its right of subrogation for those costs was eliminated. [ 33 ] In 2002, the Legislature amended s. 18(1) to include “home-care services, care for a person in a home for special care”.

That provision then read: 18(1) Where, as a result of the negligence or wrongful act or omission of another, a person suffers personal injuries for which the person received insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment, home-care services, care for a person in a home for special care or child-care facility to which the Province has made payment, insured professional services under this Act, or any other care, services or benefits designated by regulation, including the future costs of any such care, services or benefits, the person (

b) if the person makes any claim for the personal injuries suffered against the person who was negligent or who was responsible for the wrongful act or omission, shall claim and seek to recover the costs of the care, services or benefits. [Emphasis added] At the same time, the Legislature broadened the definition of “insured hospital services” for not all, but only some, subsections of s. 18: 18(21) For greater certainty, in subsections (2) to (8) “insured hospital services” includes any care, services or benefits for which costs have been or may in the future be paid by the Minister in relation to negligence or a wrongful act or omission including, without limiting the generality of the foregoing , ambulance services to which the Province has made payment, home-care services, care for a person in a home for special care or child-care facility to which the Province has made payment and any services prescribed in the regulations as insured hospital services for the purpose of this subsection. [Emphasis added] [ 34 ] Prior to these 2002 amendments, the Province could not recover nursing home costs by way of subrogated action.

The HSIA did not refer to such costs for all of the years from 1973 until 2002. As a result of the 2002 amendments, nursing home costs became “insured hospital services” for which the Province could subrogate pursuant to s. 18(3). [ 35 ] However, the 2002 amendments did not affect the exemption in s. 18(10) of the HSIA which states that s. 18 applies “except where personal injury has occurred as the result of a motor vehicle accident.” Moreover, s. 18(21) limited the expanded definition of “insured hospital services” to ss. 18(2) to (8).

It did not change the meaning of that phrase in s. 18(11) which authorized the automobile insurance levy.

[ 36 ] The issue before the judge concerned the

interpretation of the provisions of the HSIA relating to the levy and the Province’s right to subrogate. The parties agree that nursing home costs are not included in the levy. However, the appellant argued that the Province does not have a right to recover those costs from motor vehicle insurers because of the exemption in s. 18(10).

The respondent urged that, despite the wording in s. 18(10), the Province can subrogate for such costs pursuant to s. 18(3). [ 37 ] The judge determined that the Province maintained a subrogated right pursuant to s. 18(3) to claim against a person insured by a policy of third party liability insurance for nursing home care costs arising from personal injury sustained in a motor vehicle accident. [ 38 ] In his analysis, the judge correctly set out the general principles of statutory

interpretation, which my colleague quoted at [7] of her decision. He referred to the modern principle statutory

interpretation according to Sullivan on the Construction of Statutes , which states that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament.” He followed the interpretive process set out in Sullivan by addressing the following questions: (

a) what is the meaning of the legislative text? (

b) what did the legislature intend? (

c) what are the consequences of adopting a proposed

interpretation? [ 39 ] In my view, in determining the meaning of s. 18 of the HSIA , the judge erred in his assessment of the intention of the Legislature and by failing to appreciate the consequences of his

interpretation. [ 40 ] In addressing the first of the Sullivan questions, namely the meaning of the legislative text, the judge agreed that, without context, the words of s. 18(10) when read in their ordinary sense precluded a right of subrogation for nursing home costs against tortfeasors and their liability insurers for injuries resulting from motor vehicle accidents. He stated that the interpretative process does not end there and continued to address the remaining Sullivan questions. [ 41 ] The judge then proceeded to determine the intention of the Legislature.

He first considered the 1992 amendments which created the levy: [62] In my view, it is obvious that the 1992 amendments provide for a different method or scheme by which the Province was entitled to recover from tortfeasors and their liability insurers for insured services provided to persons injured in motor vehicle accidents. It is plain that rather than recover these insured health-related costs on an accident-by-accident basis, the costs would be recovered by way of a levy on motor vehicle insurers (all motor vehicle owners in the Province are obligated to be insured).

section 18, that the 1992 amendments read as a whole and in the context of s. 18 and the Act can reasonably be interpreted as intending to do no more than change the method by which the Province recovered its cost of insured services in the case of motor vehicle accidents . [Emphasis added] [ 42 ] The parties did not provide the judge with any extrinsic evidence pertaining to the 1992 amendments to s. 18. In her decision at [11], Justice Hamilton reviewed the Hansard excerpts relating to those changes which this court received on appeal.

They support the position of both parties and the finding by the judge that the 1992 amendments created a trade-off of the Province’s subrogation right in s. 18(3) for the exemption and levy in ss. 18(1) and (11). They also show that the levy was not simply a provincial initiative, but the result of negotiations with the insurance industry. [ 43 ] The judge then considered the 2002 amendments, noting that again no extrinsic evidence was tendered.

He asked himself whether the expanded list of insured health-related services for which the Province can recover was intended to apply to tortfeasors in motor vehicle accidents, or only to all tortfeasors other than those in motor vehicle accidents, and stated:

[67] In my view, the answer is clear. Before the 2002 amendments, the circumstances and legislation provided that the Province was entitled to recover for the same insured health-related services from tortfeasors in motor vehicle accidents as from all other tortfeasors. The only difference between the two classes of tortfeasors was the method of recovery of those costs. [68] I do not interpret the 2002 amendments as intending to give tortfeasors in respect of motor vehicle accidents a free ride with respect to nursing home costs that is not available to all other tortfeasors .

There is no evidence of a new factual matrix or circumstance, or a change in the mischief to be remedied, or object to be obtained, that can be inferred from any reading of the 2002 amendments. [Emphasis added] [ 44 ] The 2002 amendments were contained in an omnibus budget implementation bill. Nothing in Hansard assists with their

interpretation. Whether there were similar negotiations with the insurance industry as in 1992 when the definition of “insured hospital services” was broadened in 2002 is not apparent from that extrinsic evidence. [ 45 ] In regard to the third Sullivan question, namely consequences of the proposed

interpretation, the judge stated: [71] The consequences of the defendant's

interpretation can be justified in terms of its plausibility, efficacy, and acceptability. In doing so, the judge stated: [77] It seems unfair and unreasonable, and therefore implausible that motor vehicle tortfeasors and insurers would get a free ride . [78] Efficacy is described as the promotion of the legislative intent.

The legislative intent is not promoted if all other tortfeasors and liability insurers are liable for nursing home care costs, but motor vehicles tortfeasors and liability insurers are not. [79] It seems unreasonable, unjust, possibly absurd, and certainly illogical, to exempt motor vehicle tortfeasors and their liability insurers from responsibility for a wrongful act or omission for which every other tortfeasor and liability insurer remains liable. . . . [82] To interpret s. 18 in a manner consistent with the imposition of the levy scheme for motor vehicle accidents in 1992 and the expansion of insured services in 2002, or in a manner that does not exempt motor vehicle tortfeasors and their liability insurance from liability to the Province for nursing home costs, does not involve application of a strained

interpretation to cure a drafting error or mistake. It is simply reading the words of 18(10) in the context of

Section 18 as a whole and harmoniously with the clear scheme and object of the enactment, and the legislative intention . [Emphasis added] [ 47 ] Twice in his decision, at ¶ 68 and ¶ 77, the judge determined that the 2002 amendments could not have been intended to create

a “free ride with respect to nursing home costs” for tortfeasors in motor vehicle accidents and their liability insurers. He also stated in his¶ 71 that there was no equitable basis or logical reason for two classes of tortfeasors and reiterated this in his ¶ 78 and ¶ 79. [48] With respect, the judge completely ignored the fact that the HSIA does not cover all services, only those specified in itsprovisions. As I explained earlier, for many years the HSIA did not address nursing home costs. They were not identified as an insuredservice, nor as covered by either the levy or the right to subrogation.

Because the Legislature did not choose to include such costs in theHSIA until 2002, for decades all tortfeasors and insurers had had a “free ride” in respect to nursing home costs. [49] The modern principle of statutory

interpretation calls for the words to be read harmoniously with the scheme and object of theHSIA and the intention of the Legislature. The HSIA does not contain a purpose clause.

Section 3 provides that, subject to the HSIAand its regulations, all residents of this Province are entitled to received “insured hospital services from hospitals”. The definition of“insured hospital services” in s. 2(

f) refers to “in-patient and out-patient” services, which relates to the provision of such services in a“hospital” as defined in s. 2(d). I conclude from my review of the HSIA that it deals with insured hospital services (and other insuredservices or plans such as the Insured Prescription Drug Plan), who is entitled to receive these services, the hospitals covered by theHSIA, and payments to hospitals. [50] Yet, in his ¶ 63, the judge set out the purpose and scheme of the “Act and of

section 18” as intending to “do no more” thanchange how the Province recovers its cost of insured services in the case of motor vehicle accidents. His decision did not include anyexamination of the HSIA. The judge failed to recognize that the object of the HSIA is not directed to cost recovery.

His reliance on hisconclusion on this point kept him from fully appreciating the legislative history of the 1992 and 2002 amendments and led to anerroneous determination as to the intention of the Legislature. [51] The legislative history of s. 18 shows that the Legislature made a policy decision not to cover nursing home costs under theautomobile insurance levy. The 1992 amendments replaced recovery of costs on an accident-by-accident basis through subrogation witha levy. When the 2002 amendments were enacted, the levy trade-off scheme had been in effect for a decade.

Yet the Legislature did notamend either the s. 18(10) exemption or the s. 18(11) levy so as to pick up nursing home costs. Instead, s. 18(21) which expanded thedefinition of “insured hospital services” to include nursing home costs carefully limited the expanded definition to s-ss. (2) to (8) of s.18. [52] Had the Legislature intended to recover nursing home costs arising from motor vehicle accidents where the responsible personwas insured, it could easily have amended the s. 18(10) exemption or the s. 18(11) levy in 2002.

For example, s. 18(21) could haveprovided not that the enlarged definition of “insured hospital services” applied only to s-ss. (2) to (8), but rather to s-ss. (2) to (8) and s-s.(11). In Bishop-Beckwith Marsh Body et al vs. Wolfville (Town) (1996), 1996 NSCA 126 , 151 N.S.R. (2d) 333 (C.A.),leave to appeal refused at (1997), 156 N.S.R. (2d) 320 (S.C.C.), Hallett, J.A. stated: [20] Of particular relevance to the issue on this appeal is the presumption that amendments to the wording of legislation were donefor a reason. In Fraser (D.R.) & Co. v.

Minister of National Revenue, (UK JCPC), [1949] A.C. 24 (P.C.) at p. 33,Lord MacMillan wrote: “When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately.” [53] In this case we have not only the deliberate expansion of the meaning of a defined term, but a clear restriction as to itsapplication. The 2002 amendment did not change s. 18(11) so as to unequivocally show that nursing care costs were captured by thelevy. Moreover, there was no change to s. 18(10) which applies to the entirety of s. 18 and which, for convenience, I set out again here:

(10) This

[ 54 ] The judge himself stated that the words of s. 18(10) when read in their ordinary sense would preclude subrogation by the Province of costs caused by injuries resulting from motor vehicle accidents where the tortfeasor is insured by third-party liability insurance. Where the text is precise and unequivocal, wording is to be given a dominant role in the interpretive process. See, for example, Canada Trustco Mortgage Co. v. Canada , 2005 SCC 54 at ¶ 10 . [ 55 ] The

interpretation accepted by the judge seems to be that because nursing home costs are not included in the s. 18(11) levy, they must be covered and recoverable by subrogation pursuant to s. 18(3). The consequence of this

interpretation is that the Province would recover all medical care costs under the levy, except nursing home costs. For those costs alone, the Province would claim pursuant to its subrogation rights. In other words, having decided earlier to recoup all insured costs caused by motor vehicle tortfeasors through the levy, the Legislature has decided to revert to subrogation for this single item. This consequence is striking and, in my view, is not plausible. Nor can it be justified in terms of efficacy.

The Province would have to pursue these costs on an accident-by-accident basis even though all others are through the levy and do not require litigation. [ 56 ] In conclusion, an examination of the evolution of s. 18, the wording of the relevant provisions, and the consequences of the

interpretation the judge accepted shows that he erred in his application of the principles of statutory

interpretation. He failed to go beyond s. 18 to determine the purpose of the HSIA and to give appropriate weight to the precise and unequivocal wording of ss. 18(10) and (11) in light of that purpose. He adopted an

interpretation with consequences that is neither plausible or would promote efficacy. While it is not possible to know why the Legislature made a policy decision not to recover nursing home costs under the levy, the legislative history of the HSIA and the wording of s. 18(10) in particular demonstrates that, with respect to liability and the method of recovery, the Legislature intended a difference between motor vehicle insurers and all others. [ 57 ] I would allow the appeal. I would order the respondent to repay the costs paid to it by the appellant and would award costs on the appeal to the appellant of $1,500.00 plus disbursements as agreed or taxed. Oland, J.A.

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