IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100527

Docket: S104306

Registry:
New Westminster

Between:

April Gosselin

Plaintiff

And

Mark Shepherd and
Dr. Mark J. Shepherd Chiropractic Services Inc.

Defendants

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]          
On May 6, 2010 I heard two applicants raising the same issue.  In these
reasons I will deal with the application in New Westminster Registry No.
S104306 in which the plaintiff, April Gosselin, applies for an order to amend her
statement of claim to add a claim pursuant to s. 2 of the Health Care Costs
Recovery Act, R.S.B.C., 2008 Ch. 27 (the “Act”) to recover the
cost of health care services provided to her by the government of British
Columbia.  In Vancouver Registry No. S070700 the plaintiff, Irene Fong, made
application for substantially the same amendment.  I will deal with that
application in separate reasons.

[2]          
Ms. Gosselin alleges she was injured on June 7, 2005 as a result of the
negligence of the defendants.  She commenced this action on March 1, 2007.

[3]          
Ms. Gosselin seeks the following amendment:

The plaintiff is a beneficiary as
defined in section 1 of the Health Care Costs Recovery Act, R.S.B.C.
2008 Chapter 27, who has received one or more health care services as defined
in section 2(1) of the Health Care Costs Recovery Act, and without
restricting the generality of the foregoing, the plaintiff specifically pleads
and relies upon the Health Care Costs Recovery Act and amendments
thereto and any subsequent enactments that may apply.

[4]          
The defendants oppose the amendment on the grounds that it discloses no
reasonable cause of action against them.  They submit that the Act does
not permit Ms. Gosselin to advance a health care services claim in the
circumstances of this case.

[5]          
The parties agree that if the claim set out in the proposed amendment is
not available pursuant to the Act the amendment does not disclose a
cause of action.  Ordinarily on an application to amend, the Court should address
the merits of the proposed amendment only to decide whether it is plain and
obvious whether the proposed amended claim will fail.  However, counsel for the
parties have agreed that I should consider and decide the underlying issue of
the applicability of the Act.

[6]          
Counsel for the Attorney General appeared as an intervenor to make
submissions as to the proper construction of the Act, but took no
position on whether I should decide the issue of the applicability of the Act
raised by the defendants.

[7]          
I have concluded that I should decide the underlying question because
that is what the parties requested and because the issue is one of law alone. 
I note that in Attorney General of Canada v. Inuit Tapirisat of Canada,
[1980] 2 S.C.R. 735 the Court stated that the circumstance that a point
required lengthy legal argument to decide is not determinative of whether the
Court should determine it pursuant to Rule 19(24).  As the analysis of the
merits for amendment is the same as under Rule 19(24), I consider it to be
appropriate to decide the issue put before me by the parties.

[8]          
The defendants submit that the Act does not retrospectively
affect their vested rights to avoid liability established by the decision of Semenoff
v. Kokan, (1991) 84 D.L.R. (4^th) 76 (BCCA).  The Act has
overruled the decision in Semenoff but the issue before me is the extent
to which that overruling applies retrospectively.

[9]          
The Act came into effect on April 1, 2009.

[10]       
In MacEachern v. Rennie 2009 BCSC 652 at paragraphs 6-12 of his
judgment, Mr. Justice Ehrcke reviewed the legislative scheme contained in the Act. 
I need not repeat here what he said in that case.

[11]       
Counsel for the Attorney General submitted that the plain wording of s.
24(1) of the Act makes the Act applicable to injuries suffered
before the Act came into force.  The Attorney General’s submission is
that there is nothing in s. 2 of the Act which limits the right of a
plaintiff in an existing action to amend his or her claim to make a health care
benefits claim in respect of injuries suffered prior to April 1, 2009.

[12]       
Counsel for the defendants submits that the Act does not apply to
claims for personal injury in respect of which the Province had no direct right
of action on April 1, 2009, and does not apply to proceedings commenced prior
to that date.  On the effective date of the Act the Province had a
direct right of action with respect to any health care services claim caused by
injuries suffered as a result of a wrongful act which occurred up to two years
and six months prior to April 1, 2009.  This claim arose well before that
time.  The defendants further submit that the Act has only limited
retrospective effect and that it would be inconsistent with the proper
principles of interpretation of statute and contrary to the scheme set up in
the Act to interpret it to give a right of action to the plaintiff for the
cost of health care services when the government has no right to make such a
claim.

[13]       
There is a disagreement between the parties about the nature of a health
care services claim.  Counsel for the Attorney General and Ms. Gosselin submit
that the Act does not create a new cause of action but merely expands
the scope of permissible damages recoverable in an action based on negligence
or other wrongful act or omission.

[14]       
Counsel for the defendants submit that the Act creates a new
statutory cause of action.  I tend to agree with the defendant’s counsel on
this issue.  The Act does create a statutory cause of action in favour
of the government.  I think that s. 2(1) of the Act also creates a
statutory right to recover specific costs in addition to damages actually
suffered by the beneficiary.  In addition, the provisions of ss. 3(3) and 3(4)
of the Act strongly suggest that the legislature regards a health care services
claim as a new and distinct cause of action.  However, on the view I take of
the matters before me, I do not find it necessary to decide that issue.

[15]       
The Act gives the government four different ways to recover the
costs of health care services.  Section 3(1) of the Act obligates a
beneficiary who commences a legal proceeding against a wrongdoer for damages
for personal injury or death to include a health care services claim in the
legal proceeding.  Section 3(3) provides that the Court must permit amendment
of the originating documents up to six months after the date on which the
originating documents were filed in the Court if a health care services claim has
not been included in a legal proceeding.  Section 6(1) of the Act
permits the government to intervene in any proceeding referred to in s. 3 and
assume conduct of the health care services portion of that proceeding.  Section
7 provides that the government is subrogated to any right which a beneficiary
referred to in s. 2 has to recover past and future costs of health care services
under that section.  Finally, s. 8 provides that, despite s. 2 and independent
of its subrogated rights under s. 7, the government has a direct cause of
action against the wrongdoer and may commence legal proceedings in its own name
for the recovery of the past and future cost of health care services.

[16]       
Section 5 of the Act prohibits a beneficiary from discontinuing
or dismissing an action to which s. 3 applies without the consent of the
Minister being filed in Court and provides that the Court must not make any
order finally disposing of a legal proceeding referred to in s. 3(1) unless the
Court is satisfied that the government has been given written notice of a
commencement of a legal proceeding and written notice of the application for
the order for final disposition of the proceeding.

[17]       
In respect of actions commenced on or after the effective date of the Act,
a litigant has a legal obligation to include a claim for the cost of health
care services to which the government is subrogated and the government has a
direct right of action to recover those health care services.

[18]       
Section 24 relieves a litigant from the requirements of s. 3 of the Act
with respect to actions commenced before the effective date but does permit the
government a direct right of action.

[19]       
In particular, s. 24(1) makes the provisions of s. 8 applicable to
personal injuries suffered by a beneficiary before or after the Act came
into force.  However, s. 8 expressly provides that the government must not
commence a legal proceeding in its own right after the expiration of six months
after the expiration of a limitation period that applies to the beneficiary’s
right to commence a legal proceeding against the alleged wrongdoer in respect
of the personal injury.  Subject to any discoverability issues that limitation
period is two years.  Therefore on April 1, 2009 the government had a direct
right of action for a health care services claim in respect of any injury
suffered as a result of negligent conduct occurring two years and six months
prior to that date, but not in respect of any claim which arose earlier.

[20]       
In this case Ms. Gosselin’s cause of action arose on June 7, 2005. 
Therefore the government has no direct right of action against the defendant
under the Act.  As Ms. Gosselin commenced her action on March 1, 2007,
the provisions of s. 3, 4 and 5 of the Act do not apply to this
proceeding.

[21]       
In these circumstances the issue which arises is whether the Act
permits Ms. Gosselin to amend her claim to include a health care services claim.

[22]       
The central point of the defendants’ argument is that the Act should
be applied retrospectively only to actions commenced after its effective date. 
The defendants argue that the Act does apply retrospectively to permit
the government to commence its own action under s. 8 but does not apply
retrospectively to permit a claim under s. 8, where the limitation date for the
bringing of an action for personal injury has expired.  In this case the
parties agree that the limitation date for the government to bring action under
s. 8 had expired prior to April 1, 2009.

[23]       
This application requires consideration of two principles of statutory
interpretation.  The first is the overriding principle stated by the Supreme
Court of Canada in Re: Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 set
out at para. 21 as follows:

21     Although
much has been written about the interpretation of legislation (see, e.g., Ruth
Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the
Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of
Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada
(2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best
encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone. At p. 87 he states:

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

Recent cases which have cited
the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow
Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.

[24]       
The second principle of statutory construction is the presumption that
in the absence of express words to the contrary a statutory change in the law
is presumed not to have retrospective effect.   Counsel for the defendants cited
a number of decisions in support of the presumption including the decisions of
the British Columbia Court of Appeal in Hornby Island Trust Committee v.
Stormwell (1998), 30 B.C.L.R. (2d) 383 and Krangle (Guardian ad litem)
v. Brisco 2000 BCCA 147.

[25]       
In Krangle Chief Justice McEachern, although in dissent, summarized
the underlying principle as follows:

62     There
is a great deal of jurisprudence supporting this principle. It was explained in
the following terms by Duff C.J.C. in Spooner Oils Ltd. v. Turner Valley Gas Conservation
Board, [1933] S.C.R. 629 at 638:

·        
A legislative enactment is not to be read as prejudicially
affecting accrued rights, or "an existing status" (Main v. Stark),
unless the language in which it is expressed requires such a construction. The
rule is described by Coke as a "law of Parliament" (2 Inst. 292),
meaning, no doubt, that it is a rule based on the practice of Parliament; the
underlying assumption being that, when Parliament intends prejudicially to
affect such rights or such a status, it declares its intention expressly,
unless, at all events, that intention is plainly manifested by unavoidable
inference.

63     In
Gustavson, (supra) Dickson J. at p. 282 wrote:

·        
The rule is that a statute should not be given a construction
that would impair existing rights as regards person or property unless the
language in which it is couched requires such a construction: Spooner Oils Ltd.
v. Turner Valley Gas Conservation Board at p. 638. The presumption that
vested rights are not affected unless the intention of the legislature is clear
applies whether the legislation is retrospective or prospective in operation…
(Emphasis added.)

Dreidger, 3d ed., at 530 explains the principle as follows:

·        
To deprive individuals of existing interests or expectations that
have economic value is akin to expropriation without compensation, which has
never been favoured by law. To worsen the position of individuals by changing
the legal rules on which they relied in arranging their affairs is arbitrary
and unfair. Where the application of new legislation creates special prejudice
for some, or windfalls for others, the burdens and benefits of the new law are
not rationally or fairly distributed. These effects may be hard on the
individuals involved and they undermine the general security and stability of
the law. For these reasons interference with vested rights is avoided in the
absence of a clear legislative directive.

64     The
principle itself seems clear enough. The difficulty, however, is in identifying
the kinds of rights that will be protected by the principle. Academics and
others have debated this requirement in various writings but I find much more
assistance in the decided cases, many of which recognize immunity from suit as
a vested right.

[26]       
In Martin v Perrie [1986] 1 SCR 41, the Supreme Court also
reaffirmed the passage from Chief  Justice Duff’s decision in Spooner Oils
Ltd v Turner Valley Gas Conservation Board [1933] SCR 629, quoted by Chief Justice
McEachern in Krangle.

[27]       
The authorities require me to read the words of the Act in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act and the intention of
the legislature.  It is with respect to the last consideration, that is, the
intention of the legislature, that I may take into account the
presumption against retrospectivity.

[28]       
In this case, there is no question that the object of the Act is
to permit the government to recover health care services costs from persons
whose wrongful acts have necessitated the incurring of those health care services
costs.  However, it is quite clear that the legislature intended the Act to
include transitional provisions.  All counsel who appeared before me
agreed that the Act does not give the government a direct right of
action to collect health care services costs from the defendants because the
limitation period set out in s. 8 expired prior to April 1, 2009.

[29]       
Section 24 of the Act provides as follows:

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):

[30]       
Section 24(1) provides that the Act applies in relation to any personal
injury suffered by a beneficiary whether before or after the
sub-section comes into force.  However, sub-section (2) provides that the
requirements of ss. (3), (4) and (5) do not apply in relation to legal
proceedings commenced before the sub-section comes into force.  Sub-section
(2) therefore makes it clear that the plaintiff in this action has no
obligation to make a health care services claim, no obligation to notify the government
of a health care services claim, and no obligation to notify the government
prior to the final disposition of her claim.  However, if Ms. Gosselin does
have a right to make a health care services claim the government is by virtue
of s. 7 of the Act subrogated to any amounts recovered by her in respect
of that claim.

[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
fraught with the potential for injustice.  The cost of health care services is
in many cases 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 will result 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 before the Act came
into force.  The presumption against retrospectivity set out in the cases
referred to above together with the internal indications in the Act
itself lead me to conclude that s. 2 of the Act has no application to
actions commenced prior to the Act coming into force.

[38]       
I therefore conclude that the amendment sought discloses no reasonable cause
of action and dismiss the application for the amendment on that ground.

[39]       
I would also dismiss the application to amend on the grounds that it is
not just and convenient to permit such a claim to be advanced.  It is clear
that Ms. Gosselin will obtain no benefit from advancing the claim and has no
legal obligation to do so.  In these circumstances I consider the amendment to
be useless and unfair to the defendants.

[40]       
In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d)
145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of
Court in British Columbia allows a party to amend an originating process or
pleading. Amendments are allowed unless prejudice can be demonstrated by the
opposite party or the amendment will be useless. The rationale for allowing
amendments is to enable the real issues to be determined. The practice followed
in civil matters when amendments are sought fulfils the fundamental objective
of the civil rules which is to ensure the just, speedy and inexpensive
determination of every proceeding on the merits. See McLachlin and Taylor,
British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of
this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305,
309-10.

[41]       
In my view the proposed amendments to the statement of claim are useless
in that they provide no personal benefit to the plaintiff since any amount
recovered by the plaintiff as a result of the amendments would be held in trust
and ultimately paid to the government.

[42]       
Ms. Gosselin feels that she has a moral obligation to pursue a claim to
recover the health care services costs.  However I do not consider it to be
appropriate for the Court to impose moral obligations on defendants.  The
legislature has set out the circumstances in which the government is entitled
to recover the cost of health care services.  I do not consider it to be just
to the defendants to put them uniquely in the position of being exposed to a
claim that others in the same situation will not be required to answer.

[43]       
The application to amend is therefore dismissed.

[44]       
As between the plaintiff and defendants the costs will be in the cause.

[45]       
There will be no costs awarded to or against the Attorney General.

“The Honourable Mr. Justice Sewell”