IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120130

Docket: 09-4841

Registry:
Victoria

Between:

Her
Majesty the Queen in Right of
the Province of British Columbia

Plaintiff

And:

Beacon
Community Services Society and
Ricky Gordon Fonger

Defendants

Before:
The Honourable Mr. Justice Williamson

Reasons for Judgment

[1]            
This is an application by the defendants, Beacon Community Services
Society and Rickey Gordon Fonger, to strike a claim by the plaintiff, Her
Majesty the Queen in Right of the Province of British Columbia. The Province is
seeking to recover health care costs from the defendant insurers. The question
is whether the Province is out of time.

[2]            
The injuries were sustained by one Martin Monych, November 4, 2006.
He commenced an action against Beacon Community Services Society and
Ricky Gordon Fonger June 5, 2007. The trial took place from January 5-16,
2009.

[3]            
The Health Care Costs Recovery Act, S.B.C. 2008, c. 27 (the
“HCCRA”), upon which the Province is relying, came into force April 1, 2009.
Reasons for judgment in Monych v. Beacon Community Services Society (2009
BCSC 562) case were issued April 28, 2009. Thus, the Act came into force
after the trial ended but before judgment.

[4]            
The Province commenced its action on October 27, 2009, and served the
defendants on October 8, 2010.

[5]            
The defendants say the Province is out of time and that the HCCRA,
which was proclaimed after the trial had completed (but before judgment was
issued), has no retroactive effect. They rely principally upon Gosselin v.
Shepherd, 2010 BCSC 755, and Fong v. Deglan, 2010 BCSC 756. Both
these cases concern s. 2 of the HCCRA, whereas the case at bar
concerns s. 8.

[6]            
Section 2 permits the beneficiary to make a claim for the recovery of
past and future costs of health care services. Section 8 permits the Province
to commence an independent claim for such costs. Section 8 reads, in part:

8 (1) Despite section 2 [beneficiary’s right to recover]
and independent of its subrogated right under section 7 [government has
subrogated right], if, as a direct or indirect result of the negligence or
wrongful act or omission of a wrongdoer, a beneficiary suffers a personal
injury for which the beneficiary receives or could reasonably be expected to
receive one or more health care services, the government may recover from the
wrongdoer

(a) the past cost of health care
services, and

(b) the future cost of health care
services.

(2) The government may commence a legal proceeding in its own
name for the recovery of the past and future costs of health care services
referred to in subsection (1).

(3) Subsection (1) applies whether or not the personal injury
was caused in whole or in part by the wrongdoer.

(4) The past and future costs of health care services
referred to in subsection (1) may be recovered as damages, compensatory damages
or otherwise.

(5) Subject to subsection (7), the government must not
commence a legal proceeding under subsection (2) after the later of the
following 2 dates:

(a) the date that is 6 months after
the expiration of the limitation period that applies to the beneficiary’s right
to commence a legal proceeding against the alleged wrongdoer for damages in
respect of the personal injury referred to in section 2 [beneficiary’s right
to recover];

(b) the earliest of the following
dates:

(i)  the date that is 6 months
after the date on which the government first receives notice under section 4 [requirement
to notify government of claim];

(ii)  the date that is 6 months
after the date on which the minister first receives notice or information under
section 10 [information from insurer];

(iii)  the date that is 6 months
after the date on which the minister is first provided with records or
information from the beneficiary or his or her personal or other legal
representative under section 11 (2) [beneficiary’s duty to cooperate];

(iv)  the date that is 6 months
after the date on which the minister first receives notice under section 12 [beneficiary’s
duty to give notice to minister before settlement];

(v)  the date that is 6 months
after the date on which the minister first receives notice under section 13 (1)
(a) [settlement of claims].

(6) The government may include in a legal proceeding
commenced under this section a claim for an order establishing liability for
the personal injury or death suffered by a beneficiary referred to in section 2
(1) [beneficiary’s right to recover] and the claim may be made even
after the expiration of the limitation period that applied to the beneficiary’s
right to commence a legal proceeding against the alleged wrongdoer, but any
order granted in respect of that claim has effect only in relation to the
health care services claim.

(7) Subsection (5) (b) does not
apply if the limitation period referred to in subsection (5) (a) has expired
before the date that subsection comes into force.

[7]            
Because I will refer to it below, I also set out s. 24 (2) of the
HCCRA which states:

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

[8]            
The defendants say that Sewell J.’s reasoning in Gosselin and Fong
applies to s. 8 as well, and that in any case, Fong is broader and
determinative. I assume, however, that Sewell J.’s comments with respect to
s. 8 are obiter.

[9]            
The defendants in the case at bar say the Province is out of time. This
turns on the meaning of s. 8(5) of the Act. It says the Province
may not commence an action after the latter of two dates. The first date is six
months after the expiry of the limitation period which applies to Mr. Monych.
That date is May 4, 2009. I come to this date by noting that the injury was
sustained November 4, 2006. The two year limitation period takes us to November
4, 2008. To this must be added the further six months set out in s. 8(5)(a)
which takes us to May 4, 2009.

[10]        
The second date is a little more difficult. It can be found in any one
of five ways set out in ss. 8(5)(b) (i), (ii), (iii), (iv) or (v).

[11]        
It appears that s. 8(5)(b)(i), depending as it does upon a notice
provision, does not apply as Monych was commenced in June 2007 before
the HCCRA came into force in April 2009.

[12]        
The calculation pursuant to s. 8(5)(b)(ii) arises out of the obligation
of an insurer to notify the government of a claim pursuant to s. 10 (a). Section
8(5)(b)(ii) does not apply as s. 10(6) states that the obligation to
notify the government does not arise if the insurer knew of the claim before
s. 10(2) came into force. That is the situation here.

[13]        
Section 8(5)(b)(iii) does not apply as this limitation period is set
with reference to the beneficiary’s obligation to comply with the minister’s
requests for information regarding the beneficiary’s claim pursuant to s. 11(2).
But the duty of the beneficiary to inform the minister was not triggered. Section
24(2) states that an obligation pursuant to s. 4(1) does not apply to
proceeding which commenced before the subsection came into force. Thus, the
minister had no notice, made no requests for information and no such
information was provided.

[14]        
Sections 8(5)(b)(iv) and (v) are not applicable as they concern the
obligation to give notice to the minister of a settlement. Monych did
not settle. It went to trial.

[15]        
As none of the s. 8(5)(b) dates apply here, it is the s. 8(5)(a)
date, May 4, 2009, which applies. As the Province commenced its action October
27, 2009, they are out of time and the defendants should succeed.

[16]        
I note this is consistent with Gosselin. Although that case
concerns the right of a beneficiary to recover pursuant to s. 2 and the
case at bar concerns the independent right of the government to recover
pursuant to s. 8, Sewell J. said the following two things. First, in para. 12
of Gosselin he said:

[12]      … 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.

In para. 19, he stated:

[19]      … 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.

[17]        
In Fong, Sewell J. stated at para. 4 that:

[4]        …I have decided that
the Act has no application to actions commenced prior to its effective
date…

[18]        
Finally, I note the Province submits that although six months after the
end of the limitation period is May 4, 2009, the province should not be held to
that date because at that time it had no knowledge of the claim. It relies upon
Novak v. Bond, [1999] 1 S.C.R. 808, 172 D.L.R. (4^th) 385, at para. 9
where Iacobucci and Major J.J., dissenting, said the “… effect of the
discoverability rule is to postpone the running of time until a reasonable
person, in the exercise of reasonable diligence, would discover the facts
necessary to maintain the action”.

[19]        
The defendants also rely upon Novak. They submit that McLachlin
J., as she then was, writing for the majority, was clear in para. 70 that
the running of time “cannot be postponed indefinitely”. They point to her
emphasizing the necessity for limitation periods to balance the interests of
plaintiffs and of defendants, and counsel refers to a number of sections in the
Limitation Act which set a series of ultimate limitations.

[20]        
In the HCCRA, the legislative assembly extended the limitation period
for the government’s independent claim pursuant to s. 8 by six months, and
set out in the act obligations both to notify and to cooperate with the
government. In balancing the rights of plaintiffs and defendants, I am
satisfied the legislature intended that the clear limitation periods set out in
s. 8 should prevail.

[21]        
As s. 8(5)(a) is the governing section here, I conclude the plaintiff
is out of time. The claim is dismissed.

“The
Honourable Mr. Justice Williamson”