IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130904

Docket: S125220

Registry:
Vancouver

Between:

British Columbia
Rapid Transit Company,
Greater Vancouver Transportation Authority doing business as Translink

Appellant

And

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

Respondent

Before:
The Honourable Madam Justice Gray

On
appeal from: An order of the Provincial Court of British Columbia, dated June
21, 2012 (Translink v. Her Majesty the Queen in Right of the Province of
British Columbia, Vancouver Registry No. 1029231).

Reasons for Judgment

INTRODUCTION

[1]            
Translink has appealed the decision of Judge Wingham dated June 21, 2012
in Translink v. Her Majesty the Queen in Right of the Province of British
Columbia, Provincial Court Action No. 1029231, Vancouver Registry (“Wingham
Decision”). Translink’s appeal was heard at the same time as the appeal by Her
Majesty the Queen in the Right of the Province of British Columbia (“Province”)
of the decision of Judge Dohm dated July 31, 2012 in Her Majesty the Queen
in Right of the Province of British Columbia v. Opel, Provincial
Court Action No. C62487, Nanaimo Registry (“Dohm Decision”). The hearing of the
appeals occupied two days.

[2]            
Both the Wingham Decision and the Dohm Decision raise questions of
statutory interpretation of the Health Care Costs Recovery Act, S.B.C.
2008, c. 27 (“HCCRA”). In particular, they both raise questions relating
to the effect of the HCCRA in cases where a party was injured and
commenced a lawsuit before the HCCRA came into force, but settled his or
her claim after the HCCRA came into force.

[3]            
The HCCRA permits the Province to recover health care costs
(“HCC”) from a wrongdoer who has caused injury to a beneficiary of the publicly
funded health care system. I will refer to such a beneficiary as an “MSP
Beneficiary”. As stated by Prowse J.A. writing for the court in British
Columbia (Attorney General) v. Beacon Community Services Society (“Beacon”),
2013 BCCA 317 at para. 4, “[t]he undisputed intent of the [HCCRA] is to
shift the burden of [HCC] from the public purse to wrongdoers who cause
personal injury to [MSP Beneficiaries].”

[4]            
The HCCRA does not apply to HCC provided in relation to the
operation of a motor vehicle if the wrongdoer is insured by the Insurance
Corporation of British Columbia (“ICBC”) or if compensation is paid or payable
by the Workers’ Compensation Board, as set out in s. 24(3). As a result, most
of the cases to which the HCCRA applies are occupiers’ liability claims
and motor vehicle cases involving insurers other than ICBC.

[5]            
Both appeals raise questions regarding s. 13 of the HCCRA, while
the Dohm Decision also raises issues concerning s. 8 of the HCCRA. The
Dohm Decision expressly declined to follow the Wingham Decision regarding s.
13.

[6]            
Both appeals raise questions of law which must be decided on the
standard of whether the decision under appeal was correct. See Perfect Auto
Repairs Ltd. v. Westway Roofing Ltd., 2005 BCSC 1627 at para. 5. The facts
are not in dispute in either appeal.

FACTS

[7]            
Debra Brack allegedly fell on July 18, 2007 at Translink’s Burrard
Street Skytrain station in Vancouver, B.C.

[8]            
On February 15, 2009, Ms. Brack commenced a lawsuit against Translink
(“Brack’s Lawsuit Against Translink”) claiming damages under the Occupiers
Liability Act, R.S.B.C. 1996, c. 337.

[9]            
The HCCRA came into force on April 1, 2009. I will refer to that
date as the “CIF Date”.

[10]        
On August 12, 2009, Ms. Brack’s counsel notified the Province about her
claim. On that same date the Province responded to Ms. Brack’s counsel that
notice was not required because the lawsuit began before the CIF Date, but that
the Province required notice before a settlement was entered into.

[11]        
The Province commenced a lawsuit against Translink on February 5, 2010
(“Province’s Brack HCC Lawsuit”), claiming the right to recover Ms. Brack’s HCC
arising from the July 18, 2007 fall pursuant to s. 8 of the HCCRA.
However, the Province did not serve the documents or advise Translink of the
Province’s Brack HCC Lawsuit until after January 13, 2011.

[12]        
In December 2010, Ms. Brack and Translink settled Ms. Brack’s claim, on
terms that they have not revealed to the Province or the court except that
Translink did not admit liability. It is Translink’s position that the terms of
settlement are privileged.

[13]        
It appears that Ms. Brack’s counsel advised the Province of the
settlement.

[14]        
On January 11, 2011, the Province notified Translink that the Province’s
position was that it was entitled to receive the prescribed notice of the
settlement from Translink pursuant to s. 13 of the HCCRA.

[15]        
On January 12, 2011, Translink advised the Province that Translink did
not agree that it was required to either notify the Province of the settlement
or obtain its approval to the settlement.

[16]        
 On January 13, 2011, the court pronounced an order dismissing Brack’s
Lawsuit Against Translink by consent.

[17]        
On February 1, 2011, the Province amended its claims in the Province’s
Brack HCC Lawsuit to substitute a claim against Translink for debt pursuant to
s. 13 in place of the claim under s. 8.

[18]        
On June 12, 2012, Judge Wingham held that Translink and Ms. Brack entered
into a settlement and Translink failed to give the Province the notice required
by s. 13(1). Judge Wingham held that, consequently, the Province has a right
under s. 13(5) to recover HCC from Translink. Judge Wingham directed the
parties to fix a date for argument about the quantum of the HCC.

[19]        
The Wingham Decision includes the following:

[25] There may be cases where [an MSP Beneficiary] settles a
claim for personal injury without an Action being commenced. If that occurs
after the [CIF Date] the operation of section 24(1) and section 13 would
require notice of the settlement to be provided. The [HCCRA], in my
view, is clear that it applies to any injury suffered by [an MSP Beneficiary]
whether before or after the [CIF Date] (section 24(1)).

[26] Similarly, a settlement may occur even though an Action
has been commenced. In such a case, while the provisions of the [HCCRA]
dealing with the need to make a claim for [HCC] (section 3), notice of the
proceeding (section 4) and notice of the final disposition of the legal
proceeding may not apply, the [Minister’s] right to notice of the proposed
settlement under section 13 of the [HCCRA] is unaffected.

[27] To conclude otherwise would, in my view, be illogical
and would be inconsistent with the object of the statute, that being the
recovery of costs paid by the government to [an MSP Beneficiary] under the [HCCRA]
where those costs are incurred as a result of the wrongdoing of a third-party.
The result would be that if a beneficiary commenced an action before the [CIF
Date] the [Minister] would not be entitled to notice of any proposed settlement
while if the [MSP Beneficiary] entered into negotiations without litigation
having been commenced and entered into a proposed settlement the [Minister]
would be entitled to notice of the proposed settlement and, failing such
notice, would be entitled to bring an action against the person liable to pay
under the proposed settlement.

[28] I conclude that the mere fact that litigation was
commenced prior to the [CIF Date] does not disentitle [the Minister] to notice
under section 13 of a proposed settlement.

[31] I conclude that [Translink] and Deborah Brack entered
into a settlement of a personal injury claim within the meaning of the [HCCRA]
and that [Translink] failed to provide notice of the proposed settlement to the
Province under section 13(1) of that Act. Consequently, I conclude that the
Province has a right, under section 13(5) of the [HCCRA] to recover from
[Translink] the total amount of past and future [HCC] relating to Ms. Brack’s
injury.

[32] The issue as to the quantum
of those costs remains to be argued and I direct the parties to attend with the
judicial case manager to fix a date to argue the issue of quantum of costs.

[20]        
The Dohm Decision includes the following:

[22] At para. 37 [of Gosselin], Sewell J. dealt with
the presumption against retrospectivity … and applied that presumption to the [HCCRA]:

My review of the [HCCRA]
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.

[23] I find that reasoning persuasive.

[24] Giving the [HCCRA] as a whole its plain meaning,
I find that s. 24(2) of the Act is merely a transitional provision. It exempts
from the application of the [HCCRA] sections 3, 4, and 5 specifically.
Giving the [HCCRA] this reading avoids the absurdity concern which led
to the result in [the Wingham Decision]. Moreover, it gives effect to the whole
[HCCRA] without importing any retroactive application. This possible
interpretation does not appear to have been put before my brother judge in [the
Wingham Decision].

[25] The submission that s. 13
gives rise to a second independent cause of action which is not subject to s.
24(2) cannot survive this analysis. If, as I have found, the notice
requirements of sections 3, 4 and 5 do not apply in relation to legal
proceedings commenced before s. 24(2) came into force, then s. 13 must have no
retrospective effect. I conclude that Section 13 plainly and simply applies to
cases which have arisen since the [HCCRA] came into force.

ANALYSIS

[21]        
Translink’s position is that the settlement of a lawsuit which was in
existence at the CIF Date (“Pre-CIF Lawsuit”) is not subject to s. 13 of the HCCRA.
Translink’s position is that applying s. 13 to the settlement of a Pre-CIF
Lawsuit is contrary to this court’s decision in Gosselin v. Sheppard,
2010 BCSC 755 [Gosselin], leads to absurd results, has a retrospective
effect which is not necessary, and is an unwarranted violation of the common
law rights of private parties to enter freely into contracts of their choice.

[22]        
The Province’s position is that s. 13 creates obligations and gives the
Province rights in respect of all settlements which are made following the CIF
Date. The Province’s position is that applying s. 13 to the settlement of a
Pre-CIF lawsuit is consistent with the decision in Gosselin, does not
lead to absurd results, does not have a retrospective effect, and reflects the
legislature’s choice to affect the common law rights of parties entering into
settlement of claims in which an MSP Beneficiary may have received or may in
future receive HCC.

[23]        
I discuss Gosselin and the cases which follow it below.

[24]        
The basic principles of statutory interpretation are not in issue, but
the parties differ on their application.

[25]        
It is common ground that the proper approach to statutory interpretation
is that set out in BellExpress Vu Limited Partnership v. Rex, 2002 SCC
42 at para. 26, namely, that:

…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.

[26]        
It is also common ground that in interpreting legislation, the court
should bear in mind that the legislature does not intend to produce absurd
consequences. In Rizzo v. Rizzo Shoes Ltd. [1998] 1 S.C.R. 27, Iacobucci
J. wrote as follows at para. 27:

In my opinion, the consequences
or effects which result from the Court of Appeal’s interpretation of ss. 40 and
40a of the ESA are incompatible with both the object of the Act and with
the object of the termination and severance pay provisions themselves. It is a
well established principle of statutory interpretation that the legislature
does not intend to produce absurd consequences. According to Côté, supra,
an interpretation can be considered absurd if it leads to ridiculous or
frivolous consequences, if it is extremely unreasonable or inequitable, if it
is illogical or incoherent, or if it is incompatible with other provisions or
with the object of the legislative enactment (at pp. 378-80). Sullivan echoes
these comments noting that a label of absurdity can be attached to
interpretations which defeat the purpose of a statute or render some aspect of
it pointless or futile (Sullivan, Construction of Statutes, supra,
at p. 88).

[27]        
The principle of statutory construction that the court should presume
that the legislature did not intend a statute to have retroactive effect was
well-summarized by Sewell J, in Gosselin at paras. 24-27, as follows:

[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]        
Another principle of statutory interpretation is that common law rights
are held not to have been taken away or affected by a statute unless it is so
expressed in clear language, or must follow by necessary implication, and in
such cases, only to such extent as may be necessary to give effect to the
intention of the Legislature clearly manifested. See Etobicoke (Township)
Board of Education v. Highbury, [1958] S.C.R. 196.

a) Gosselin

[29]        
Gosselin involved a Pre-CIF Lawsuit, but did not involve a
settlement. Ms. Gosselin was an MSP Beneficiary. Ms. Gosselin alleged that she
had been injured on June 7, 2005, and she started a lawsuit on March 1, 2007,
both events being prior to the CIF Date. Ms. Gosselin sought to amend her Pre-CIF
Lawsuit after the CIF Date to include a claim for HCC pursuant to s. 2 of the HCCRA.
Justice Sewell. dismissed her application on the basis that s. 2 did not apply
to Pre-CIF Lawsuits, even though s. 2 is not one of the sections which s. 24(2)
specifically states does not apply to Pre-CIF Lawsuits.

[30]        
Sewell J. wrote as follows at paras. 34 – 38:

[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.

[31]        
In other words, Sewell J. concluded that it was anomolous to permit an
MSP Beneficiary to add a claim for HCC to a Pre-CIF Lawsuit when the
legislature had specifically excluded Pre-CIF Lawsuits from ss. 3-5. The
obligation of an MSP Beneficiary to claim HCC only arises pursuant to s. 3, and
that section is not applicable to Pre-CIF Lawsuits.

[32]        
As set out in para. 37, Sewell J. concluded that “s. 2 of the [HCCRA]
has no application to [Pre-CIF Lawsuits].” He did not consider s. 13 or address
whether it applies to Pre-CIF Lawsuits. He limited his conclusion to whether s.
2 of the HCCRA applied to Pre-CIF Lawsuits, and did not write in Gosselin
that the entire HCCRA had no application to Pre-CIF Lawsuits.

[33]        
In Fong v. Deglan, 2010 BCSC 756 [Fong], Sewell J. wrote
as follows at paras. 3 – 4:

[3] In my view the issues raised in this application are
identical to those raised in [Gosselin]. For the reasons which I set out
in that application I order that this application be dismissed.

[4] In this case the defendants
raised an additional ground for opposing the amendment based on the pendency of
the trial date. As I have decided that the Act has no application to actions
commenced prior to its effective date I do not find it necessary to deal with
that additional ground.

[34]        
 Translink argued that Fong therefore decides that the HCCRA
does not apply to Pre-CIF Lawsuits and could not apply to settlement of such
lawsuits. In my view that is not a correct reading of Fong. The
application in Fong was dismissed for the reasons set out in Gosselin,
which were that s. 2 does not apply to Pre-CIF Lawsuits. The case considered
legal proceedings but not settlements.

[35]        
Justice Sewell’s reference in para. 4 of Fong was a reference to
his decision in Gosselin, and he summarized it as a decision that the HCCRA
has no application to Pre-CIF Lawsuits. That summary may have been an
oversimplification because it does not refer specifically to s. 2, but a case
is authority only for the issues it decided. The issue on appeal here relates
to s. 13, which was not under consideration in either Gosselin or Fong.
The same comments apply to Jack v. Tekavec, 2010 BCSC 1773.

[36]        
Translink’s counsel referred to para. 15 of Gosselin, which
refers to the government having only four different ways to recover HCC, and
refers to s. 3(1) (which requires an MSP Beneficiary to include a HCC claim),
s. 6(1) (which permits the government to intervene and assume conduct of the
HCC portion of a s. 3 claim), s. 7 (which gives the government a subrogated
right), and s. 8 (which gives the government a direct right of action against
the wrongdoer). That list does not include s. 13. However, Sewell J. was not
considering a case in which there had been a settlement or proceedings under s.
13, and the omission of s. 13 from that list is not significant.

[37]        
While the reasoning in Gosselin is persuasive concerning s. 2 of
the HCCRA, it does not address the effect of a post-CIF Date settlement
of a Pre-CIF Lawsuit, and does not decide the issues in this appeal.

b)       Absurdity

[38]        
Translink argued that it would be absurd to interpret s. 13 to apply to
the settlement of a claim made by an MSP Beneficiary in a Pre-CIF Lawsuit.

[39]        
Counsel referred to many sections of the HCCRA in argument.
Sections 1 – 13 and 24 of the HCCRA are set out in their entirety in
Appendix A to these reasons for judgment.

[40]        
The clear words of s. 13 set out a series of obligations relating to
settlements, including the obligation in s. 13(1) on a person who would be
making payment under a settlement (“Payor-Settler”) to give a prescribed notice
to the minister of health (“Minister”). Section 13(5) gives the Province the
right to recover HCC as a debt from such a Payor-Settler who fails to provide
the prescribed notice.

[41]        
I will briefly paraphrase s. 13. Section 13(1) provides that a claim
against a wrongdoer for personal injury suffered by an MSP Beneficiary must not
be settled unless the “Payor-Settler” gives a prescribed form of notice to the
Minister and the Minister gives written consent to the settlement. Subsections
13(3) and (4) provide that before giving consent under 13(1)(b), the Minister
may ask the Payor-Settler to provide necessary information, and the
Payor-Settler must comply with that request. Section 13(5) states that if the
Payor-Settler does not give notice as required by s. 13(1), the government has
a right to recover the total past and future HCC relating to the MSP
Beneficiary’s injury as a debt due to the government, and s. 17 regarding joint
and several liability does not apply. Section 13(8) provides that a release
given in relation to a claim described in s. 13(1) is void unless the person to
whose benefit the release is given (presumably the Payor-Settler) gives the
Minister written notice in the prescribed form and the Minister consents in
writing. Section 13(9) provides that s. 13 applies “whether or not a legal
proceeding has been commenced in relation to a [HCC] claim.”

[42]        
Translink’s position is that it is absurd to apply s. 13 to the
settlement of claims which have been pursued by a Pre-CIF Lawsuit. Translink
argued that it is absurd because there is nothing government could do upon
receiving a notice about the settlement of a lawsuit commenced prior to the CIF
Date, and therefore it is pointless to require the giving of such a notice.

[43]        
There are several flaws in that argument. First, the words of ss. 13 and
24 together suggest that s. 13 applies to settlement of Pre-CIF Lawsuits and to
injuries suffered before the CIF Date. Section 13(9) states that s. 13 applies
whether or not a lawsuit has been commenced. Section 24(1) states that the HCCRA
applies in relation to any personal injury suffered by an MSP Beneficiary,
whether before or after the CIF Date.

[44]        
Second, the words of s. 13(5) state that the government “has a right to
recover” from a Payor-Settler who fails to give the prescribed notice. The
government’s rights arise upon the failure to give the notice. Section 13(5)
creates the government’s cause of action for debt arising upon the failure to
give the notice.

[45]        
Third, the limitation period in s. 8(5)(b)(v) permits the Province to
commence a s. 8 claim within 6 months of receipt of the s. 13(1)(a) notice,
unless one of the other steps listed have occurred earlier.

[46]        
It is undisputed that s. 13 applies to the settlement of claims for
injuries suffered prior to the CIF Date if the MSP Beneficiary had not
commenced a Pre-CIF Lawsuit. As Judge Wingham set out in paras. 25-27 quoted
above, it would be illogical and inconsistent with the object of the HCCRA
for settlements of pre-CIF Date injuries to be treated differently depending on
whether a Pre-CIF Lawsuit had been commenced.

[47]        
Section 13 refers to the act of settling a claim, and s. 13(9) states
that it applies whether or not a legal proceeding has been commenced in
relation to a HCC. It would have been possible for the legislation to
distinguish between the settlement of claims which were being pursued in a
lawsuit and those that were not, but the words of s. 13 demonstrate that all
settlements are affected by the section.

[48]        
I struggled with whether, from the perspective of an alleged wrongdoer,
the situation will be different depending on whether a Pre-CIF Lawsuit goes to
trial. If a Pre-CIF Lawsuit has been commenced (which will be for injuries
suffered before the CIF Date), pursuant to Gosselin, the MSP Beneficiary
cannot include a s. 2 claim for HCC. If the court decides the case, the
Minister will not be entitled to notice and will not be involved and the award
will not include HCC. In contrast, if the claim is settled rather than
proceeding to trial, the Payor-Settler is required to give the prescribed
notice and obtain the Minister’s consent to the settlement, and failure to do
so will give the government a s. 13(5) right to claim debt equal to the HCC
from the Payor-Settler. As a result, the alleged wrongdoer’s perspective may be
that it is required to pay HCC if a case settles, but will not be required to
pay HCC if the matter is decided by the court.

[49]        
However, s. 13 does not explain the basis on which the Minister would
consent to a settlement. It may be that the government would not demand HCC for
Pre-CIF Lawsuits except in unusual circumstances. As argued by the Province,
the Minister’s decision whether or not to consent to a proposed settlement
might be the subject of judicial review. There is no evidence before me about
the basis upon which the Minister approves or withholds approval of proposed
settlements.

[50]        
In my view, it is not absurd to apply s. 13 to all settlements which
occur after the CIF Date, even those in which a Pre-CIF Lawsuit was commenced. Further,
it is consistent with the object of the HCCRA of shifting the burden of
HCC from the public purse to wrongdoers.

[51]        
Section 8 of the HCCRA provides that the government has an
independent right to sue a wrongdoer for an MSP Beneficiary’s HCC, and sets out
a limitation period. Ms. Opel’s counsel argued that the limitation period in s.
8 should apply to any claims by the government under s. 13.

[52]        
Section 8(5) is a complicated section, and sets out a limitation period
for a s. 8(2) claim which is the later of two dates. One of those two dates is
the earliest of a series of dates, including the date that is 6 months after
the date on which the Minister first receives notice under s. 13(1)(a). It is
not clear how this limitation section should be read in cases where the
Minister does not receive notice under s. 13(1)(a). The clear words of s. 8(5)
refer to s. 8(2) lawsuits, and do not suggest that the limitation period would
apply to the Province’s claims under s. 13(5).

[53]        
Ms. Opel’s counsel argued that it would be unfair for the government to
be able to miss the s. 8 limitation period and lose its right to commence an
action under s. 8 and then turn around at some indefinite point in the future
and commence an action under s. 13 if it did not approve the settlement of an
action. In a case where the Payor-Settler gave the required notice, s.
8(5)(b)(v) explicitly provides for a limitation period extending 6 months after
the date on which the Minister first receives the s. 13 notice (unless one of
the other listed events occurred earlier). This suggests that the legislature
intended that the s. 8 limitation period would extend beyond the giving of a s.
13 notice.

[54]        
In addition, the wrong which triggers the government’s right under s. 13
is the Payor-Settler’s failure to comply with the requirement to give the
Province notice of the settlement. It is rational for a limitation period to
commence with the wrongful event. This does not make application of s. 13 to
Pre-CIF Lawsuits illogical, nor does it import the limitation period in s. 8 to
claims under s. 13.

c)       Retroactivity

[55]        
Translink argues that s. 13 has retroactive effect, while the Province
argues that it is prospective from the CIF Date.

[56]        
Section 13 sets out obligations on settling parties where the settlement
occurs after the CIF Date. Its focus is on the act of settling a claim, rather
than on whether or not there is a lawsuit related to the claim. As a result, it
does not have retroactive effect.

d)       Alteration of Common Law Rights

[57]        
Translink argues that the HCCRA alters the common law right of
freedom of contract. The Province agrees, and argues that it is expressly set
out in the HCCRA.

[58]        
Section 13(1) provides that a claim against an alleged wrongdoer for
damages arising from an MSP Beneficiary’s personal injury “must not be settled”
unless the payor gives the prescribed notice and obtains the Minister’s
consent. In my view that reflects a clear choice by the legislature to abrogate
the common law right to freely settle claims for personal injury.

e)       Summary

[59]        
The clear words of ss. 13 and 24 of the HCCRA impose an
obligation on Payor-Settlers to give notice to the Minister of settlements, and
if the Payor-Settler fails to give the prescribed notice, the government has
the right to recover HCC as a debt from the Payor-Settler. There is no reason to
exclude the settlement of Pre-CIF Lawsuits from the group of all settlements
referred to in s. 13. Such obligation to give notice and right for government
to recover HCC from the Payor-Settler are consistent with the object of the HCCRA
of recovering HCC from wrongdoers. Such obligation is not retroactive because
it affects conduct occurring after the CIF Date, such conduct being the
settling of claims. Section 13 impairs the common law right to settle lawsuits,
but the words of the statute say that clearly, and it is consistent with the
object of the HCCRA. While the Gosselin case applies to lawsuits
by MSP Beneficiaries commenced before the CIF Date, it addresses the right of
the MSP Beneficiary to add a s. 2 claim, rather than the obligation of a
Payor-Settler and the right of the government under s. 13 in those cases when a
Pre-CIF Lawsuit settles.

[60]        
The Wingham Decision was correct. As a result, Translink’s appeal is
dismissed. If the parties are unable to resolve the question of costs, they
have liberty to apply for an order. Counsel should estimate the time required
for a hearing on costs, and contact the registry to schedule a hearing of the
appropriate length before me.

“Gray J.”

Appendix A

1 In this Act:

"beneficiary" has
the same meaning as in the Medicare Protection Act, and includes a
former beneficiary under that Act

"future cost of health care
services" means the present value of the estimated total cost of all
health care services that are provided, or are reasonably expected to be
provided, to a beneficiary as a direct or indirect result of a personal injury
described in section 2 after the date of settlement or, if there is no
settlement, after the first day of trial;

"health care
practitioner" means any of the following:

(a) a medical practitioner;

(b) a person authorized to practise
as a member of a health care profession or occupation that may be prescribed
under section 25 (2) (a) [regulations];

"health care services"
means

(a) benefits as defined in the Hospital
Insurance Act,

(b) benefits as defined in the Medicare
Protection Act,

(b.1) benefits as defined in the Pharmaceutical
Services Act,

(c) payments made by the government
under the Continuing Care Act,

(d) expenditures, made directly or
through one or more agents or intermediate bodies, by the government for
emergency health services provided in respect of a beneficiary under the Emergency
Health Services Act, and

(e) any other act or thing,
including, without limitation, the provision of any health care treatment, aid,
assistance or service or any drug, device or similar matter associated with
personal injury,

(i) for which a payment or
expenditure is or may be made, whether directly or through one or more agents
or intermediaries, by the government in respect of a beneficiary, and

(ii) that is designated by
regulation under section 25 (2) (b) [regulations];

"health care services
claim", in relation to personal injury suffered by a beneficiary,
means a claim for the recovery of the past and future costs of health care
services attributable to that personal injury;

"past cost of health care
services" means the total cost of all health care services provided to
a beneficiary as a direct or indirect result of a personal injury described in
section 2, including those services provided up to and including the date of
settlement or, if there is no settlement, the first day of trial;

"wrongdoer" means

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

(b) a person who is responsible at
law for the acts or omissions of a person referred to in paragraph (a),

but does not include the
beneficiary.

Beneficiary’s right to recover

2 (1) 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
beneficiary may, subject to sections 6 [government may intervene in proceeding
or assume conduct of claim] and 20 (2) and (3) [payments to the
government], recover from the wrongdoer

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

(b) the future cost of health care
services.

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

(3) For the purposes of subsection
(1) but subject to section 20 (2) and (3) [payments to the government],
payment or expenditure by the government, whether directly or through one or
more agents or intermediaries, under any of the Acts referred to in the
definition of "health care services" or under any other government
plan or scheme of insurance for past and future costs referred to in subsection
(1) must not be construed to affect the right of the beneficiary to recover
those costs in the same manner as if those costs are paid or payable by the
beneficiary.

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

Obligation to claim

3 (1) If, in his or her own
name or as a member of a class of persons under the Class Proceedings Act,
a beneficiary referred to in section 2 (1) [beneficiary’s right to recover]
of this Act or his or her personal or other legal representative commences a
legal proceeding against a person alleged to be the wrongdoer for damages
arising from or related to the beneficiary’s personal injury or death, the
beneficiary or his or her personal or other legal representative must include a
health care services claim in that legal proceeding.

(2) Subsection (1) does not apply
if the government has already done either of the following:

(a) settled the health care
services claim referred to in subsection (1);

(b) commenced a legal proceeding
under section 8 (2) [government has independent right to recover] to
recover the past and future costs of health care services.

(3) If a health care services claim
has not been included in a legal proceeding described in subsection (1), the
court must permit amendment of the originating documents, up to 6 months after
the date on which the originating documents were filed with the court, in order
to provide for that inclusion.

(4) Nothing in the Limitation Act
prevents inclusion of a health care services claim under subsection (3) if the
original legal proceeding for damages under subsection (1) is brought within
the time limited for doing so under that Act.

Requirement to notify government of claim

4 (1) Within 21 days after
commencing a legal proceeding referred to in section 3 (1) [obligation to
claim], written notice of the legal proceeding must be given to the
government

(a) by the beneficiary or his or
her personal or other legal representative, or

(b) if the beneficiary or his or
her personal or other legal representative is represented in the legal
proceeding by a lawyer, by the lawyer or by the beneficiary or his or her
personal or other legal representative.

(2) Notice under subsection (1)
must be in the prescribed form and include a copy of the originating documents
for the legal proceeding.

Final disposition of claim or legal
proceeding

5 (1) A legal proceeding
referred to in section 3 (1) [obligation to claim] must not be
discontinued or dismissed by consent unless the consent of the minister is
filed with the court.

(2) The court must not set aside,
dismiss or strike out a health care services claim unless the court is
satisfied that the government has been given a reasonable opportunity to appear
and make representations.

(3) The court must not make an
order finally disposing of a legal proceeding referred to in section 3 (1) [obligation
to claim] unless the court is satisfied that the government has been given
both of the following:

(a) the written notice required
under section 4 [requirement to notify government of claim];

(b) written notice of the
application for the order of final disposition.

Government may intervene in proceeding or
assume conduct of claim

6 (1) The government may, in
relation to a legal proceeding referred to in section 3 (1) [obligation to
claim], do any of the following:

(a) intervene in the proceeding;

(b) on written notice to the
beneficiary or his or her personal or other legal representative, as the case
may be, assume conduct of the health care services claim portion of the
proceeding.

(2) In assuming conduct under
subsection (1) (b), the government may, as it sees fit, pursue, discontinue or
settle all or any part of the health care services claim.

Government has subrogated right

7 (1) The government is
subrogated to any right of the beneficiary referred to in section 2 [beneficiary’s
right to recover] to recover the past and future costs of health care
services under that section.

(2) For the purposes of subsection
(1), the government may commence legal proceedings, in its own name or in the
name of the beneficiary, for recovery of those past and future costs of health
care services.

(3) If a legal proceeding is
commenced under section 3 (1) [obligation to claim] after the
commencement of a legal proceeding referred to in subsection (2) of this
section, the 2 legal proceedings are, unless the court orders otherwise, to be
consolidated.

Government has independent right to
recover

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.

Government proceedings

9 (1) The government need
not obtain the permission of the beneficiary or his or her family members or
personal or other legal representative to commence a legal proceeding under
section 7 (2) [government has subrogated right] or 8 (2) [government
has independent right to recover].

(2) It is not a defence to a legal
proceeding commenced by the government under section 8 (2) [government has
independent right to recover] that a claim for damages for the
beneficiary’s personal injury or death has been adjudicated or settled unless

(a) the claim or settlement
included a health care services claim, and

(b) in the case of a settlement,
the requirements of section 13 [settlement of a health care services claim]
have been met.

(3) It is not a defence to a legal
proceeding commenced in respect of a beneficiary for a claim, other than a
health care services claim, for damages for the beneficiary’s personal injury
or death that a legal proceeding commenced by the government under section 7
(2) [government has subrogated right] or 8 (2) [government has
independent right to recover] has been adjudicated or settled.

(4) Despite subsection (2), it is a
defence to a legal proceeding commenced by the government under section 8 (2) [government
has independent right to recover] that a claim for damages for the
beneficiary’s personal injury or death has been adjudicated or settled before
the date that section 8 (2) comes into force.

Information from insurer

10 (1) This section applies
to an insurer of a person if an act or omission of the insured person has or
may have caused or contributed to the personal injury or death of a
beneficiary.

(2) An insurer must, within 60 days
after learning of the matter described in subsection (1), notify the minister
of those circumstances in the prescribed form.

(3) The minister may request the
insurer to provide the minister with one or more of the following:

(a) a copy of the insured person’s
insurance policy;

(b) if the matter was reported to
the police, a copy of the police report, if any;

(c) a copy of any affidavit,
pleadings or application, as they relate to legal proceedings in respect of the
matter.

(4) The insurer must comply with
the minister’s request in the manner and before the date specified in the
request.

(5) Provision of information under
this section is not an admission or acknowledgement of liability in relation to
the insured.

(6) Subsection (2) does not apply
in respect of a matter that the insurer learns of before that subsection comes
into force.

Beneficiary’s duty to cooperate

11 (1) A beneficiary and his
or her personal or other legal representative must cooperate fully with the
minister and the government and their agents and legal counsel in the government’s
recovery of past and future costs of health care services under this Act in
respect of that beneficiary.

(2) Without limiting subsection
(1), the beneficiary or his or her personal or other legal representative must

(a) at the request of the minister
and as often as the minister considers necessary, do one or more of the
following:

(i) provide the minister with
records or information that are in the possession or under the control of the
beneficiary or the personal or other legal representative and relate to the
following:

(A) the nature and extent of the
beneficiary’s injury;

(B) the treatment, current
condition and prognosis of the injury;

(C) the rehabilitation of the
beneficiary in respect of the injury;

(D) the cause, origin and
circumstances of the injury;

(E) the health care services that
have been received or may be required by the beneficiary in relation to the
injury;

(ii) provide evidence relating
directly or indirectly to the health care services claim

(A) in any form required by the minister,
and

(B) in any proceeding or other
forum required by the minister,

(b) at the request and expense of
the minister and as often as the minister considers necessary, do one or more
of the following:

(i) allow a health care
practitioner selected by the minister to examine the beneficiary;

(ii) allow any evaluation required
by the minister to be performed by a person selected by the minister;

(iii) obtain and provide to the
minister a certificate or report, in any form required by the minister, of an attending
health care practitioner as to one or more of the following as may be requested
by the minister:

(A) the nature and extent of the
beneficiary’s injury;

(B) the treatment, current
condition and prognosis of the injury;

(C) any other aspect of the beneficiary’s
injury or rehabilitation,

(c) provide the persons assisting
the government in its efforts to recover the past and future costs of health
care services referred to in subsection (1) with any cooperation reasonably
required by those persons,

(d) comply with a request under
paragraph (a) or (b) in the manner and before the date specified in the
request, and

(e) comply with the requirements of
section 12 [beneficiary’s duty to give notice to minister before settlement].

Beneficiary’s duty to give notice to
minister before settlement

12 At least 21 days before a
beneficiary referred to in section 2 [beneficiary’s right to recover] or
his or her personal or other legal representative enters into any settlement
relating to the personal injury referred to in that section, the beneficiary or
personal or other legal representative must give notice to the minister in the
prescribed form and in accordance with the regulations, if any, under section
25 (2) (d) [regulations].

Settlement of claims

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

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

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

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

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

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

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

(3) Before consenting under
subsection (1) (b), the minister may request the person referred to in
subsection (1) (a) to provide the minister with any records or information that
the minister considers necessary to evaluate the proposed settlement as it
relates to the government’s recovery of past and future costs of health care
services in respect of the beneficiary.

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

(5) If the person referred to in
subsection (1) (a) does not give notice in accordance with that provision,

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

(b) the total amount of the past
and future costs of health care services referred to in paragraph (a) may be
recovered as a debt due from that person to the government, and

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

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

(7) The time period referred to in
subsection (6) is the 60-day period following the date of the minister’s
consent under subsection (1) (b) or such longer period as may be approved by
the minister on request of the person who is liable to make payments required
under the settlement.

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

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

(b) the minister consents in
writing to the release.

(9) This section applies whether or
not a legal proceeding has been commenced in relation to the health care
services claim.

Application of
this Act

24 (1) Subject to this
section, this Act applies in relation to any personal injury suffered by a
beneficiary, whether before or after this subsection comes into force.

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

(3) This Act does not apply in
relation to health care services that are provided or are to be provided to a
beneficiary in relation to

(a) personal injury or death
arising out of a wrongdoer’s use or operation of a motor vehicle if the
wrongdoer has, when the injury is caused, coverage under the plan, as those
terms are defined in the Insurance (Vehicle) Act,

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

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

(4) In subsection (3) (c):

"compensation"
includes a health care benefit provided under the Workers Compensation Act;

"personal injury" includes occupational
disease as defined in the Workers Compensation Act.