IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130904

Docket: S126678

Registry:
Vancouver

Between:

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

Appellant

And

Taryn Kayley Opel

Respondent

Before:
The Honourable Madam Justice Gray

On
appeal from: An order of the Provincial Court of British Columbia dated July
31, 2013 (Her Majesty the Queen in Right of the Province of British Columbia
v. Opel, Nanaimo Registry No. C62487)

Reasons for Judgment

INTRODUCTION

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

[2]            
Both the Dohm Decision and the Wingham 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]            
As stated in the reasons for judgment in the Translink Appeal:

[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

[4]            
Mr. Shevelyov alleged that he was in a motor vehicle accident with Ms.
Opel on May 22, 2008.

[5]            
On February 18, 2009 and March 2, 2009, an employee of the Ministry of
Health corresponded with a non-ICBC insurer and referred to HCC of Mr.
Shevelyov.

[6]            
On March 25, 2009, Mr. Shevelyov commenced a lawsuit against Ms. Opel
(“Shevelyov’s Lawsuit Against Opel”) claiming damages.

[7]            
The HCCRA came into force one week later, on April 1, 2009. I
will refer to that date as the “CIF Date”.

[8]            
On July 21, 2009, an employee of the Ministry of Health wrote Ms. Opel’s
insurer advising of the CIF Date.

[9]            
On January 4, 2011, counsel for Mr. Shevelyov provided the Province with
notice of his claim. He purported to do so under s. 12 of the HCCRA, but
he was not required to give notice at that time under that section or any other
section of the HCCRA.

[10]        
On March 11, 2011, the Province commenced a lawsuit against Ms. Opel
(“Province’s Shevelyov HCC Lawsuit”) purporting to do so under section 8 of the
HCCRA.

[11]        
In March 2011, Mr. Shevelyov and Ms. Opel settled the claims in
Shevelyov’s Lawsuit Against Opel, and entered into a consent dismissal order.
Ms. Opel did not provide the Minister with notice of the settlement. The
Minister did not approve the settlement under section 13

[12]        
On January 11, 2012, the Province amended its claims in the Province’s
Shevelyov HCC Lawsuit to add a claim pursuant to section 13 of the HCCRA.

[13]        
On July 31, 2012, Judge Dohm held that section 13 only applies to cases
which have arisen since the CIF Date, and dismissed the Province’s claim. Judge
Dohm did not find it necessary to resolve the limitation period issue which
related to the Province’s section 8 claim.

ANALYSIS

[14]        
For the reasons set out in the reasons for judgment in the Translink
Appeal, s. 13 applies to the settlement of Mr. Shevelyov’s claim against Ms.
Opel, even though the Shevelyov’s Lawsuit Against Opel was a Pre-CIF Lawsuit. Ms.
Opel and Mr. Shevelyov entered into a settlement, and Ms. Opel failed to give
notice as required by s. 13(1) to the Province. Consequently, the Province is
entitled to recover Mr. Shevelyov’s HCC from Ms. Opel as a debt pursuant to s.
13(5).

[15]        
As a result of this conclusion about the Province’s s. 13 claim, it is
not necessary to consider the Province’s s. 8 claim.

SUMMARY

[16]        
The Province’s appeal of the Dohm Decision is allowed. If the parties
cannot agree on the quantum of Mr. Shevelyov’s HCC payable by Ms. Opel, the
question is referred to the Provincial Court for determination. 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.”