New HCCRA decision on settlement notice and Ministry limitations
Friday, November 1, 2013
Susan Precious

On September 4, 2013, Madam Justice Gray released her reasons in Translink v. British Columbia, 2013 BCSC 1602. The issue in that case was the effect of the settlement notice provisions in Health Care Costs Recovery Act ("HCCRA") in cases where a party was injury and commenced a lawsuit before the HCCRA came into force.  The HCCRA came into force on April 1, 2009.

Notice of settlement: section 13

Section 13 of the HCCRA requires notice of settlement to the Ministry.

Translink argued that there was no requirement to provide notice of settlement to the Ministry for claims commenced prior to the HCCRA coming into force (and settled after) because it would be contrary to the Gosselin v. Sheppard decision.

The Court disagreed and found that there was an obligation to provide notice to the Ministry of such settlements.  Moreover, if there a failure to provide notice of settlements, section 13(5) of the HCCRA creates a right for the Ministry to recover health costs as a debt.   Gosselin was distinguished on the basis that it dealt with beneficiaries' claims under section 2 of the HCCRA.  At paragraph 59 the Court summarizes:

[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.

Limitation of Ministry's right to recover: section 8

Section 8 of the HCCRA deals with the limitations on the Ministry's right to recover.  There is a complex formula set out in section 8(5) to determine the Ministry's limitation periods.

In examining the wording of section 8(5), the Court found that section 8(5)(b)(v) extends the government's limitation period to six months after notice of settlement.

It is important to note that the Court did not consider section 8(7) of the HCCRA due to the relevant dates in Translink.  That section provides that all of the scenarios in section 8(5)(b) which might extend the Ministry's limitation period do not apply if the Ministry's limitation period in section 8(5)(a) expired before April 1, 2009. 

Article originally appeared on Branch MacMaster LLP: Barristers & Solicitors (http://www.branchmacmaster.com/).
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