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Tuesday
Oct072008

Retroactivity and British Columbia's Health Care Costs Recovery Act

It is anticipated that British Columbia's recent Health Care Cost Recovery Act will be proclaimed in force within the next several months. The entire Act is available on the B.C. Government's website (as it stood following 3rd reading): https://www.leg.bc.ca/38th4th/3rd_read/gov22-3.htm

The Act will dramatically improve the Government's ability to recover the the costs of health care services incurred on behalf of an injured person. In this regard, the Act compels insurers and injured persons to report certain information to the Government (including Actions commenced, and claims reported to insurers).

The Act purports to be retroactive, applying to personal injuries pre-dating commencement of the Act.

Despite certain broad retroactive wording, on close scrutiny the Act includes important qualifiers. For insurers, the obligation to report claims to government does not apply to claims that the insurer learned about BEFORE the Act came into force. For injured parties, there is no obligation to report to Government if the Action is commenced before the Act comes into force. Following I provide more detail.

Section 24 provides that "this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force".

Section 10 of the Act requires Insurers to provide information to the Government within 60 days of learning about a claim. However, this obligation DOES NOT apply in respect of a matter that the insurer learns of BEFORE the section comes into force.

So, if a person is injured before the Act comes into force, and the insurer learns about this injury after the Act comes into force, the insurer must report it to the Government. In contrast, if a person is injured before the Act came into force and the insurer learn about the injury before the Act comes into force, the insurer need not report this to the Government. However, as explained below, if an Action is commenced after the Act comes into force, the Government will learn about the matter from the plaintiff. At that point, the Government may request information from the Insurer concerning the matter, and the Insurer must provide the information to Government (pursuant to s. 10(3) and (4)).

Section 24 includes qualifications concerning retroactivity of the injured person's obligations. In particular, the following sections of the Act do not apply if an Action is commenced before the Act comes into force:

(a) Obligation to Claim (s. 3). Section 3 requires that the injured plaintiff "include a health care services claim in that legal proceeding". Such pre-existing Actions will not need to be amended by the plaintiff to include the government's health care services claim.

(b) Requirement to Notify Government of the Claim (s. 4). Within 21 days after commencing a legal proceeding, the plaintiff must give written notice of the legal proceeding to the government. Again, this section does not apply to Actions commenced before the Act comes into Force.

(c) Final Disposition of Claim or Legal Proceeding (s. 5). Section 5 prohibits dismissal of a health care services claim unless the Court is satisfied that the government has been given a reasonable opportunity to appear and make representations. Again, this section does not apply to Actions commenced before the Act comes into Force.

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