Canada Insurance Lawyer & Attorney : Michael Thomas of Harper Grey Law Firm : British Columbia, Vancouver

Can a person claim for expenses incurred under the medical services plan (MSP) or expenses paid by a hospital in a claim in British Columbia?  The short answer is probably not.  Section 88 of the Insurance (Vehicle) Act precludes recovery of these expenses in claims involving a motor vehicle accident.  There does not appear to be a statutory right to recovery MSP benefits or hospital expenses.  The jurisprudence in British Columbia indicates that the courts will be unlikely to characterize these expenses as being paid pursuant to private insurance.

February 17, 2008.

I have provide a more detailed explanation below.

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Generally a lawyer owes a client a duty of both confidentiality and loyalty.  However, a lawyer also has a right to transfer to another law firm, assuming that appropriate measures are taken to ensure that the lawyer's duties of confidentiality and loyalty are preserved.  A recent case that Terry Robertson, Q.C. and myself argued, Slater Vecchio v. Robertson et al., explored the ability of a lawyer to move from a firm that performed work for an insurer, to a personal injury firm, that commonly represented clients against that same insurer.  One fact that complicated the issue was that the lawyer that transferred to the new law firm was representing a client and his insurer, that were sued by a client represented by the law firm that he moved to.  The lawsuit was ongoing at the time of the transfer.  There was no consent from the former clients.   The law firms where small and the transfered lawyer was, likely, in daily contact, with the lawyer and staff who were prosecuting the action against the transfered lawyer's former clients.

The matter is currently under appeal to the British Columbia Court of Appeal.  Here is a link to the reasons granting leave to appeal, and here is a link to reasons from the British Columbia Court of Appeal  deciding that an appeal from a judge's decision to enjoin a law firm from acting on a file due to a conflict of interest is a matter of practice and requires leave.

Sarah Swan and Sandra Kovacs wrote an article on this issue.

Here is a copy of the article.

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Effective July 1, 2007.   British Columbia has amended the Rules of Court to require parties to disclose the existence and contents  of any insurance policy which provides indemnity for a judgement, or which provides direct payment of a judgement.  However, the existence of any insurance policy cannot be disclosed to the Court hearing the case.

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Limitation periods start when a Plaintiff has, or ought to have, discovered, a viable cause of action for any head of damage.  However, a Plaintiff can only commence one action for damages arising from the tortuous conduct.  This could result in no postponement of limitation periods for people involved in motor vehicle accidents in which vehiclar damage occurs.  In such an accident the limitation period for all potential heads of damage would commence as soon as he or she recognized that he or she suffered damage to their vehicle; despite the fact that other heads of damages may not be discovered until after the expiration of the limitation period.

Terry Robertson, Q.C. and I argued a case called Craig v. ICBC, upheld on appeal,  which appears to open the door to this argument.  Here is a link to an article that I wrote on this issue in 2005 and recently updated inJune 2007.

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A person injured in British Columbia and insured through an out of province automobile insurance policy may be entittled to British Columbia's statotory accident benefits.  The key issue in determining the extent of benefits available to an insured will be whether the insurance company is a signatory to the Power of Attorney Undertakings - often referred to as the PAUs.  The PAUs prohibit an insurance company from raising an exclusion that would not be available had the polic of insurance been issued in British Columbia.  Exclusion has been interpreted broadly and may have the effect of increasing policy limits and writing in coverage that is not contained in the out of province insurance policy.  Consideration should be given to the jurisdiction in which the action to determine the extent of the insured's entitlement to benefits is made.

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Causation in medical malpractice cases is rarely straightforward and typically requires specialist to comment on current medical issues and research.  This is a paper that summarizes the law on causation in British Columbia for medical malpractice issues.  It covers the following issues: an overview of general principcles, the "but for" test, the limitations of the "robust and pragmatic approach", the limitations on the loss of chance doctrine, and the limitations on the material contribution test.

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People injured in automobile accidents in British Columbia generally receive some type of insurance benefits.  In addition, they may sue and seek compensation from negligent parties.  Section 25 of the Insurance (Motor Vehicle) Act ensures that insurance benefits are deducted from damages recovered from negligent parties.  I recently spoke at a conference for the Trial Lawyers of British Columbia on this issue.  I have attached the  paper that was written by Sara Harbottle, an articled student at Harper Grey LLP, for my presentation to the extended entry section of this entry.

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