Erickson & Partners v. Ontario (Minister of Health and Long-Term Care), 2015 ONCA 285

• Judge: Feldman, Benotto and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 01, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 285;(2015), 334 O.A.C. 74 (CA)

Erickson & Partners v. Ont. (2015), 334 O.A.C. 74 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.039

Erickson & Partners (applicant/appellant) v. Her Majesty the Queen in right of Ontario (Ministry of Health and Long-Term Care) (respondent/respondent)

(C59228; 2015 ONCA 285)

Indexed As: Erickson & Partners v. Ontario (Minister of Health and Long-Term Care)

Ontario Court of Appeal

Feldman, Benotto and Brown, JJ.A.

April 27, 2015.

Summary:

Under the Ontario Health Insurance Act, any person who commenced an action to recover damages arising out of the negligence or other wrongful act of a third party had to include a claim on behalf of the Ontario Health Insurance Plan for the cost of any insured medical services provided to the insured person in respect of the injury or disability suffered. Section 39(6) of the General Regulation made under the Act prescribed the portion of the costs of the insured person's action which the Plan had to bear. A dispute arose between a law firm and the Plan about the validity of certain clauses in the firm's contingency fee agreements with clients and about how to calculate the Plan's share of costs payable by the insured person under s. 39(6) of the Regulation. The law firm commenced two applications, one seeking approval of its contingency fee agreements, and the other seeking a declaration regarding how the Plan's share of costs should be calculated, specifically the meaning of the phrase "the total recovery of the insured person" found in s. 39(6) of the Regulation.

The Ontario Superior Court, in a decision reported at [2014] O.T.C. Uned. 4339, declared that the law firm's contingency fee agreements did not comply with the Solicitors Act and he interpreted s. 39(6) of the Regulation in a manner which accepted only part of the law firm's submissions. The law firm appealed from the judgment only in respect of the interpretation of s. 39(6) of the Regulation.

The Ontario Court of Appeal dismissed the appeal. The application judge correctly interpreted s. 39(6) of the Regulation to include the "recovery made on behalf of the Plan" in "the total recovery of the insured person in the action." However, the court agreed with the Plan that the application judge unduly complicated the treatment of costs recovered by an insured person through a judgment or settlement. The court clarified that any such costs were first deducted from the total costs payable to the lawyer for the insured person. The court awarded the respondent, Her Majesty the Queen in Right of Ontario, costs of the appeal in the amount of $7,500.

Government Programs - Topic 1962.1

Medicare - Administration - Subrogation actions - Costs - Under the Ontario Health Insurance Act, any person who commenced an action to recover damages arising out of the negligence or other wrongful act of a third party had to include a claim on behalf of the Ontario Health Insurance Plan for the cost of any insured medical services provided to the insured person in respect of the injury or disability suffered - Section 39(6) of the General Regulation made under the Act prescribed the portion of the costs of the insured person's action which the Plan had to bear - A dispute arose between a law firm and the Plan about how to calculate the Plan's share of costs payable by the insured person under s. 39(6) of the Regulation - The law firm applied for a declaration regarding how the Plan's share of costs should be calculated, specifically the meaning of the phrase "the total recovery of the insured person" found in s. 39(6) of the Regulation - The application judge interpreted s. 39(6) of the Regulation in a manner which accepted only part of the law firm's submissions - The law firm appealed - The Ontario Court of Appeal dismissed the appeal - The application judge correctly interpreted s. 39(6) of the Regulation to include the "recovery made on behalf of the Plan" in "the total recovery of the insured person in the action" - However, the court agreed with the Plan that the application judge unduly complicated the treatment of costs recovered by an insured person through a judgment or settlement - The court clarified that any such costs were first deducted from the total costs payable to the lawyer for the insured person - See paragraphs 19 to 33.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Public interest or test case - A dispute arose between a law firm and the Ontario Health Insurance Plan about how to calculate the Plan's share of costs payable by the insured person under s. 39(6) of the General Regulation made under the Ontario Health Insurance Act - The law firm applied for a declaration regarding how the Plan's share of costs should be calculated - The application judge interpreted s. 39(6) of the Regulation in a manner which accepted only part of the law firm's submissions - The law firm appealed - The Ontario Court of Appeal dismissed the appeal - The respondent, Her Majesty the Queen in Right of Ontario, sought costs of the appeal in the amount of $20,580.85 - The law firm submitted that there should be no costs because it was bringing the appeal in the public interest - Alternatively, the law firm submitted that any award of costs to the respondent should be in the range of $4,000 to $5,000 - The court held that this was not public interest litigation - The court awarded the respondent costs of the appeal in the amount of $7,500, inclusive of all disbursements and taxes - See paragraphs 34 to 35.

Words and Phrases

The total recovery of the insured person in the action - The Ontario Court of Appeal considered the meaning of the phrase "the total recovery of the insured person in the action" found in s. 39(6) of the General Regulation made under the Ontario Health Insurance Act, R.S.O 1990, c. H-6 - See paragraphs 19 to 27.

Cases Noticed:

Marchand v. Public General Hospital of Chatham (1997), 49 O.T.C. 152; 33 O.R.(3d) 570 (Gen. Div.), refd to. [para. 19, footnote 7].

Walford (Litigation Guardian) v. Jacuzzi Canada Ltd., [2005] O.J. No. 5676 (Sup. Ct.), refd to. [para. 19, footnote 7].

Holder v. Greater Niagara General Hospital et al. (1998), 66 O.T.C. 157 (Gen. Div.), refd to. [para. 19, footnote 7].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 20, footnote 8].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 20, footnote 8].

Amaratunga v. Northwest Atlantic Fisheries Organization, [2013] 3 S.C.R. 866; 451 N.R. 1; 338 N.S.R.(2d) 360; 1071 A.P.R. 360; 2013 SCC 66, refd to. [para. 20, footnote 9].

Mason et al. v. Ontario (Minister of Community and Social Services) et al. (1998), 110 O.A.C. 44; 39 O.R.(3d) 225 (C.A.), refd to. [para. 24, footnote 12].

Statutes Noticed:

Ontario Health Insurance Act, R.S.O. 1990, c. H-6, sect. 30(1) [para. 9]; sect. 31(1), sect. 31(2) [para. 10]; sect. 33 [para. 26].

Ontario Health Insurance Act Regulations (Ont.), General Regulation, R.R.O. 1990, Reg. 552, sect. 39(6), sect. 39(7) [para. 12].

Counsel:

Brian A. Babcock, for the appellant;

Rita V. Bambers and Sonal Gandhi, for the respondent.

This appeal was heard on April 1, 2015, before Feldman, Benotto and Brown, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Brown, J.A., and was released on April 27, 2015.