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Deductibility of Healthcare Benefits from Loss of Capacity Award

I will need to continue treating my crash injuries with physiotherapy and medication. As an Aboriginal person I am entitled to certain government benefits which may or may not fund this care. Will the courts expect me to rely on these programs for my future care instead of placing the burden of that cost solely on the defendant, the person legally responsible for my injuries?

In the recent case Watkins v Harder (2016 BCSC 2078), the plaintiff made a claim for medication as a cost of future care after being injured in a crash. While the defence was not challenging the amount, they argued that the  cost of the treatment was likely to be covered by the federal government as the plaintiff was an Aboriginal person with access to health benefits programs. They argued that the costs should be deducted from the award to avoid double recovery.

Mr. Justice Gaul concluded that he had insufficient evidence before him to reasonably conclude that the plaintiff possibly having access to benefits should reduce her award for cost of future care. He also found no evidence to lead him to presume the plaintiff would make a fraudulent claim for benefits.

[76]        Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035 (CanLII), which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77]        In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902 (CanLII), the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78]        Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990 (CanLII), Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79]        In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, 2003 CanLII 50091 (ON CA), [2003] O.J. No. 4194 (C.A.)).

[80]        In H.L. v. Canada (Attorney General), 2001 SKQB 233 (CanLII), at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 (CanLII) at paras. 259-63).

[81]        Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82]        In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.