A plaintiff who is injured in a motor vehicle accident involving a vehicle registered in New Brunswick and a vehicle registered in another province is exempted from advancing a subrogated claim pursurant to s. 10 of the Hospital Services Act, R.S.N.B. 1973, c.H-9, for the cost of health care services received, regardless of whether the vehicle that is registered in New Brunswick is at fault for the accident

Insurance law – Government health insurance plans – Subrogation – Automobile insurance – No-fault coverage – Statutory provisions – Ownership use or operation of motor vehicle – Jurisdiction – Location of contract

Hamilton v. Conrad Estate, [2015] N.B.J. No. 315, 2015 NBQB 232, New Brunswick Court of Queen’s Bench – Trial Division , November 30, 2015, E.T. Christie J.

The plaintiff was injured in a motor vehicle accident in Nova Scotia while he was a passenger in a vehicle that was registered in New Brunswick, which was hit by a vehicle that was registered in Nova Scotia. The plaintiff received medical services in the province of New Brunswick and brought a motion seeking direction as to whether he was required to advance a subrogated claim for the cost of those services. The third party and respondent on the motion, the Province of New Brunswick, sought to recover those costs pursuant to s. 10 of the Hospital Services Act, R.S.N.B. 1973, c.H-9, which provides as follows:

10(1)  Where, as a result of the negligence or wrongful act of another, a person suffers personal injuries for which he received entitled services under this Act or the regulations, he

(a)  …

(b)  if he makes any claim for the personal injuries suffered against the person who was negligent or who did the wrongful act, shall claim and seek to recover the cost of entitled services.

…

10(14) This section applies except where the personal injuries occurred as a result of the use or operation of a motor vehicle registered in the Province.

The Province’s position was that the exemption provided by s. 10(14) applied only if the vehicle at fault for the accident was registered in New Brunswick, and therefore did not apply in this case as the at fault vehicle was registered in Nova Scotia. It argued that s. 10(14) must be read within the context of the levy program established by s. 242.1(2) of the Insurance Act, R.S.N.B. 1973, c. I-12. The levy program required insurers that provided coverage for vehicles registered in New Brunswick to pay into a fund for the purpose of recovering the cost of entitled services provided under the Hospital Services Act to persons injured in accidents involving vehicles registered in New Brunswick. Insurers paid into the fund rather than being subject to subrogated claims for the cost of those services. The Province argued that because the at-fault vehicle was registered in Nova Scotia and was insured by an insurer who was not required to pay the levy, it should be able to collect the amount of the subrogated claim from the defendant’s estate.

The motion judge held that given the clear drafting of s. 10(14), it was not necessary to look to s. 242.1(2) of the Insurance Act to assist in its interpretation. The wording of s. 10(14) said nothing about the “fault” of the accident. It spoke only of the “use” or “operation” of the motor vehicle. The vehicle in which the plaintiff was a passenger when he was injured was being “operated” and/or being “used” and was registered in New Brunswick. The exemption therefore applied and the plaintiff was not obliged to make a subrogated claim for the cost of the medical services provided by the Province.

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