The Nova Scotia Court of Appeal upheld a decision finding that the provisions of the Nova Scotia Health Services and Insurance Act permit the government to pursue nursing home care costs from injuries arising from a motor vehicle action by way of subrogated action.
Slauenwhite v. Keizer,  N.S.J. No. 89, February 23, 2012, Nova Scotia Court of Appeal, J.W.S. Saunders, L.L. Oland and M.J. Hamilton JJ.A.
This was an appeal from a trial decision interpreting the provisions of the Nova Scotia Health Services and Insurance Act, 1989, R.S.N.S. c. 197 (the “Act”) as to whether the province had a right of subrogation to claim against a person insured by a third party liability insurance policy for the costs of nursing home care that arose from injuries resulting from a motor vehicle accident. Pursuant to the provisions of the Act, the province recovered its costs for health care services for injuries arising from a motor vehicle accident by way of an annual levy on motor vehicle insurers. The cost of nursing home care was not included in the definition of health care services that were recoverable under the levy and the issue was whether the province retained a subrogated right to collect those costs. At issue were ss. 18(3) and (10) of the Act which provided as follows:
(3) Her Majesty in right of the Province shall be subrogated to the rights of a person under this Section to recover any sum paid by the Minister for insured hospital services, benefits under the Insured Prescription Drug Plan, ambulance services to which the Province has made payment or insured professional services provided to that person, and an action may be maintained by Her Majesty, either in Her own name or in the name of that person, for the recovery of such sum.
(10) This Section applies except where personal injury has occurred as the result of a motor vehicle accident in which the person whose act or omission resulted in the personal injury is insured by a policy of third-party liability insurance on or after the date this subsection comes into force.
The majority of the Nova Scotia Court of Appeal upheld the trial judgment that the province did retain its subrogated right to collect the cost of nursing home care in cases where the injury was caused by a motor vehicle accident in spite of the apparent contradiction between ss. 18(3) and (10). The Court noted that it was reasonable to infer that the exception provided for in s. 18(10) was limited to the health services covered by the levy, which did not include nursing home care costs.
In dissent it was held that the province did not have a subrogated right under the Act to collect the cost of nursing home care costs from injuries sustained in motor vehicle accidents. The dissenting judge held that the legislative history indicated that the Legislature had not intended the province to be able to recover nursing home care costs in these circumstances, and if they had so intended, this could have been achieved by amendments at the same time as the Act was changed to allow for nursing home care costs under s. 18(3) but was not done.
In the result, the appeal was denied and it was confirmed by the majority for the Court of Appeal that the province has a subrogated right to collect nursing home care costs for injuries sustained in motor vehicle accidents.