New bill would limit government's legal liability for joining injury lawsuits

·5 min read
Health Minister Tyler Shandro says Bill 65, which would amend six laws, would make the province's health system more transparent and efficient. (CBC - image credit)
Health Minister Tyler Shandro says Bill 65, which would amend six laws, would make the province's health system more transparent and efficient. (CBC - image credit)

A new bill would limit the legal costs the provincial government could pay for joining injured claimant lawsuits that ultimately fail, and would make discretionary the penalties auto insurers face for not providing information about insurance premiums.

On Thursday, Health Minister Tyler Shandro introduced Bill 65, the Health Statutes Amendment Act (Spring 2021). If passed, the bill would amend six pieces of legislation in what the government says is an effort to modernize the laws and reduce inefficiencies.

"The proposed changes would help make Alberta's health system serve Albertans better by supporting more transparency and continuous improvement," Shandro said at a news conference.

The bill would amend the Crown's Right of Recovery Act, which allows the government to file lawsuits, or join existing ones, to try to recover health-care costs.

There is currently no limit in the law to the legal costs the government could be forced to pay as a co-plaintiff if it joined a lawsuit that was unsuccessful, meaning the province might have to shoulder the full cost.

Under Bill 65, the government would only have to pay "proper and reasonable" costs related to its attempt to recoup the claimant's health-care costs, a health ministry spokesperson said. Examples would be the costs for a court application or trial time related only to the government's claim.

"It is prudent for us to make sure that the risk of taxpayers is proportional to our involvement in these cases," Shandro said. "A lot of times, the involvement of the Crown in recovering costs is very limited."

The amendment would not affect the government's ongoing lawsuit against tobacco companies, a health spokesperson said, because it would not cover the part of the legislation that enabled the lawsuit.

The Crown's Right of Recovery Act also stipulates that every year the government establishes an amount that auto insurers must pay the province for health-care costs incurred due to motor vehicle accidents in which the person responsible was insured.

The amount each auto insurer must pay depends on the total premiums the insurer wrote that year for third-party liability insurance. Insurers must give that information in a report to the finance minister.

If an auto insurer fails to file that report, they must pay a penalty.

Under a proposed amendment, that penalty would become discretionary rather than mandatory, allowing the finance minister to waive penalties. Shandro said that would apply to auto insurers in "extraordinary" circumstances such as a natural disaster like a flood or a fire.

He did not directly respond to a question about how the legislation would ensure the penalty-waiving discretion is not applied more broadly. The bill itself does not limit the reasons for which the finance minister could waive the penalty.

"That is going to be up to Treasury Board and Finance to have those conversations and make the decisions based on policy that they will be able to set," Shandro said, adding the amendment would give that ministry the discretion "to make those judgment calls."

He said the amendment would bring Alberta's law in line with other jurisdictions.

In an interview, NDP health critic David Shepherd said he is still reviewing the bill but he is concerned the penalty-waiving power could be abused if there aren't clear restrictions set on the finance minister's discretion.

Of the proposed limits on the government's legal liability, Shepherd said "it does not seem to me that that is a priority for Albertans right now," as the province faces a third wave of COVID-19 infections and related challenges like unemployment.

More information to fatality inquiries

The bill would amend the Alberta Evidence Act to increase the amount of information available to fatality inquiries, the legal proceedings overseen by judges that examine preventable deaths or ones that require greater scrutiny or investigation.

Bill 65 would allow fatality inquiries to consider relevant facts and recommendations from "quality assurance committees" that conducted internal reviews into unexpected deaths within the health-care system.

Those committees exist at health authorities like Alberta Health Services, Covenant Health, and the College of Physicians and Surgeons of Alberta, and can also be convened at hospitals, nursing homes, and other health facilities.

A health spokesperson said the information provided to fatality inquiries would include facts disclosed to the patient's family and recommendations a facility operator says it will take to improve, but would protect the confidentiality of all individuals who are not the deceased.

"It is important for the Alberta government to move forward on critical recommendations that came directly from judges at fatality inquiries who have previously requested access to information from quality assurance reviews," Justice Minister Kaycee Madu said in the news release.

Pharmacy oversight

In a move welcomed by the Alberta College of Pharmacy (ACP), the bill would ensure that pharmacies run by associations, trusts, or other types of partnerships must comply with relevant legislation.

It would place operational requirements for pharmacies in the ACP's standards of practice rather than legal regulations. Those requirements include rules governing how drugs and supplies are stored, the information systems pharmacies use, and the size of dispensing areas.

Putting the rules into the standards of practice allows the college to change them more easily, though it must still seek feedback from the health minister beforehand.

In the news release, ACP president Dana Lyons said the amendments would better allow the college to oversee pharmacy operations and practices and regulate them "in a consistently changing environment."

Bill 65 would also add references to pharmacy technicians to law to ensure accountability from those professionals, and allow pharmacists and pharmacy technicians to provide services to pets and herd animals.