Province pursues claim against landlord for health-care costs of man who fell off a balcony

Paid $322,000 for visitor’s injuries; now the province sues

The troubles of a landlord that started in 2007 with someone falling from a balcony on his building aren’t over.

After unsuccessfully appealing a $322,000 court judgment for injuries suffered by a man who fell from his apartment building, Louis Peter Tekavec now faces another claim.

This time, it’s the B.C. provincial government seeking to collect $68,000 in health-care costs incurred by Edward Alexander Jack under the Medical Services Plan.

In a decision dated December 16, 2013, a B.C. Supreme Court judge ruled that the province can pursue its claim against Tekavec under the Health Care Costs Recovery Act. The law, which came into force in 2009, covers all government-funded health-care services.

Tekavec is the owner of Goldcrest Apartments in Gold River, a village in the heart of Vancouver Island.

On June 2, 2007, Jack was visiting Julia Mark at her apartment on the third floor of Tekavec’s building. Jack leaned on the balcony railing. It gave way and Jack fell, suffering injuries that required hospitalization.

Jack sued Tekavec on July 19, 2007. A court issued a decision on December 10, 2010, finding the property owner liable under the Occupiers Liability Act for more than $322,000.

In the same case, Jack also put forward a claim under the Health Care Costs Recovery Act. This was rejected by the court because the accident occurred before April 1, 2009, the day the legislation took effect.

Meanwhile, the province watched from the sidelines. It was only on June 8, 2010 that the provincial government commenced legal action against Tekavec.

In his December 16, 2013, decision, Judge Keith Bracken dealt with the issue of whether or not the province can continue with its claim.

Bracken noted that in the original court action involving Jack and Tekavec, the judge in that case ruled that based on certain sections of the Health Care Costs Recovery Act, the law doesn’t apply to incidents that transpired before the legislation came into force.

Bracken speculated that the province was probably cognizant of this, and that’s why it did not participate in the case initiated by Jack.

But although Jack’s fall happened about two years before the law took effect, the province is not precluded from going after Tekavec. Bracken noted in his decision that the province relies on a provision of the law that allows it to make a claim that is not based on when the injury happened.

Under Section 8 of the legislation, the government can commence a legal proceeding no later than six months after it first received a notice of a health-services claim.

In this case, the judge noted that the province received notice of action from Jack’s counsel on December 9, 2009. The province initiated its own case against Tekavec on June 8, 2010.

“I am satisfied that the province has filed its action within the time limits provided by the Act as it filed its action within 6 months of receiving notice from Mr. Jack, in the original action,” Bracken wrote in his decision.

The judge didn’t accept Tekavec’s argument that the province is abusing the process of the court by attempting to “re-litigate issues that were finally determined in the original action and not appealed”.

Although Tekavec failed to convince the judge that the province cannot go after him, he succeeded in another aspect. Bracken allowed the landlord to proceed with his third-party action against Mark, the woman occupying the apartment that Jack visited, and Bruce Billy, who was alleged to have lived with Mark and, at some point, performed some repairs to the railing of the balcony before Jack’s fall on June 2, 2007.

Bracken noted in his decision that Tekavec has submitted that the issue of liability of Mark and Billy was “not fully canvassed or decided in the original action”.

Bracken wrote: “The third party claims were not finally decided in the original action and the third party claim may proceed between the defendant (Tekavec) and Ms. Mark and Mr. Billy.”

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