Daniel J. Dochylo

The plaintiff was seriously injured in a motor vehicle accident in Ontario and later moved to Alberta, where she received further hospital care.

Alberta Health asserted a subrogated claim for the cost of her hospital expenses in Alberta.

The Court of Appeal held that while Alberta Health had a valid subrogated right under the Alberta Hospitals Act, the claim was barred by section 267(1)(b) of the Ontario Insurance Act, which prevents a plaintiff from recovering damages for payments received under a hospitalization plan.

Because the plaintiff's claim was barred, Alberta Health's derivative subrogated claim was also barred.

The appeal was dismissed.

The appellant solicitor appealed an order directing an assessment of his account for legal fees arising from a motor vehicle accident settlement obtained for an adult person under disability.

The court held that the settlement judgment, although inclusive of fees and disbursements and accompanied by a management plan referring to a specific fee amount, did not fix or approve the solicitor's account within the meaning of s. 4(1) of the Solicitors Act.

The court emphasized the usual practice on settlement approval under rule 7.08, including disclosure of intended legal fees, and the litigation guardian's duty to scrutinize the fairness and reasonableness of those fees.

Because the account had not been judicially fixed and the twelve-month bar had not arisen, the respondent was entitled to an assessment order.

The appeal was dismissed with costs.