IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Rorison v. Insurance Corporation of British Columbia,
	2025 BCSC 1597

Date: 20250820

Docket: S202406

Registry: Vancouver

Between:

Robert Rorison and Brayden Methot

Plaintiffs

And

Insurance Corporation of British Columbia and His Majesty the King in Right of the Province of British Columbia

Defendants

Before: The Honourable Mr. Justice Branch

Reasons for Judgment

Counsel for the Plaintiffs:	G. van Ert M. Sobkin J.S. Stanley
Counsel for the Defendant, Insurance Corporation of British Columbia:	J.A. Morris J. Yonge
Counsel for the Defendant, His Majesty the King in Right of the Province of British Columbia:	L.B. Herbst, K.C. C. Rajotte S. Ortega S. Davis
Place and Date of Hearing:	June 13, 2025
Place and Date of Judgment:	Vancouver, B.C. August 20, 2025

I. INTRODUCTION

[1] I am the appointed case management judge for this certified class proceeding. On June 13, 2025, I issued a series of case management orders (the “Orders”). These are my reasons in support of those Orders.

[2] Following certification, when the parties began discussing the language for the notice of certification, they realized there was a difference of opinion between them regarding the claims certified. The plaintiffs applied to approve the notice program proposed by them, or to grant them leave to file an amended claim to clarify the claims being advanced through the class proceeding.

[3] The defendants argued that the plaintiffs’ proposal effectively broadened the scope of the certified claim, necessitating, at a minimum, an additional certification hearing to verify that the proposed amendments met the requirements of the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA].

[4] Specifically, the disagreement relates to the question whether the legality of all health care payments has been certified, or only those made on behalf of physician expenses.

[5] I agreed with the defendants’ submissions and directed that a further four-day period be reserved to hear arguments on a potential expansion of the scope of certification. I advised that my reasons would follow. These are those reasons.

II. LITIGATION HISTORY

[6] This class action is advanced on behalf of persons who purchased compulsory vehicle insurance from the defendant Insurance Corporation of British Columbia (“ICBC”) (the “Ratepayer Class”). Through their original March 3, 2020 claim, the plaintiffs challenged the legality of a long-standing arrangement under which ICBC pays the defendant provincial government (the “Province”) for basic medical care provided to individuals injured in motor vehicle accidents, notwithstanding that those expenses are already covered by the Province’s publicly funded Medical Services Plan (“MSP”). The plaintiffs argue that this unnecessary reimbursement to the Province (the “MSP Payments”) wrongfully increased insurance costs for all purchasers of compulsory vehicle insurance from ICBC and is, in fact, an unconstitutional tax.

[7] The case is also advanced on behalf of a second smaller class consisting of people who have suffered catastrophic injuries in motor vehicle accidents (the “Accident Victim Class”). This second claim alleges that the MSP Payments wrongfully reduced the amount of other medical and rehabilitation benefits available from ICBC.

[8] The confusion that has developed about the scope of the certified claims stems from the following language in the Notice of Civil Claim as amended on February 11, 2022 (the “Claim”):

16. The Medicare Protection Act, RSBC 1996 c 286 establishes the Medical Services Commission. The Commission’s function is to facilitate reasonable access, throughout British Columbia, to quality medical care, health care and prescribed diagnostic services for residents of British Columbia under the Medical Services Plan (“MSP”).

…

20. At all material times, ICBC has not been liable for any expenses paid or payable to or recoverable by an insured person under a medical, surgical, dental or hospital plan or law, or paid or payable by another insurer. This is as provided for by s. 88(6) of the Regulation and its predecessor provisions. These provisions limit the expenses ICBC must pay out to accident victims as Accident Benefits.

21. MSP is a medical plan or law, and/or another insurer, within the meaning of s. 88(6) of the Regulation and its predecessor provisions. ICBC is therefore not liable for payments made to physicians under MSP for benefits to which accident victims are entitled pursuant to the Medicare Protection Act.

…

24. At all material times, British Columbia’s legislative scheme made the Province, through MSP—and not ICBC—responsible for paying the costs of visits to physicians by victims of motor vehicle accidents.

25. Despite this, ICBC has reimbursed the Province, through MSP, for the services of medical practitioners payable as a result of ICBC claims.

26. The payments ICBC has made to the Province as MSP reimbursements (the “Remittances”) since 1988 are, to the best of the plaintiffs’ knowledge, as follows:

$16,533,334 from January 1, 1988 to Dec 31, 1988.

…

[other years follow]

[Emphasis added.]

[9] On July 3, 2020, the Province filed its Response to Civil Claim (the “Response”) in which it noted that ICBC “reimburses the Province for certain healthcare expenses arising out of motor vehicle accidents in relation to its insureds – including payments for services by medical practitioners – under an agreement between ICBC and the Province”: paragraph 4(a) (emphasis added). The Response took issue with the plaintiffs' description of the Remittances, insofar as it suggested only medical practitioner services were reimbursed when, in fact, the agreement required ICBC to reimburse for other kinds of healthcare expenditures as well, including inpatient and outpatient hospital services, ambulance services, and chiropractic, massage and physiotherapy services: paragraph 5(a). The Province pleaded that the Remittances, as defined by the plaintiffs, encompass “all payments under the Agreement and therefore include, in addition to medical practitioner services, inpatient hospital services, outpatient hospital services, medical practitioner services, ambulance services, and chiropractic, massage and physiotherapy services”: paragraph 9.

[10] On October 1, 2020, the plaintiffs filed their application for certification. The application proposed three sets of common issues: one set in respect of the Accident Victim Class, one in respect of the Ratepayer Class, and a third in respect of both.

[11] The judicial decisions on this case’s long path to certification are as follows: Rorison v. Insurance Corporation of British Columbia, 2020 BCSC 1965 (the “Sequencing Decision”), 2022 BCSC 624 (the “First Certification Decision”), appeal granted 2023 BCCA 474 (the “Certification Appeal Decision”), further proceedings 2024 BCSC 834 (the “Second Certification Decision”).

[12] In October 2021, just prior to the First Certification Decision, the Province sought to legislate away the Ratepayer Class claims: Insurance (Vehicle) Amendment Act, 2021, S.B.C. 2021 c. 23. The Province was partially successful in this effort. Following passage of the legislation, the plaintiffs conceded that their private law causes of action for the Ratepayer Class had been retroactively abolished, and they amended their claim accordingly on February 11, 2022. However, the plaintiffs contended that their unconstitutional tax claim could not be legislated away.

[13] In support of certification, the plaintiff Mr. Methot provided the following evidence: “In May 2019, I asked ICBC, through my counsel, to provide me with a copy of a summary of the payments made to me…Upon reviewing this statement, I learned that ICBC had paid the sum of $3709.43 to the Medical Services Plan (“MSP”) for physician visits.” [emphasis added].

[14] In the plaintiffs’ original certification submissions dated April 22, 2021, they stated as follows:

2. The plaintiffs allege that since its inception in 1973, the Insurance Corporation of British Columbia (“ICBC”) has participated in an illegal scheme with the Province of British Columbia (the “Province”), pursuant to which it has made payments to the provincial Medical Services Plan (“MSP”), contrary to law…

6. To avoid, it seems, the politically unpopular acts of increasing taxes or raising MSP premiums, the Province and ICBC entered into an unlawful scheme to absorb the cost of physician visits arising from motor vehicle accidents. Over time, the defendants evolved and expanded this scheme. To the best of the plaintiffs’ knowledge, the scheme was first committed to writing in 1988. By 1994, the scheme was skimming the costs of physician visits from nearly every person injured in a motor vehicle accident in BC and had ICBC routinely contravening the regulations enacted to govern it.

…

17. The defendant, the Province, is the recipient of payments made by ICBC to MSP for serviced rendered by medical practitioners on people injured in car accidents in British Columbia (the “Remittances”).

…

87. The legislature has, therefore, expressly taken steps to exclude certain health services from MSP coverage, including services provided by “health care practitioners” that are payable pursuant to the Insurance (Vehicle) Act, RSBC 1996, c 231 (“IVA”). The legislature did not, however, take steps to exclude health services provided by “medical practitioners” that are payable pursuant to the IVA, meaning that MSP is required to pay for physician visits arising from car accidents.

…

96. The scheme entered into by the Province and ICBC has caused ICBC to do what section 88(6) of the Regulation expressly states that ICBC is not required to do: pay for the cost of medical expenses paid or payable by another insurer. ICBC should not be paying to MSP the cost of physician visits arising from car accidents since those medical expenses were paid or payable by MSP. ICBC has admitted its wrongdoing- in respect of the Accident Victim Class - in making these payments to MSP and then charging these costs to the Accident Benefit accounts of members of the Accident Victim Class.

[Emphasis added.]

[15] On April 22, 2022, in the First Certification Decision, Justice N. Smith granted certification in respect of the Accident Victim Class, but not in respect of the Ratepayer Class. Smith J. summarized the claim being advanced as follows:

[1] The plaintiffs, Robert Rorison and Brayden Methot, applied for certification of a class proceeding alleging that the defendant, Insurance Corporation of British Columbia (“ICBC”), wrongfully assumed certain costs properly borne by the defendant, Her Majesty the Queen in Right of the Province of British Columbia (the “Province” or the “Government”), through the Medical Services Plan (“MSP”).

[2] At issue is the cost of basic medical care for people injured in motor vehicle accidents. ICBC is a provincial Crown corporation that has a monopoly on basic auto insurance. The Province provides publicly funded universal health care through MSP. Where medical practitioners provide care that was made necessary by a motor vehicle accident, MSP pays for it as it would any other medical care, but then receives reimbursement from ICBC (the “MSP Payments”).

[Emphasis added.]

[16] Smith J. found settled the common issues as follows, in material part:

[60] The plaintiffs now propose the following common issues, which I have modified to reflect my finding that there is no cause of action for the Ratepayer Class or against the Province:

1. What are the terms of all agreements between ICBC and the Province whereby ICBC agreed to reimburse the Province (including MSP) for health care expenses arising out of motor vehicle accidents (“the Payments Agreement”)?

2. What amounts were paid by ICBC to the Province (including MSP) under the Payments Agreement (the “Payments”)?

3. Did ICBC wilfully conceal the existence and circumstances of the Payments Agreement and/or the Payments?

4. Should the Court make an aggregate damages award in favour of the Accident Victim Class members and, if so, in what amount?

5. Did ICBC charge to the Accident Benefits accounts of members of the Accident Victim Class amounts it paid to the Province (including MSP) under the Payments Agreement?

6. If so, is ICBC liable to the Accident Victim Class in (a) negligence; (b) breach of contract and/or breach of its duty of good faith; and/or (c) unjust enrichment?

7. Should the Court award punitive damages against ICBC to the Accident Victim Class and, if so, in what amounts?

…

[74] I therefore find that there is a basis in fact for the following common issues:

1. Did ICBC charge to the Accident Benefits accounts of members of the Accident Victim Class, and pay the Province (including MSP) amounts in respect of services for which ICBC was not liable under statute or regulation?

2. If so, is ICBC liable to the Accident Victim Class in (a) negligence; (b) breach of contract and/or breach of its duty of good faith; and/or (c) unjust enrichment?

3. Should the Court award punitive damages against ICBC to the Accident Victim Class and, if so, in what amounts?

4. Should any award for punitive damages be made as an aggregate award, and if so, in what amount?

[Emphasis added.]

[17] The plaintiffs appealed the First Certification Decision. Their factum dated December 23, 2022, included the following language:

In March 2020, the plaintiffs commenced an action against the Province and ICBC alleging that the two had, for decades, engaged in a secret scheme to pay millions of dollars per year out of ICBC and into the Medical Services Plan. The action alleged that the cost of these payments was passed on to BC drivers through insurance premiums, causing them loss. The scheme was also alleged to have deprived catastrophically injured motorists of their full Part 7 accident benefits. The plaintiffs impugned the scheme as an unconstitutional tax as well as being wrongful in contract, tort and equity. The plaintiffs applied to certify the action as a class proceeding in favour of BC drivers (the Ratepayer Class) and catastrophically injured persons (the Accident Victim Class).

…

3. For decades, ICBC has been making payments to the provincial Medical Services Plan (MSP) contrary to law. Those payments have cost ratepayers hundreds of millions of dollars and driven up insurance costs unnecessarily and unlawfully. Those payments have also caused accident victims to receive fewer benefits than they would have received had ICBC acted lawfully.

…

5. The impugned payments are characterized by the defendants as reimbursements by ICBC to the Province, through MSP, for the services of medical practitioners payable as result of ICBC claims. Yet at all material times ICBC was not liable to reimburse the Province or MSP for expenses paid or payable to or recoverable by an insured person under MSP. This is the effect of s. 88(6) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 (the Regulation).

6. Furthermore, the costs of doctors' visits resulting from motor vehicle accidents need not be "reimbursed" by ICBC because they are already paid for from federal funding under the Canada Health Act, R.S.C. 1985, c. C-6 (CHA). Provinces receive federal funding for "insured health services", which include physician services. For BC to receive its full cash contribution, it must meet the "five pillar" requirements of CHA s. 7. Those requirements are enacted in BC law by ss. 5(2) and 5.1 of the Medicare Protection Act, R.S.B.C. 1996, c. 286. They include comprehensiveness (which requires a province's health care insurance plan to include physician services) and universality (which requires a province's plan to cover 100% of insured persons).

…

51. Similarly in this case, the plaintiffs allege that the rate increases ICBC has adopted to recoup the Remittances are unrelated to ICBC's actual cost of delivering basic insurance to British Columbians. The plaintiffs plead (and the Province admits) that the Province uses the Remittances to pay for doctors' visits arising from motor vehicle accidents. Just as defraying the costs of court administration was not a "good" or "service" for constitutional purposes in Eurig, the "reimbursement" of healthcare costs already covered by MSP is arguably not a "good" or "service" for constitutional purposes in this case. In finding otherwise, the chambers judge misapplied Eurig and ignored the "plain and obvious" standard applicable at the s. 4(1)(a) stage of the certification test.

[Emphasis added.]

[18] On December 19, 2023, the Court of Appeal allowed the plaintiffs’ appeal from the order dismissing the application for certification in respect of the Ratepayer Class. The Court dismissed ICBC’s cross-appeal challenging certification of the Accident Victim Class. In summarizing the claim, the Court of Appeal stated as follows:

[124] The Accident Victim Class alleges that ICBC unlawfully deducted medical practitioner costs from class members’ Part 7 benefits. ICBC’s deductions, in turn, had the effect of shrinking the pool of benefits available to these catastrophically injured persons.

[Emphasis added.]

[19] The Court of Appeal also found that the constitutional cause of action was not bound to fail. It referred the certification issue back to Smith J.

[20] In his Second Certification Decision, Smith J. certified the claim in respect of the Ratepayer Class (having previously certified the claim in respect of the Accident Victim Class) (the “Second Certification Order”). The common issues certified in the Second Certification Order included the following:

1. What are the terms of all agreements between ICBC and the Province whereby ICBC agreed to reimburse the Province (including MSP) for healthcare expenses arising out of motor vehicle accidents ("the Payments Agreement")?

2. What amounts were paid by ICBC to the Province (including MSP) under the Payments Agreement (the "Payments")?

3. Does the Payments Agreement, or the Payments made under it, constitute an unconstitutional tax on the Ratepayer Class?

[the “Additional Common Issues”]

[Emphasis added.]

[21] I was appointed to case manage this proceeding following the issuance of the Second Certification Decision. Prior to a short hearing on September 18, 2024, the plaintiffs provided an initial draft certification notice that described the claim as being about the Province “wrongfully requiring ICBC to reimburse the Government for the cost of Medical Services Plan (‘MSP’) physician visits for persons injured in car accidents” [emphasis added].

[22] The parties appeared before me on November 20, 2024, to discuss the notice. The primary subject discussed that day was the method of providing notice rather than its content. Any limited discussion of the content did not address the scope of the claim. I provided specific directions on the appropriate method, and the parties were left to work on an agreement regarding the wording of the notice.

[23] The parties encountered difficulties in reaching agreement. The difficulty was driven by an evident misunderstanding between the parties regarding the scope of the claims certified. Specifically, the plaintiffs contended that the claim, as pleaded and certified, covered all healthcare expenses that ICBC purported to reimburse, not just those payments made to physicians. In contrast, the defendants contended that the claim was limited to the reimbursement of expenses related to physician visits under MSP.

[24] In November 2024, the Province served a demand for particulars. In its cover letter, the Province said it sought “confirmation from the plaintiffs on the payments alleged to constitute an unconstitutional tax.” In particular, the Province sought confirmation of whether the plaintiffs’ unconstitutional tax claim “is limited to the costs of ICBC reimbursing the Province for services rendered by medical practitioners under the Medical Services Plan” or extended “to all payments made under the agreements between the Province and ICBC, which as you know also included payments for hospital services (inpatient and outpatient), ambulance services, and supplementary benefits (chiropractic, massage, and physiotherapy services).” The Province stated that it “requires clarity on the scope of the claim.” The plaintiffs responded that the unconstitutional tax claim was not limited to the costs of ICBC reimbursing the Province for services rendered by medical practitioners, but also extended to any payment from ICBC to the Province under the agreements.

[25] This disagreement over the scope of the Claim created a logjam in settling the wording of the notice of certification. On December 3, 2024, the plaintiffs sent the Province their proposed Notice Program. It incorporated directions on the method of notice I had directed on September 18, 2024, along with revisions to the summary of the claim. These described the claim as concerning the costs of “physician visits and other healthcare expenses” for persons injured in car accidents. The plaintiffs say that they proposed this language to reflect the clarified scope of claim they had provided to the Province in response to its demand for particulars. The Province refused to approve this revision due to its position that “payments made by ICBC to the Province for healthcare related services that are not medical practitioner services under MSP fall outside the scope of the unconstitutional tax claim as pleaded”.

[26] Later, the Province advised that its document production would be proceeding on the basis that the scope of the claim is limited to the costs of physician visits. The plaintiffs note, however, that some of the documents produced to date contain information that exceeds this stated limitation.

[27] On June 13, 2025, I heard the plaintiffs’ application to either approve the notice program they proposed or, alternatively, to allow them to amend the claim without any additional assessment of the certification requirements. The alternative proposed amendments would expand the definition of “Remittances” to include: “healthcare costs, including inpatient hospital services, outpatient hospital services, medical practitioner services, ambulance services, and chiropractic, massage and physiotherapy services”.

[28] As noted, at the close of the hearing, I made certain orders. These were as follows:

1. An application to amend the Amended Notice of Civil Claim is required to support the plaintiffs’ draft form of notice.

2. An application to amend the Amended Notice of Civil Claim may be brought by the plaintiffs.

3. If an application to amend the Amended Notice of Civil Claim is advanced, it must be coupled with a hearing to either amend the certification order or seek an order that the current form of certification order may remain in effect notwithstanding any amendment.

4. Any amendment application shall be adjourned to a 4-day hearing at which the Court will consider both the pleading amendment application and the certification related application.

5. The plaintiffs shall file additional application materials within 4 weeks of today.

6. The defendants may respond with any additional material within 4 weeks of receipt of the plaintiffs’ materials.

7. The plaintiffs shall file any reply materials and their legal argument within 4 weeks of receipt of the defendants’ materials.

8. The defendants shall file their legal argument within 4 weeks of receipt of the plaintiffs’ reply materials.

9. The plaintiffs shall file any reply argument within 2 weeks of receipt of the defendants’ arguments.

10. The parties shall immediately take steps with scheduling to determine a mutually agreeable hearing window at least 18 weeks from today.

(the “Orders”)

III. ANALYSIS

[29] As noted above, in my view, the confusion that has developed largely flows from the language used by the plaintiffs in paragraphs 16 and 20-26 of the Claim:

…

23. Section 88(6) of the Regulation, and its predecessor provisions, mean that ICBC is not liable for expenses paid or payable to, or recoverable by, insured persons under MSP.

25. Despite this, ICBC has reimbursed the Province, through MSP, for the services of medical practitioners payable as a result of ICBC claims.

26. The payments ICBC has made to the Province as MSP reimbursements (the “Remittances”) since 1988 are, to the best of the plaintiffs’ knowledge, as follows:

$16,533,334 from January 1, 1988 to Dec 31, 1988.

…

[other years follow]

[Emphasis added.]

[30] The reference to “physicians”, “medical practitioners” and “MSP” all suggest that the Claim was directed at the payments for doctor’s services.[1]

[31] The plaintiffs say that at some point, they determined that the annual financial data listed in paragraph 26 included payments for medical services beyond those rendered by physicians.

[32] The difficulty facing the plaintiffs, though, is that the core defined term “Remittances” in paragraph 26 of the Claim flows logically and naturally from the language in the preceding paragraphs 24 and 25, which refers specifically (and only) to reimbursements for “visits to physicians” and “the services of medical practitioners”.

[33] Furthermore, the Province notes that the amounts particularized are still not a comprehensive total of all of the amounts the plaintiffs now say they intend to challenge.

[34] So the language of the Claim itself does not assist the plaintiffs.

[35] The plaintiffs also rely on the fact that the common issues refer to payments “including MSP” (emphasis added), which they say suggests an awareness and appreciation that the claim was intended to cover payments made beyond MSP. However, as stated in Yu v. Jordan, 2012 BCCA 367 at para. 53, “the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted” (emphasis added).

[36] Applying that approach in the present case:

a) The proper interpretation of the pleadings is discussed above. In examining the pleadings, it is important to acknowledge that courts managing the certification process do not have the power to expand the claim beyond the four corners of the pleading; rather, any common issues certified must be grounded in the pleadings: Class Actions in Canada, 2nd Edition (Toronto: Thomson Reuters) (loose-leaf updated 2025) at §16:2. The focus in the Claim on “payments made to physicians under MSP” clarifies the potential scope of the common issues.

b) The Province notes that the sums totalled in paragraph 26 of the Claim included amounts paid through the Medical Associate Clinic, Medical Services Association and Medical Services Commission, and not only those paid to the Medical Services Plan per se. The Province suggests that this could reasonably explain the use of the “including MSP” language in the Second Certification Order.

c) The plaintiffs argue that, as it turned out, the dollar figures they outlined in paragraph 26 of the Claim did include payments to others. However, the provision and effect of these figures was expressly qualified in the Claim: (“to the best of the plaintiffs’ knowledge”). As such, I do not treat the figures themselves as the operative material fact governing the scope of the claim, particularly given the less unambiguous language used in paragraphs 24 and 25.

d) Considering the circumstances surrounding the Second Certification Order, the plaintiffs themselves suggested that the Claim was limited to physician payments in their original certification argument. Furthermore, the arguments made today were not made before the courts at any earlier hearing.

e) Hence, I find that the certification of the Additional Common Issues is not inconsistent with the findings I have made. If these issues require some limited adjustment to reflect these reasons, that can be done. Common issues can be amended post-certification: CPA, s. 8(3).

[37] It is fair for the plaintiffs to note that certain other documents, arguments, and commentary produced over the lengthy certification process in this case suggest that the parties (and the Courts) may have assumed that the claim sought to attack reimbursements beyond those to medical practitioners. For example, the original Ratepayer Class issues could be read as making such an assumption when it refers to “healthcare expenses” rather than simply physician expenses. The plaintiffs also rely on the language in the Province’s response in support of the view that the broader claims were already included in the action. However, a defendant cannot expand on what a plaintiff is claiming through the language of their response. I find that the response simply put the plaintiffs on notice that there was potential ambiguity in the Claim – that it could arguably be read more broadly than intended. The logical response to this suggestion by the plaintiffs would have been to amend the Claim to clarify that the broader claims were (or were not) meant to be included. However, the plaintiffs did not do so.

[38] The plaintiffs also allege that their response to the Province’s request for particulars confirmed the broader scope of the Claim. However, a response to a demand for particulars cannot expand the claim.

[39] Although language may have been used over the course of this matter that creates some ambiguity, no court has expressly addressed this issue before me in terms of properly interpreting the language in the Claim. I see no restriction on my ability to determine the matter as I have done. The reality is that the Claim itself (properly interpreted) does not go beyond physician payments, and nothing in the subsequent certification orders could change that. Given this, an amendment is required to support the plaintiffs’ draft form of notice, which describes a much broader claim than currently certified. If the plaintiffs now wish to expand their claim, they must do so through a formal amendment application. Their proposed amended claim filed with the present application shows how amendments are required to clarify the scope.

[40] A court must be allowed to assess whether a fundamental expansion of a claim meets the certification requirements. As the Court stated in Douez v. Facebook, Inc., 2019 BCSC 715 at para. 16, “if the amendment sought would amount to certification of a new cause of action, the amendment must be assessed under s. 4 of the Act, which establishes the criteria for class certification”. Furthermore, an “amendment will be inappropriate where it would have the effect of reconstituting the action or fundamentally changing the nature of what has been certified”.

[41] The plaintiffs argue that no additional assessment of certification for the proposed amendments is necessary given that “the cause of action remains the same: unconstitutional taxation”. I disagree. A cause of action is the factual situation which entitles a person to a remedy, not the legal label attached to the claim: Swiss Reinsurance Company v. Camarin Limited, 2018 BCCA 122 at paras. 27-34; Total Meter Services Inc. v. GVM Integration, 2025 ONCA 321 at para. 29. In this case, the plaintiffs’ recasting of the Claim beyond MSP remittances would change the underlying factual situation and amount to certification of a new cause of action.

[42] The proposed expansion fundamentally changes the complexion of the case, both in terms of financial exposure and the evidence that would need to be gathered. The plaintiffs concede that expanding the Claim to include remittances made for all healthcare costs would increase their claim by hundreds of millions of dollars. For example, the plaintiffs note that remittances related to inpatient and outpatient hospital services likely exceed remittances related to medical practitioner services.

[43] The Province previews its argument on any such expansion application by remarking that it would cause a fragmentation of the Claim, which in turn may cause the Court to conclude that it is not preferable to include those expanded claims within the certified class proceeding. While I may not ultimately accept such arguments, I believe that the defendants should at least be given the opportunity to provide evidence and argument that will help the Court evaluate this issue.

[44] The debate in this case is a perfect example of the importance of tying all aspects of a class action back to the pleadings. Sometimes, the certification process becomes so complex and overloaded that the parties (and the Court) lose sight of the underlying pleading. It is absolutely essential to keep in mind that class certification is built upon the foundational pleading. Certification does not and cannot change the character of the underlying claim. The certification process simply extracts issues raised by the existing pleading for consideration in a single common trial. The class certification order does not alter the basis of the claim.

[45] The Province suggests that the plaintiffs should not be given an opportunity to amend or argue that an expanded claim is certifiable. In my view, that would be far too draconian. The plaintiffs did seek to amend, in the alternative, at the present application. All I have done in relation to that request is to adjourn this application so that it can be argued in the context of a more complete certification argument. There is no reason not to give the plaintiffs the opportunity to meet the test. The proper approach to the present issue was not so clear that the plaintiffs should be punished for not immediately proposing that the matter be resolved as directed.

[46] I draw comfort from the fact that the approach I have adopted is similar to that adopted by the court in Lacroix v. Canada Mortgage and Housing Corporation, 2007 CanLII 14335 (ON SC), [2007] O.J. No. 1648. In that case, the court had to consider the proper way to make amendments to a claim in a certified class proceeding. The court held that the best approach was to evaluate the amendment as part of a certification evaluation:

[7] When Lacroix-Ladouceur brought their original motion to amend, not only had the action been subject to the Act from day one, it had actually been certified as a class proceeding. The motion to amend could not therefore be considered simply as if the proceeding was an individual action. The special rules respecting class actions had to be considered and applied before any amendment could be finally allowed. The effect of the amendment was to convert a certified action into an uncertifiable action. This is a totally unacceptable and unfair result for the plaintiffs. As indicated this result was occasioned by the defendant’s insistence that the two aspects of the motion be heard separately. Obviously neither the plaintiffs nor the court were alive to the dangers of proceeding in this fashion. As a matter of good practice, I find that it was legally incorrect to allow the amendments. The amendments should not have been allowed before the amended amended claim had properly been the subject of the class proceeding certification process. If this had been done, the plaintiffs’ motion to amend would have been dismissed.

[47] The case management directions I previously issued were driven by the concerns summarised herein. However, I do not wish to have this long-running claim delayed any further than necessary. I am pleased to see that the parties have reserved January 26-29, 2026, to argue whether the claim and the certification order should be expanded.

“The Honourable Mr. Justice Branch”

[1] The plaintiffs accept that ICBC’s remittances to MSP are currently limited to medical practitioner services. They do argue though that prior to 2002, ICBC also remitted payments to MSP for chiropractic, massage and physiotherapy services, which were covered by MSP at that time.