Legal technicality could take away annuity that keeps Joellan Huntley alive but NS does not care

By Stephen Pate – One of the worst things that happens to people with disabilities is they lose their ability to earn an income and are reduced to poverty.

Photo caption Byron Huntley wheels his daughter Joellan Huntley, 33, into Nova Scotia Supreme Court on Wednesday. The Nova Scotia government is arguing to reverse a major court settlement won by a young woman left permanently disabled in a car crash more than 18 years ago. (INGRID BULMER / Staff)

There is some relief for accident victims who successfully sue for their extra living expenses. Joellan Huntley, 33, is one of those people, who severely disabled in an auto accident at age 15 has a modest annuity that provides the extra care to make sure her survival.

Joellan has lived at a residential care facility since the accident and she is totally dependent on care. Her million $ accident settlement has been wisely invested to pay her a lifetime annuity.

It took 11 years for the settlement to be paid and in the meantime the Province of Nova Scotia paid for Ms. Huntley’s care and rehabilitation. Now they want their money back, all of it, and they don’t care if Ms. Huntley becomes a destitute ward of the state in the process.

Some will say that’s fair. She got the support and care and should pay back what it cost the taxpayers. Others, including her family and their lawyer, argue the extra money gives her a better quality of life which she deserves.

In the Province of Nova Scotia, which has over-spent for decades and squandered their oil and gas resources with bad business deals, a severely disabled person makes an easy target.  Pick a law and attack the disabled person’s fund. When that law does not work, pick another law. The goal is to get the money.

This is not surprising for Nova Scotia which used to have one of the best systems for rehabilitation for people with disabilities in Atlantic Canada. I know since I was born in Halifax, Nova Scotia and contracted paralytic polio at age 3. Other than a few hospital bills both the March of Dimes and the province paid for all my doctors, hospital stays and rehabilitation.  I will be forever grateful but I could not live there today since I am disabled and need help.

I was surprised to learn in 1995 that Nova Scotia was on the verge of insolvency after decades of overspending. At that point, the Province had been in a protracted battle with health care providers for years, a battle that continues to this day. That battle is just one skirmish in the war to squeeze money out of Nova Scotians to pay for the government’s debt.

Disability and mental health care in Nova Scotia has fallen far behind the norm for Canada.  A person with a disability who needs a wheelchair or other assistive device must find the money on their own. The Province of Nova Scotia does not have program of disability supports despite agreeing to basic recommendations in the Federal Task Force on Disability chaired by MP Andrew Scott.= in 1995.

And Joellan Huntley is at serious risk of being reduced to penury by the Province of Nova Scotia.

EVA HOARE Chronicle Herald –  Joellan Huntley’s parents say they just want to be able to look after their daughter.

But their ability to do that got complicated Wednesday as their quest moved to a Halifax courtroom in Nova Scotia Supreme Court.

The province wants to claw back some or all the money Huntley won in an insurance settlement. She suffered catastrophic brain injuries in an April 1996 car crash.

Huntley’s parents, Byron Huntley and Louise Misner of Scots Bay, have been using the roughly $1 million settlement awarded in 2003 to give her extra therapies and comfort.

Joellan, who can’t talk or walk, has lived at Kings Regional Rehabilitation Centre since a year after the crash, which killed two other people. Money from the majority of the settlement started coming in 2007.

The disabled woman, now in her mid-30s, has relied upon extra therapies to help get her through bouts of bronchitis and pneumonia, said her parents. And some of the settlement has also gone toward therapy to help her communicate.

The parents argue that without the settlement money, those extra therapies and comforts will be gone, and her life will be dramatically shortened.

But the province signalled last May it was intending, through legislation, to go after the majority of the settlement in order to pay for Joellan’s care.

“I’m just looking for the ability to look after Jo, nothing more,” Byron Huntley said outside court Wednesday, standing next to Joellan, who was wheeled in to court on a modified gurney.

“Children are given to you to look after,” said Misner. “It’s a great gift. If it’s all taken away, it’s really scary.”

She often stroked her daughter’s face during breaks in the proceedings and the young woman broadly smiled back at her.

Adriana Meloni, the province’s lawyer, told the court the government wants to recoup a portion of the roughly $1 million in total it has paid for Joellan’s care at the rehabilitation centre.

Meloni said the exact amounts would be discussed later, if the case proceeds.  The province is entitled to the money under the Social Assistance Act, she argued.

“The act itself is paramount,” Meloni told Justice James Chipman. “The tragedy of it ought not dissuade the province of (exercising) its right of recovery.”

She also argued it was incumbent upon Joellan’s guardians to know they would have to pay the province from the insurance settlement.

The province had originally proceeded under the Health Services and Insurance Act but eliminated that option and is operating under the Social Assistance Act, said Meloni.

Ray Wagner, who has represented Joellan’s family since shortly after the crash, contended that the province doesn’t have the absolute right to recoup the cash. Wagner said the section of the Social Assistance Act the province is using says it may recover cash, not that it shall.

He also argued that years ago, he and his clients believed the Health Services and Insurance Act, which requires citizens to pay levies when they buy auto insurance, was at play.

Therefore, the province would be over-recovering by taking Joellan’s insurance settlement, since it already receives levies collected provincewide, he said. (The levy system still exists.)

“We were dealing with the Health Services and Insurance Act, which has a levy system. It’s our position it is all dealt with in the levy because this is a car crash case.”

Wagner also said the province hasn’t made any moves for over a decade since the insurance money was awarded, and his clients had no intention of hiding anything from the province.

“I can tell you this has taken a great toll on the family. We are still without resolution.”

If the province had followed its own rules, he said, his client would have been able to appeal any decisions from reviews year over year, but no such reviews have occurred. Now there is an “accumulated” press on for the money, said Wagner.

Joellan lives on a structured settlement sum of just over $3,000 monthly, and there is about $325,000 in a fund from the settlement. The finance minister also holds $165,000 from the insurance award in trust.

Wagner said the province wants it all but added that Joellan’s parents would be more than willing to give back the balance should the young woman die. They have been frugal with the award and haven’t been taking Joellan on lavish trips, he said.

“When it’s over, God forbid when, the province can have whatever’s left over.”

Earlier in the proceeding, Chipman appeared to also be concerned about how long it has taken for the province to go after the cash.

“I’m keen to understand what the province’s position is, that we’ve got this (passage) of time of over 10 years with nothing being done,” said Chipman.

The province was aware in 1996 that an insurance claim was pending in the Huntley case but didn’t make any serious moves until 2007, he said.

Chipman also seemed concerned about the future prospects of major insurance claim cases, noting that under the existing legislation, it appeared the province can come in and take entire settlements.

“If that’s the way of the world, then why would we ever pursue anything?” the judge asked. “Why would they bother? What is the point?”

He later said this case is “novel,” adding that this issue has only recently come to light with this case. “Here, unfortunately until this very case, it seemed to be rather under the radar.”

Meloni seemed to hint that the province, due to a change in regulations in 2012, may only be interested in recouping the cost of care for Joellan. That would leave general damages and other sections of the award left alone.

But Wagner said even if that happened, there is a Social Assistance Act provision that allows the province, if it deems it necessary, to return and claw back some more.

“It becomes arbitrary,” he told Chipman. Meloni said that “as it is on the books now, that is what it is.” “The province is under a public duty to recover.”

Chipman has reserved decision until after Jan. 9.

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