Toronto Injury Lawyer Blog
What is the most valuable card in your wallet?
Is it your driver’s license? Probably not as it just allows you to drive, and not everyone owns or has access to car. A driver’s license can’t buy you food either.
Is it your credit card? Your credit card can help you buy food, but there are limits on how much you can buy on it.
How about your debit card? Same answer as above, except you aren’t purchasing on credit. Rather, the card is only as good as your bank balance.
How about your Costco Membership Card? Great card. You’ll have access to a lot of stuff at reasonable prices, but certainly not the most valuable card in your wallet.
The most valuable card for all Canadians is their health card. When a Canadian need to go and see a doctor, they won’t see a bill in return for the doctor’s services. If a Canadian is hurt, or injured, or has some sort of medical emergency and they require surgery accompanied by a lengthy stay in hospital; there won’t be any bill for that stay which they ever see. The cost of those medical services, food etc. is very very expensive. You can argue about the quality of services, or the timeliness of those medical services all you want. The reality is that there are no monetary limits on your OHIP Healthcare card. Once the medical treatment has been done, the patient doesn’t see any bill.
But there is one exception. Can you guess what it is, and how it relates to personal injury law?
If you have been hurt or injured in an accident, and you are seeking damages from the at fault party (a Third Party); then you MUST repay OHIP for the medial services incurred in relation to your claim and your injuries.
Most people have NEVER heard of this. Isn’t health care supposed to be “free“? And if it’s “free”, then why is a Plaintiff forced to repay OHIP for the services incurred?
I can tell you that OHIP isn’t “free”, and an opportunity for the government to get their money back won’t be missed.
This concept, of the government getting their money back for OHIP services incurred is called “subrogation“. You will hear personal injury lawyers and insurance lawyers speak about “OHIP’s subrogated claim” or “OHIP’s right to subrogation“. What this means is that OHIP is entitled to get their money back on what has been paid out in medical services on a personal injury claim.
OHIP’s right to subrogation exists from the Health Insurance Act R.S.O. 1990 c. H. 6. Here is what it has to say:
Subrogation
30 (1) Where, as the result of the negligence or other wrongful act or omission of another, an insured person suffers personal injuries for which he or she receives insured services under this Act, the Plan is subrogated to any right of the insured person to recover the cost incurred for past insured services and the cost that will probably be incurred for future insured services, and the General Manager may bring action in the name of the Plan or in the name of that person for the recovery of such costs.
But not all personal injury cases are covered. There is only ONE type of personal injury claim which is immune to OHIP’s right of subrogation. Can you guess? The exception is laid out below:
Exception
(4) Despite subsection (1), the Plan is not subrogated to the rights of an insured person in respect of personal injuries arising directly or indirectly from the use or operation, after the 21st day of June, 1990 and before the day section 267.1 of the Insurance Act comes into force, of an automobile in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule under the Insurance Act. 1993, c. 10, s. 53.
Exception
(5) Despite subsection (1), the Plan is not subrogated to the rights of the insured person, as against a person who is insured under a motor vehicle liability policy issued in Ontario, in respect of personal injuries arising directly or indirectly from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Ontario or in any other jurisdiction designated in the Statutory Accident Benefits Schedule under the Insurance Act.
If you guessed that car accidents and automobile accidents were the only category of personal injury claims where OHIP did NOT have a subrogated interest, you would be correct!
It seems remarkable that car accident cases are immune to OHIP’s subrogation reach given the fact that car accident cases make up a large percentage of a personal injury lawyer’s caseload and are the cause of lots of personal injury cases.
The law requires that all injured accident victims claim OHIP’s subrogated interest as part of their action:
Subrogated claim included in action
31 (1) Any person who commences an action to recover for loss or damages arising out of the negligence or other wrongful act of a third party, to which the injury or disability in respect of which insured services have been provided is related shall, unless otherwise advised in writing by the General Manager, include a claim on behalf of the Plan for the cost of the insured services. R.S.O. 1990, c. H.6, s. 31 (1).
When the money is recovered in a personal injury case, it has to be paid back to the Minister of Finance:
Recovery paid to Ontario
(2) Where a person recovers a sum in respect of the cost of insured services, the person shall forthwith pay the sum recovered to the Minister of Finance. R.S.O. 1990, c. H.6, s. 31 (2); 2006, c. 19, Sched. L, s. 11 (5).
In summation, when a Plaintiff “wins” his/her personal injury case and gets money from the at fault defendant, the Plaintiff MUST repay OHIP’s service bill. This is really strange for a Plaintiff because the cost of individual medical services isn’t something which is normally discussed in Canada; and Canadians aren’t familiar with how much the cost of treatment should be. The only instance where a Plaintiff does not need to repay OHIP is when the accident occurred arising from then use or operation of a motor vehicle.
