When you’ve suffered injuries as a result of another party’s negligence, focusing on the many details of a personal injury claim can be exhausting. While navigating a personal injury claim as a victim can be complicated, dealing with the rights of third parties – such as subrogation rights – can make it even more challenging. `
What is subrogation, and how does it apply to a personal injury claim in Ontario? Below, we’ll discuss subrogation in further detail and some of the more common subrogation rights that arise in personal injury claims in Ontario.
Subrogation claims can be complicated, and it’s not always easy to determine whether subrogation rights exist – which is why it’s critical to consult with a skilled personal injury lawyer as soon as possible following an accident.
What is Subrogation?
Subrogation is a legal concept that allows an indemnifying party to “step into the shoes” of the party they are indemnifying and pursue claims against a third party to recoup losses.
For example, someone drives into a fence on your property, resulting in damage. While you can recover the damage’s cost through your insurance, your insurer could elect to recover the amount they paid you from the party that drove into your fence through subrogation.
Alternatively, let’s say that you’re injured due to another party’s negligence. As a result of your injury, you receive treatment for your injuries covered by the Ontario Health Insurance Plan. The Ministry of Health and Long-Term Care has a right of subrogation to recover the cost of your treatment from the party responsible for your injuries or their insurer.
In either case, the principle is the same – the insurer, who has paid the expenses relating to your losses, has a right to go after the party who committed the wrongdoing to recover the expenses they covered.
Subrogation in Personal Injury Claims
Subrogation can often come into play in personal injury claims, given that negligence victims often receive treatment or other coverage from an insurer.
As noted in the examples above, subrogation may be relevant when your insurer has paid claims relating to the accident, such as damage to a vehicle. Subrogation is also relevant to injury claims – that is, if a party has covered or compensated you for benefits, such as medical treatment, or other expenses, they may be entitled to recover those expenses through subrogation.
Below, we’ve outlined just a few common personal injury subrogation rights and a case where subrogated rights do not come into play.
The Ontario Health Insurance Plan
Through subrogation, the Ministry of Health and Long-Term Care can recover expenses or treatment paid to an injured party through the Ontario Health Insurance Plan. The Ministry’s subrogation right is outlined in Ontario’s Health Insurance Act, RSO 1990, c H.6.
Note that the Ministry’s subrogation right does not typically apply to the subrogation of expenses paid relating to personal injuries arising from a motor vehicle accident.
Statutory Accident Benefits
In Ontario, victims of motor vehicle accidents are entitled to various benefits to assist with their recoveries – such as income replacement benefits and coverage for medical and rehabilitative treatment – under Ontario’s Insurance Act, RSO 1990, c. I.8.
Ontario uses a “no-fault insurance” system, which means that – assuming you are eligible for benefits – your insurer will provide these benefits regardless of who was at fault for a motor vehicle accident. To that end, subrogation does not come into play for statutory accident benefits.
The Workplace Safety and Insurance Act
If you are injured in a workplace accident, receive benefits from the Workplace Safety and Insurance Board (WSIB), and later advance a civil claim, you will likely need to advance a subrogated claim on WSIB’s behalf under the Workplace Safety and Insurance Act, SO 1997, c. 16, Sch. A.
Other Insurance Providers
If you carry other types of disability benefits – such as long-term disability benefits through your employer, you may also be required to advance a subrogated claim. As the terms of insurance policies can vary wildly, it’s best to provide this information to your personal injury lawyer before advancing a claim.
The Criminal Injury Compensation Board
While it has since been eliminated, the Criminal Injury Compensation Board had a right of subrogation for payments relating to injuries arising from criminal action (such as an assault). This right was outlined in the Compensation for Victims of Crime Act, RSO 1990, c. C.24, and gave the Board subrogation rights relating to certain payments made to the victim by the Board.
How Subrogation Affects Personal Injury Claimants
As noted above, the insurer will not come after the injured party directly to recoup their losses – provided their subrogation claim is preserved. Rather, the injured party must ensure that they take steps to preserve any subrogated parties’ rights when advancing their personal injury claim.
What Happens if I Don’t Preserve a Subrogation Claim in a Personal Injury Action?
If you fail to preserve a party’s subrogation rights in your personal injury claim, you may find yourself directly on the hook for the full amount of their subrogation claim.
It’s, therefore, critical to consider subrogation at all stages of your claim. For example, before filing a personal injury claim, you’ll want to know whether subrogation rights apply. And, when settling a claim – regardless of whether you have already filed a claim – you’ll need to ensure that any subrogation rights are reflected in the settlement agreement.
Subrogation and Personal Injury Claims in Ontario: Conclusions
Determining whether another party’s subrogation rights factor into your personal injury claim can be daunting. In any personal injury case, consulting with a skilled personal injury lawyer is critical before acting. In personal injury cases involving subrogation, other entities with potential subrogated claims must be identified early in the process, and steps must be taken to preserve their interests. Failing to preserve a subrogated party’s right can lead to unintended consequences down the line.
Skilled Personal Injury Lawyers Serving Eastern Ontario and North Bay
At Tierney Stauffer LLP, our skilled personal injury lawyers have many years of experience going up against insurance companies to get full and fair settlements for our clients. We will advise you of the best course of action to obtain the maximum possible settlement so that you can recover financially and move on with your life.