Toronto Injury Lawyer Blog
Person gets bit by a dog.
Person sustains objective injury (cuts, lacerations, stitches, sutures, or even worse)
Person sustains damages and/or quantifiable loss from said dog bite injury.
Person retains a personal injury lawyer.
Person wins a judgment or settles their case outside of Court.
Person cashes in their settlement cheque.
It all sounds pretty easy….
But it’s not.
The two most difficult legal concepts for dog attack victims to grasp in a dog attack case is insurance coverage; along with the OHIP Subrogated Claim. Both concepts are not unique to dog attack cases, however, they play out in a unique way compared to other personal injury cases.
Let’s start with the idea of insurance coverage for a dog attack case.
Assume that the dog owner is either:
a) Homeless without assets
b) Not homeless, but living off Ontario Works or ODSP and residing in public housing
c) Resides in a rental apartment without any rental coverage
d) Is visiting Canada from a foreign country, and brought their dog along for the visit
e) The dog owner cannot be tracked down by Animal Control, the Plaintiff, Neighbours or Witnesses to the Dog Attack
In all of these examples, finding insurance coverage will prove to be very difficult. Having insurance coverage attach to a dog owner/defendant is very important in order for the Plaintiff to achieve compensation. A Plaintiff has to remember that you cannot get blood from a stone. Suing a party who is destitute, without assets, or unknown; will not achieve any meaningful monetary results. A Plaintiff can secure a Judgment against a person without assets. But, if the Defendant cannot satisfy that Judgment, then what good is that to a Plaintiff if their goal is to get compensation for their injuries. If the Plaintiff’s goal is achieving civil justice, then that’s a different conversation. But all civil justice will achieve is securing a monetary judgment upon which you cannot collect because the Defendant is, for lack of a better term, broke! The Judgment is simply just a piece of paper. The Defendant does not go to jail because they cannot pay out on a civil judgment in a personal injury case. Nor can a Judge order that a Defendant pay back services in kind in order to pay off the value of the Judgment; meaning; the Judge cannot for the Defendant to do odd jobs for the Plaintiff in order to pay off the debt owing. That’s not how our civil courts work for personal injury cases.
If you are seeking “civil justice” against a judgment proof Defendant (because they are broke), then it will likely cost you money. A personal injury lawyer will have difficulty taking a case on a contingency fee basis; if there’s no reasonable prospect of payment at the end of the case. The dog bite case will then become an exercise in collections from a dead beat Defendant; which can be exhausting, expensive; and may prove to be fruitless. You don’t want your personal injury lawyer chasing a ghost, or a judgment proof dead beat defendant. That is unless you have money to burn. I’m sure any lawyer would be happy to charge you tens of thousands of dollars of their time on such a collection exercise where there is no guarantee or reasonable prospect of a monetary recovery.
This is why insurance coverage is so important in dog bite cases. The merits of the case, along with the injuries are afterthoughts if there is no coverage there. Once coverage is establishes, it’s a completely different story.
This concept is very hard for Plaintiffs to grasp because they are fixated on merits of the claim; the dog attack itself; the ensuing injuries from the dog attack; along with the damages resulting from the dog attack. All of these things are relevant, and important. But, they mean very little if there is no coverage there. You can have a meritorious case which has all of the ear marks of a winner; but if there is no insurance coverage; it won’t matter much.
Which brings us to the second concept which is hard for Plaintiffs to grasp in a dog bite case. That’s the concept of the OHIP Subrogated Claim. In every personal injury case which is NOT a car accident case; the Minister of Health is entitled to recover what they have paid out in healthcare/treatment costs related to the subject accident. This is called the Minister’s subrogated interest of the Minister’s Subrogated Claim. You can read more about the OHIP Subrogated Claim and how it works here.
Generally, the Minister will reduce that claim based on a number of factors such as liability, risk, and the amount recovered proportional to the amount being claimed. The Minister can show some flexibility on their subrogated interest in order to net the Plaintiff more money in his/her pocket so that the case can get resolved. But, in dog bite cases, the Minister is more rigid. Dog Bite cases are reverse onus cases where the Defendant dog owner is presumed at fault for the offense; unless there is evidence showing otherwise. Because of this, there is no reduction for any contributory negligence (fault on behalf of a Plaintiff) unless there are extenuating circumstances or aggravating behaviour displayed by a Plaintiff in the case.
What this means is that a Plaintiff will see their award being reduced not only by legal fees, HST and disbursements payable to their personal injury lawyer; but also an amount which will be clawed back by the Ontario Government for the health care costs associated with the case itself. And this subrogated interest does not exist in car accident cases, which has always struck Brian Goldfinger as rather odd. There is a rationale behind that, but it has never really made much dollars or cents to Brian Goldfinger. The personal injury lawyer needs to inform his/her client of these additional costs so that they understand where the money from their case is going. Most people think that healthcare in Ontario is free. This is a direct example of how it’s not.
