A claim for health care services must be added to every statement of claim wherein there is a claim "against a person alleged to be a wrongdoer for damages arising from or related to ... personal injury or death". This is not a claim for damages that might have been previously incurred (or to be incurred) by the litigant but instead is a claim for public costs. These ‘public costs" would not in the past have been included in a damage award because they are not costs of the claimant. Effectively the legislation hijacks the plaintiffs litigation process in order to benefit a third-party, namely, the government.
That is only the start of this sweeping legislation. The government must be served with a copy of the writ and statement of claim within 21 days after commencing a legal proceeding (Section 4). The legal proceeding must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court (Section 5). At least 21 days before a beneficiary or his or her legal representative enters into any settlement relating to the personal-injury, the beneficiary or legal representative must give notice to the Minister in the prescribed form and in accordance with the regulations. (Section 12). The claim against a person alleged to be a wrongdoer can not be settled unless the person who would be liable to make payments under the proposed settlement gives to the Minister notice of the proposed terms of settlement and the Minister consents in writing to the proposed settlement (Section 13). The court can not set aside, dismiss or strike out a health care services claim unless the court is satisfied that the government has been given a reasonable opportunity to appear and make representations (Section 5).
The court cannot even make an order disposing of a legal proceeding unless it is satisfied that the government has been given both the written notice required under section 4 and the written notice of the application for the order of the final disposition (Section 5). The government has the right to intervene in the litigation or step in and take over the healthcare services claim portion of the proceeding (Section 6).
There are some notable exceptions to the application of the Act. It does not apply to injury claims brought against wrongdoers having basic coverage under the Insurance (Vehicle) Act. Claims against auto policies other than ICBCs basic coverage likely will be affected. The act also does not apply to Workers Compensation claims and claims arising as a result of tobacco related wrongs which are covered under the Tobacco Damages and Health Care Cost Recovery Act.
The type of actions that might be affected by the Ontario or B.C. legislation could potentially be very broad if the legislation is aggressively administered. Most unjust dismissal actions include a claim for aggravated damages. It is the same with other breach of contract or negligent misstatement claims. Often the pleadings assert that the plaintiff has suffered mental injuries. A mental injury is a personal injury. A health care claim!