To describe the circumstances under which the ministry has a right to be subrogated for damages and the procedures to be followed.
To ensure the ministry’s right to be subrogated to a person’s claim for any damages or compensation, where appropriate. To ensure that cases which may qualify for subrogation are identified and pursued.
Subrogation allows the ministry to recover monies paid under ODSP Employment Supports for goods and/or services to a client where the client is taking court action against a third party due to a wrongful act, negligence or breach of contract.
It is the ministry’s policy that past and future costs are the responsibility of the party held legally responsible for the client’s disability, subject to liability or insurance policy limits.
Where the Employment Supports Specialist is asked to appear as a witness in a civil suit, he/she must ask to be subpoenaed. The client’s file must also be subpoenaed before it can be used in court. However, it should be noted that the subpoena does not authorize release of file information prior to the court appearance.
The Employment Supports Specialist must ensure that all requirements under the Freedom of Information and Protection of Privacy Act (FIPPA) are satisfied. To release information on file prior to Court, the following procedures apply. In general, all communication relating to a subrogation or potential subrogation matter must take place between the ministry’s Legal Services Branch and the client’s lawyer.
Requests not made under FIPPA:
Where a lawyer’s request for information about a client relating to a subrogation or potential subrogation matter is not made expressly under FIPPA, the request is referred to the ministry’s Legal Services Branch which is responsible for handling these requests.
Requests made under FIPPA:
Section 42 of the Freedom of Information and Protection of Privacy Act states:
“An institution shall not disclose personal information in its custody or under its control except,
(b) Where the person to whom the information relates had identified that information in particular and consented to its disclosure.”
A lawyer who requests client information under FIPPA, relating to a subrogation, or potential subrogation matter, must provide the local office with the signed consent of the client for disclosure of information. The matter is then referred to the designated decision-maker who is authorized to release the information. A copy of the request for information and any related correspondence is forwarded immediately to the Director of the Legal Services Branch.