Ontario sues Maple Leafs’ owner for costs of treating abuse victims

Legal action raises possibility that OHIP could file similar lawsuits against employers for the cost of mental health treatment

The Ontario government has filed a $1.5-million lawsuit against Maple Leaf Sports and Entertainment to recoup the costs of treating victims of sexual abuse that took place at Toronto’s hockey shrine.

The lawsuit was filed in late December by Ontario’s Ministry of Health and Long-term Care. It drew on a law allowing the Ontario Health Insurance Plan (OHIP) to recover the costs of treating personal injuries that are the result of the negligence or a wrongful act or an omission of another.

The province has been building the case over a number of years, said ministry spokesperson David Jensen. “We’ve been made aware of about 40 individual cases and we’ve then consolidated the claims.”

This legal action raises the possibility that OHIP would file similar lawsuits against employers for the cost of treating mental illnesses, including stress and depression, where employers are found liable.

Such subrogated lawsuits, as these cases are known, “could result from wrongful dismissal cases or sexual harassment cases if the injured party has required health-care services,” said Jensen.

He couldn’t provide information on how often employment-related cases have been pursued for subrogation.

The OHIP lawsuit is related to a series of sexual abuses in the 1970s involving about 90 victims, boys aged 10 to 15 at the time, that came to light in the mid-1990s. Martin Kruze, the victim who first came forward with the allegations, later committed suicide.

Gordon Stuckless, a long-time assistant equipment manager at Maple Leaf Gardens, which hosted the Toronto Maple Leafs until 1999, was convicted of 24 counts of indecent and sexual assault. John Paul Roby, an usher at the Gardens, was convicted of 35 counts of sexual abuse. Confidential settlements have been negotiated with the victims, reported to be more than $5 million.

In its statement of claim, the Ministry of Health and Long-term Care stated that the medical services provided to the victims included counselling and psychotherapy for a plethora of emotional, psychological and behavioural problems, “including delusion behaviour, hallucinations, general paranoia, anger, suicide attempts, diagnoses of schizophrenia and bi-polar disorder, alcohol and drug abuse, criminal behaviour, post-traumatic stress disorder, anxiety disorder, flashbacks, night sweats, depression, self-mutilation, bedwetting, etc.”

Under an old common-law doctrine called subrogation, a party that indemnifies someone for a wrong by a third party can recover the loss from the wrongdoer on behalf of the person it indemnifies.

The doctrine doesn’t just apply to insurers, but is routinely used by insurance plans. OHIP also has a right to subrogated action, but one that’s provided by the Health Insurance Act and not just by common law.

Rod Winsor, insurance lawyer at Toronto law firm Blaney McMurtry, said it’s routine for insurance companies to take subrogated action to recover costs.

“Normally it’ll be for things like negligence,” said Winsor. “Your product injures somebody, or someone is injured when he falls on your premises. These are typical negligence claims. There are also intentional tort claims, such as assaults, or more recently we’ve seen sexual abuse cases take centre stage.”

At the Ottawa law firm Williams McEnery, lawyer Jaye Hooper said in principle, OHIP has subrogated interest in employment-related cases, but she hasn’t seen it making such claims. Although it’s routine for her to ask OHIP if it wishes to claim any subrogated interest in a personal injury case, this is not a practice when it comes to employment-related cases, such as wrongful dismissal or even sexual harassment.

“In wrongful dismissal cases, we’re focused on recovering lost income, and any awards for mental distress come up only at the end,” said Hooper.

Ontario’s lawsuit against Maple Leaf Sports and Entertainment came on the heels of Ontario’s auditor general’s annual report, which called on the province to step up the recovery of OHIP costs through subrogated claims.

The auditor general noted that the province could potentially recover “in excess of $100 million a year more.”

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