In a medical malpractice action, can provincial insurers who have subrogated claims be included in the claim?

Ontario, Canada

The following excerpt is from Peter v. Medtronic, Inc., 2007 CanLII 53244 (ON SC):

In Heward v. Eli Lilly, Cullity J., at para. 101, specifically expanded the common issue regarding the defendants’ liability to account to include the provincial insurers who have subrogated claims. Leave was not given to appeal this aspect of the decision.

In this case, the proposed common issue with respect to waiver of tort (set out below under my consideration of the common issue requirement) similarly asks whether, if the Class members can elect to have damages determined through an accounting and disgorgement of proceeds, for whose benefit is such accounting to be made. I take this to address the interests of the provincial health insurers. As suggested in Heward v. Eli Lilly, a more specific reference would be helpful.

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