C. Wall

Following a motion concerning the validity of an infant settlement within a global personal injury settlement, the court addressed costs.

The plaintiffs had successfully obtained an order setting aside the global settlement after it was discovered that required judicial approval of the infant settlement had never been sought.

The failure arose from the plaintiffs’ former counsel breaching an undertaking to obtain approval, while defence counsel failed to follow up on the undertaking.

The court concluded that both sides bore responsibility for the procedural failure that rendered the settlement vulnerable.

In the circumstances, the court ordered that each party bear their own costs.

The plaintiffs brought a motion to sever a minor’s claim from a global $700,000 motor vehicle accident settlement and to set aside the settlement on the basis that the minor later developed catastrophic psychological impairments after witnessing the accident.

The settlement had been concluded in 2010 but court approval for the minor’s claim was never obtained as required by Rule 7.08 of the Rules of Civil Procedure.

The court held that settlements involving minors are not binding without judicial approval and that the evidentiary record did not support severing the minor’s portion from the global settlement.

Given the lack of court approval, absence of apportionment of the settlement funds, and the disbursement of most of the funds by former counsel, the court set aside the entire settlement.

The defendant’s request to order the return of the funds was declined because former counsel was not a party to the proceeding.

The defendants brought a motion under Rule 33.02(1) of the Rules of Civil Procedure to determine the location of a defence medical examination of the plaintiff.

The plaintiff opposed travelling from Toronto to Hamilton due to discomfort with unfamiliar surroundings and the need to care for her adult daughter with disabilities who required constant supervision and medication.

The court held that defendants have a prima facie right to select the examining physician and that the modest additional travel time did not justify overriding that right.

Concerns regarding the plaintiff’s daughter were addressed by requiring the defendants to provide transportation and permitting the daughter to remain in the examination room.

The motion was granted with conditions and costs awarded to the defendants.