Joel McCoy

The defendant employer brought a motion to stay the plaintiff's wrongful dismissal action, arguing the parties were bound by a mandatory arbitration clause in the plaintiff's employment contract.

The court first determined that the plaintiff, an insurance field agent, was an employee rather than an independent contractor.

The court then found that the second and third contracts, which introduced the arbitration clause, were invalid for lack of fresh consideration because they diminished the plaintiff's rights without providing any new benefit.

Consequently, the arbitration agreement was invalid under section 7(2) of the Arbitration Act, 1991, and the motion to stay the action was dismissed.

On a motion to approve settlement of a medical malpractice action involving an apparently incapable plaintiff, the court found the record materially deficient as to the merits, the plaintiff's incapacity, the terms of settlement, counsel's fee arrangements, and the disposition of settlement funds.

The court expressed serious concern about the contingency fee retainer, the unexplained allocation of party-and-party costs within an all-inclusive settlement, and the absence of safeguards for funds payable to an incapable person.

The settlement was approved only on the condition that the net settlement funds, less the OHIP subrogated claim, be paid into court to the credit of the action.

The court also directed a motion for directions on notice to the Public Guardian and Trustee and forwarded the endorsement to the Public Guardian and Trustee and the Law Society of Upper Canada.